Land and Environment Court New South Wales Medium Neutral Citation: Kadi v Canterbury-Bankstown Council [2022] NSWLEC 1218 Hearing dates: Conciliation conference on 21 April 2022 Date of orders: 03 May 2022 Decision date: 03 May 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld; (2) The Applicant is to pay the Respondent's costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed of amount $5,500 within 28 days of the making of these orders; (3) Amended Development Application DA216/2021 seeking demolition of existing structures and construction of a residential flat building comprising two three storey buildings with combined carparking and communal open space areas at Lot E DP 7497, known as 82 Riverview Road, Earlwood is granted consent subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential apartment development in R4 High Density Residential zone – conciliation conference – agreement between parties – orders Legislation Cited: Architects Act 2003 Canterbury Local Environmental Plan 2012, cll 4.3, 4.4, 6.1, 6.2, Environmental Planning and Assessment Act 1979, ss 8.15, 8.7 Environmental Planning and Assessment Regulation 2000, cll 3, 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, cll 28, 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: Jack Kadi (Applicant) Canterbury Bankstown Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Canterbury Bankstown Council (Respondent) File Number(s): 2021/250764 Publication restriction: No Judgment 1. COMMISSIONER: This class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Canterbury Bankstown Council of Development Application DA216/2021 seeking consent for the demolition of all existing structures, removal of vegetation, and the construction of a three-storey residential flat building at 82 Riverview Road, Earlwood (the site). 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 21 April 2022. I presided over the conciliation conference. 3. Prior to the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 28 April 2022. 5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 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. 7. There are jurisdictional prerequisites contained in the provisions of the following: 1. Canterbury Local Environmental Plan 2012 (CLEP). 2. State Environmental Planning Policy (Resilience and Hazards) 2021. 3. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65). 4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). 1. The parties explained to me during the conference how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [23]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the reasons set out in my judgment below. Canterbury Local Environmental Plan 2012 1. The site is within the R4 High Density Residential zone pursuant to the CLEP in which residential flat building development is permitted with consent, where consistent with the following objectives for development in the R4 zone: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The proposed development complies with the development standard in respect of height of buildings at cl 4.3 of the CLEP, and in respect of the allowable floor space ratio at cl 4.4 of the CLEP. 2. The site is identified in the Acid Sulfate Soils Map at cl 6.1(2) of the CLEP as being class 5, and to be within 500m of class 2 soils. On the basis of the Acid Sulfate Soils Assessment, prepared by EI Australia dated 21 January 2022, citing the surveyed elevation and geomorphic features of the site to be indicative of a low likelihood of acid sulfate soils, I am satisfied that cl 6.1 of the CLEP is satisfactorily addressed. 3. I am also satisfied that the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, pursuant to cl 6.2 of the CLEP. In arriving at this state of satisfaction, I note the Applicant has provided a basement shoring plan, and certification in respect of the basement shoring walls from ABVD Design, Consulting Structural and Civil Engineers dated 15 March 2022, and Stormwater Plans prepared by Alpha Engineering and Development dated 14 January 2022, which address those relevant matters at cl 6.2(3) of the CLEP. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 1. As the proposal is for a residential flat building, the provisions of SEPP 65 apply. 2. Clause 28(2) of SEPP 65 requires a consent authority to take into consideration, in addition to any other matters that are required to be, or may be, taken into consideration, the following: (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide. 1. Relatedly, where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires a development application to be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003. 2. The statement must conform to the provisions of cl 50(1AB) of the EPA Regulation, which include attestations in relation to those matters for consideration at cl 28(2)(b) and (c) of SEPP 65. I am satisfied that the statement signed by Mr Nicholas Lycenko (Reg No.3010), dated 21 April 2022, is in a complying form and adequately demonstrates that the development is consistent with the design quality principles, objectives and design criteria of the Apartment Design Guide. 3. On the basis of the design statement prepared by Mr Lycenko, I am also of the opinion that the proposal is consistent with those standards at cl 30 that cannot be used as grounds to refuse development consent, and I consider that adequate regard has been had to the design quality principles and to the objectives specified in the Apartment Design Guide, in accordance with cl 30(2) of SEPP 65. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) 1. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1145887M_03), prepared by ECO Certificates Pty Ltd dated 16 March 2022 in accordance with SEPP BASIX and the EPA Regulation. State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) 1. I accept the agreed position of the parties that the site has historically been used for residential purposes and that the Respondent's records indicate that the site is not contaminated and does not adjoin any land known to be contaminated. On this basis, I am satisfied that the site is not contaminated, pursuant to cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Conclusion 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment, whatsoever, of the issues that were originally in dispute between the parties. Orders 1. The Court notes that: 1. The respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending DA216/2021. 2. The Applicant has lodged the amended plans and material on the NSW Planning Portal on 8 April 2022. 3. The Applicant has filed the amended plans with the court on 11 April 2022. 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed of amount $5,500 within 28 days of the making of these orders; 2. The appeal is upheld; 3. Amended Development Application DA216/2021 seeking demolition of existing structures and construction of a residential flat building comprising two three storey buildings with combined carparking and communal open space areas at Lot E DP 7497, known as 82 Riverview Road, Earlwood is granted consent subject to the conditions in Annexure A. …………………… T Horton Commissioner of the Court Annexure A.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: 03 May 2022