Land and Environment Court New South Wales Medium Neutral Citation: Mackenzie Architects International Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1699 Hearing dates: Conciliation conference on 19 August, 16 September, 11 and 22 October 2021, final agreement filed 22 October 2021 Date of orders: 18 November 2021 Decision date: 18 November 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Pursuant to Section 8.15(3) of the EP&A Act, the Applicant is to pay the Respondent's costs that were thrown away because of amending the Development Application in the sum of $6,000.00. (2) The request, pursuant to clause 4.6 of the Bankstown Local Environment Plan 2015, to vary the development standard for height of buildings contained in clause 4.3, prepared by Chapman Planning Pty Ltd, dated 14 September 2021 is upheld. (3) The appeal is upheld. (4) Consent is granted to Development Application DA-1326/2015 for the demolition of all existing structures and the construction of a four storey shop top housing development comprising basement car parking, four ground floor retail/commercial premises and 32 residential units on the upper levels on land at 229 Tower Street, Panania, subject to the conditions contained in Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential apartment development – cl 4.6 written request – agreement between the parties – orders Legislation Cited: Bankstown Local Environmental Plan 2015, cll 2.3, 2.7, 4.3, 4.6, 5.21, 6.1 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 50, 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy No 55—Remediation of Land, cl 7 Texts Cited: Bankstown Development Control Plan 2015 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021) NSW Apartment Design Guide Category: Principal judgment Parties: Mackenzie Architects International Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: K Potter (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Yates Law Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2021/151756 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA-1326/2015 (DA) by Canterbury-Bankstown Council (the Respondent). The DA sought consent for the demolition of all existing structures and the construction of a four storey shop top housing development comprising basement car parking, four ground floor retail/commercial premises and 32 residential units on the upper levels on land at 229 Tower Street, Panania (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 August, 16 September, 11 and 22 October 2021. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams. 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended Development Application, subject to conditions. 5. Whilst the amended Development Application remains substantially the same as the original DA, a series of changes cumulatively resolve the contentions raised by the Respondent, which in turn relate primarily to visual privacy, pedestrian access and address, urban design, solar access and parking, amongst other contentions. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended Development Application. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. In that regard, I am satisfied the DA was made with the consent of the owner of the site, by written confirmation on 6 October 2015 to the Applicant in these proceedings. 9. The parties agree, and I am satisfied, the Bankstown Local Environmental Plan 2015 (BLEP) is a relevant environmental planning instrument. The site is zoned B2 Local Centre and the proposed development, characterised as shop top housing, is permissible with consent. 10. The parties agree, and I am satisfied, that the amended Development Application is consistent with the B2 zone objectives as required by cl 2.3(2) of the BLEP, because the proposal provides for residential uses compatible with the mix of uses in local centres. 11. The parties agree, and I am satisfied, that cl 2.7 - Demolition requires consent, of the BLEP has been met and the amended Development Application seeks consent for demolition of existing structures on the site. 12. The parties agree, and I am satisfied, that with the exception of cl 4.3 - Height of Buildings, all principal development standards of the BLEP have been met by the proposal. 13. The parties agree, and I am satisfied, that the maximum height of building development standard set out at cl 4.3 of the BLEP and applicable to the site, is 14m. 14. The amended Development Application exceeds the maximum height of building development standard by up to 550mm attributable to a lift overrun and balustrade on the western portion of the roof. 15. In such an instance, cl 4.6(3) of the BLEP requires consideration of a written request from the Applicant demonstrating compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 16. Clause 4.6(4) of the BLEP requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 17. Additionally, cl 4.6(4)(b) of the BLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. 18. As required by cl 4.6 of the BLEP, the Applicant has prepared a written request seeking to vary the height of building development standard. The parties agree and I am satisfied that the written request adequately justifies the exceedance of the height of building development standard for the following reasons. 19. The height variation of up to 550mm represents a maximum variation of 3% of the 14m development standard. The variation results from the provision of a secondary communal open space area on the roof of the proposal. The amended Development Application otherwise presents as a four-storey form to Tower Street and Eddie Avenue, and each elevation of the building otherwise complies with the 14 m height building standard. The minor variation in height is not visible from critical vantage points within the local vicinity and brings with it no significant environmental impacts or additional overshadowing. 20. The parties agree, and I am satisfied, that cll 5.21 - Flood planning, and 6.1 - Acid sulfate soils, of the BLEP do not apply to the site as it is not identified in the relevant corresponding maps. 21. The parties agree, and I am satisfied, that State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The parties agree the site and its immediate vicinity have historically not been used for purposes likely to contribute to contamination. As such, I am satisfied cl 7(1) of SEPP 55 has been appropriately addressed. 22. The parties agree, and I am satisfied, that the amended Development Application is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2000 (Reg), the Applicant's architect, Mr Dugald Mackenzie (registered architect 6033), has prepared an amended Design Verification Statement dated 25 September 2021, fulfilling the requirements of cl 50(1AB) of the Reg. 23. I am satisfied a BASIX certificate has been submitted in support of the amended Development application, fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX certificate. 24. Finally, in accordance with s 4.15(1) of the EPA Act, the parties agree, and I am satisfied, the amended Development Application is in the public interest and may be granted consent. 25. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 26. Accordingly, the Court notes that: 1. Pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the Development Application with the consent of the Respondent. 2. The Applicant has uploaded the amended Development Application to the NSW Planning Portal on 21 October 2021, comprising the documents and plans set out in Condition 2 of Annexure A. 3. The Applicant has filed the amended Development Application with the Court on 22 October 2021. Orders 1. The Court orders that: 1. Pursuant to Section 8.15(3) of the EP&A Act, the Applicant is to pay the Respondent's costs that were thrown away because of amending the Development Application in the sum of $6,000.00. 2. The request, pursuant to clause 4.6 of the Bankstown Local Environment Plan 2015, to vary the development standard for height of buildings contained in clause 4.3, prepared by Chapman Planning Pty Ltd, dated 14 September 2021 is upheld. 3. The appeal is upheld. 4. Consent is granted to Development Application DA-1326/2015 for the demolition of all existing structures and the construction of a four storey shop top housing development comprising basement car parking, four ground floor retail/commercial premises and 32 residential units on the upper levels on land at 229 Tower Street, Panania, subject to the conditions contained in Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (366007, pdf) Architectural Plans (26291023, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2021