Land and Environment Court New South Wales Medium Neutral Citation: Dunlop Chidiac Pty Ltd v Canterbury-Bankstown Council [2022] NSWLEC 1188 Hearing dates: Conciliation conference on 11 February 2022 Date of orders: 8 April 2022 Decision date: 08 April 2022 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The applicant is to pay the respondent's costs thrown in the amount of $3,500 pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of these orders (2) The written request pursuant to clause 4.6 of the Canterbury Local Environmental Plan 2012 to vary the development standard in clause 4.3, height of buildings, is upheld; (3) The appeal is upheld; (4) Development consent is granted for development application no. DA/698/2021, for the demolition of the existing dwellings; construction of a four (4) storey 27 unit 'residential flat building under the provisions of the Affordable Rental Housing SEPP including basement parking for 33 vehicles and ancillary structures at 13-15 Nicholas Avenue, Campsie, subject to the conditions contained at Annexure A. Catchwords: APPEAL – development application – residential flat building containing affordable housing units – conciliation conference – agreement reached – orders made Legislation Cited: Canterbury Local Environment Plan 2012, cll 4.3, 4.6 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 50, 55, Sch 1 Environmental Planning and Assessment Regulation 2021, Sch 6 cl 3 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 13, 14, 16A, State Environmental Planning Policy (Housing) 2021, Sch 7 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, July 2015 Category: Principal judgment Parties: Dunlop Chidiac Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: A Boskovitz (Applicant) M Bonanno (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2021/307505 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of the existing buildings and the construction of a 4-storey residential flat building with a proportion of the apartments to be dedicated as affordable housing under the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), at 13-15 Nicholas Ave, Campsie. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached following a conciliation conference, and filed on 28 March 2022. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 February 2022. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 28 March 2021, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). I note that despite the repeal of the EPA Regulation 2000, it continues to apply to the development application the subject of the development appeal, pursuant to Sch 6 cl 3 of the Environmental Planning and Assessment Regulation 2021. 4. The changes brought about by the amendment to the development application include additional setbacks and the provision of front and rear landscape settings, the provision of bin storage, and a change in the design of the roof form to a pitched roof form. These changes reduce the overall bulk of the building. 5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a comprehensive Agreed Statement of Jurisdictional Prerequisites that sets out the parties' agreement on the jurisdictional matters about which the Court is required to be satisfied prior to the grant of development consent. 6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The site is zoned R4 high density residential under the Canterbury Local Environment Plan 2012 (CLEP), and development for the purpose of residential flat buildings is permissible on the site. * The development application relies on the provisions of the SEPP ARH, and more than 20% of the proposed development will be dedicated as affordable housing (11 of 27 units). The State Environmental Planning Policy (Housing) 2021 (SEPP (Housing)) commenced on 26 November 2021. Schedule 7 includes a savings provision, the effect of which is that the provisions of the SEPP ARH continue to apply to the development application. * Clause 13(2) of the SEPP ARH provides that the maximum floor space ratio (FSR) for the development is the existing maximum FSR for any form of residential accommodation permitted on the land, plus additional FSR that is calculated based on the percentage of floor space to be dedicated as affordable housing. The proposal complies with this maximum FSR, with a FSR of 1.18:1. * Clause 16A of the SEPP ARH provides that a consent authority must not consent to development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. I am satisfied, as set out in the written request lodged under cl 4.6 of the CLEP, that the design of the proposed development is compatible with the character of the area. * The proposed development complies with each of the standards in cl 14 of the SEPP ARH. * I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 11.5m, pursuant to cl 4.3 of the CLEP. The proposed maximum height of 14m represents a contravention of 2.5m above the numerical standard. The contravention is confined to the central part of the building, and results from the pitched roof form. I am satisfied that the written request dated 15 February 2022, lodged pursuant to cl 4.6 of the CLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows the development to achieve a roof form that is compatible with the character of the local area. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. * The amended development application was accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation 2000. * Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for residential purposes, the parties agree, and I accept, that it is not likely to be contaminated. * The amended development application is accompanied by a statement of a qualified designer that verifies the design of the development, as required by cl 50(1A) and (1AB) of the EPA Regulation 2000. * As required by cl 30(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and based on the assessment attached to the amended development application, I am satisfied that adequate regard has been given to the design quality principles and to the objectives specified in the Apartment Design Guide for the relevant design criteria. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court Notes: 1. that Canterbury Bankstown Council as the relevant consent authority has agreed under clause 55 of the Environmental Planning and Assessment Regulations 2000 to the Applicant amending the Development Application DA/637/2020, the subject of these proceedings, in the following amended plans and detail: Plan Name Plan No. Date Rev. Prepared by Site/Roof Plan D5 16/02/2022 D Design Corp Basement Floor Plan D6 16/02/2022 D Design Corp Ground Floor Plan D7 16/02/2022 D Design Corp First Floor Plan D8 16/02/2022 D Design Corp Second Floor Plan D9 16/02/2022 D Design Corp Rooftop Plan D10 16/02/2022 D Design Corp Elevations 1 D11 16/02/2022 D Design Corp Elevations 2 D12 16/02/2022 D Design Corp Streetscape D13 16/02/2022 D Design Corp Fence Detail D14 16/02/2022 D Design Corp Sections A/B D15 16/02/2022 D Design Corp Section C D16 16/02/2022 D Design Corp Adaptable Units Details D17 16/02/2022 D Design Corp Materials & Finishes D26 16/02/2022 D Design Corp Landscaping Calcs D27 16/02/2022 D Design Corp Deep Soil Calcs D28 16/02/2022 D Design Corp GFA Plan D29 16/02/2022 D Design Corp BASIX Certificate No. Dated 1226152M_02 10 March 2022 1. The Applicant uploaded the application to the NSW Planning Portal on 21 March 2022; and 2. The Applicant filed the amended plans on 23 March 2022. 1. The Court orders that: 1. The applicant is to pay the respondent's costs thrown in the amount of $3,500 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of these orders 2. The written request pursuant to clause 4.6 of the Canterbury Local Environmental Plan 2012 to vary the development standard in clause 4.3, height of buildings, is upheld; 3. The appeal is upheld; 4. Development consent is granted for development application no. DA/698/2021, for the demolition of the existing dwellings; construction of a four (4) storey 27 unit 'residential flat building under the provisions of the Affordable Rental Housing SEPP including basement parking for 33 vehicles and ancillary structures at 13-15 Nicholas Avenue, Campsie, subject to the conditions contained at Annexure A. ……………………… J Gray Commissioner of the Court Annexure A (332609, 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: 08 April 2022