Land and Environment Court New South Wales Medium Neutral Citation: Maxcel Pty Ltd ATF Maxcel Trust v Canterbury Bankstown Council [2022] NSWLEC 1410 Hearing dates: Conciliation conference held on 4 July 2022 Date of orders: 2 August 2022 Decision date: 02 August 2022 Jurisdiction: Class 1 Before: Morris AC Decision: The Orders of the Court are: (1) The applicant is granted leave to amend Development Application No. DA-709/2021 and rely upon the amended plans referred to at Condition 1 to Annexure "A", as well as the updated clause 4.6 variation. (2) The applicant is to pay the respondent's section 8.15(3) costs in the agreed amount of $3,000. (3) The appeal is upheld. (4) Consent is granted to Development Application DA-709/2021 for the demolition of existing structures and the construction of a two-storey attached dual occupancy with Torrens Title subdivision, at premises known as 32 Seidel Avenue, Picnic Point ("Site"), is approved subject to conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – dual occupancy – subdivision – conciliation conference – agreement between the parties Legislation Cited: Bankstown Local Environmental Plan 2015, cll 4.1A, 4.3, 4.4, 4.6, 6.1, 6.2 Environmental Planning and Assessment Act 1979,ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 50 Land and Environment Court Act 1979, s 34 Texts Cited: Bankstown Development Control Plan 2015, cl 4.8 Category: Principal judgment Parties: Maxcel Pty Ltd ATF Maxcel Trust (Applicant) Canterbury Bankstown Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) M Bonano (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Canterbury Bankstown Council (Respondent) File Number(s): 2022/66950 Publication restriction: No Judgment 1. COMMISSIONER: Development Application DA-709/2021 was lodged with Canterbury Bankstown Council on 31 August 2021 seeking consent for demolition of existing structures, construction of a two-storey attached dual occupancy with Torrens Title subdivision. 2. The Council had not determined the application within the prescribed period, and the applicant is appealing its deemed refusal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The proposal 1. The applicant has amended the proposal from the plans originally submitted with the application to address the Council's contentions in the case, however the description of the proposal is unchanged. The primary changes made, alter the building line of the building, reduce the size of the buildings, and increase the area available for landscaping. Other changes reduce the height of the building wall height and improve solar access to adjoining properties. 2. The proposal now before the Court is for the construction of a two storey dual occupancy building. The building would be constructed on a varied building alignment from around 6 to 8.674m due to the curved nature of the site frontage. Setbacks from the northern boundary are 910mm and vary from the southern boundary from a minimum of 930mm to 2.908m and in excess of 5.0m at the rear. 3. The proposed northern dwelling would comprise a single garage, fourth bedroom, storeroom, laundry, bathroom, and open plan living/dining/kitchen area with an alfresco of that living space. Three additional bedrooms, an ensuite and bathroom would be located on the first floor towards the front of the building. The larger, southern dwelling would contain similar facilities at ground level with an additional living area, study, and the same facilities on the first floor. Parking for an additional vehicle would be located in front of the garage area. 4. The application includes subdivision of the land into two allotments. Proposed Lot 1 is the southern lot and would contain the larger dwelling house and have an area of 437.85m2 and an irregular shape. Proposed Lot 2 is generally rectangular in shape with the common wall of the building running parallel to the site's north-eastern boundary. It has an area of 333.53m2. The site and locality 1. The site is located at the north-western end of Seidel Avenue, Picnic Point, a cul-de-sac roadway. Frontage to the site is curved to follow the bulb of the roadway and measures along the arc as 11.58m. 2. A single storey brick dwelling house, detached garage, awning and associated landscaping stands on the site. 3. Development in vicinity of the site is characterised by low density housing, street trees and associated landscaping. There are newer developments in the form of attached two storey dual occupancies in Seidel Avenue. Planning controls 1. The site is zoned R2 – Low Density Residential pursuant to the provisions of Bankstown Local Environmental Plan 2015 (LEP). Dual occupancy development is permissible with consent in that zone. 2. Clause 4.1A of the LEP is particularly relevant and is in the following form: 4.1A Minimum lot sizes and special provisions for dual occupancies (1) The objectives of this clause are as follows— (a) to ensure that lot sizes are sufficient to accommodate development that is consistent with the objectives and planning provisions for dual occupancies, (b) to minimise any likely adverse impact of development on the amenity of the area. (2) Development consent must not be granted to development for the following purposes— (a) a dual occupancy (attached) on a lot in Zone R2 Low Density Residential unless the lot has an area of at least 500 square metres and is at least 15 metres wide at the front building line, (b) a dual occupancy (detached) on a lot in Zone R2 Low Density Residential unless the lot has an area of at least 700 square metres and is at least 20 metres wide at the front building line, (c) a dual occupancy on a lot being land identified as "Area 2" on the Special Provisions Map. (3) Despite subclause (2), development consent must not be granted to development for the purpose of a dual occupancy unless the consent authority is satisfied that each dwelling will have a frontage to a road. (4) The consent authority may grant development consent for the subdivision of— (a) a dual occupancy (attached), if the size of each lot to be created will be at least 250 square metres, or (b) a dual occupancy (detached), if the size of each lot to be created will be at least 350 square metres. 1. The Council has exhibited a Planning Proposal that would increase the minimum lot size for attached dual occupancy developments to 600 square metres. As the site area exceeds both development standards, the area is not an issue in the case. There is however a contention in relation to whether the site is at least 15 metres wide at the front building line. 2. In this regard, the Dictionary to the LEP provides the following definitions: building line or setback means the horizontal distance between the property boundary or other stated boundary (measured at 90 degrees from the boundary) and— (a) a building wall, or (b) the outside face of any balcony, deck or the like, or (c) the supporting posts of a carport or verandah roof, whichever distance is the shortest. front building line means— (a) for a lot that has only one road frontage—the line the consent authority is satisfied is the minimum setback a building should be from the road alignment, or (b) for a lot that has more than one road frontage—the shortest of the lines (excluding an access handle or right of way for access) that can be calculated under paragraph (a). 1. The Council contends that the front building line is determined from the provisions contained in the Bankstown Development Control Plan 2015 (DCP). Clause 4.8 of the DCP states that the minimum setback for a building wall to the primary road frontage is 5.5m for the first storey, and 6.5m for the second storey. For that reason, the Council says the front building line for the site is at 5.5m and the width at that point is 14.3m. 2. The applicant relies on a written request made pursuant to the provisions of cl 4.6 of the LEP. That matter is discussed later in this Judgment. 3. Both lots satisfy the development standard for minimum lot size for subdivision set out in cl 4.1A(4)(a) of the LEP. 4. Clause 4.3 of the LEP establishes a maximum height of buildings. The maximum permitted for the site is 9m. The original proposal exceeded this height, however the plans now before the Court provide for compliance with that development standard. 5. Clause 4.4 of the LEP establishes a maximum floor space ratio for the site of 0.5:1. The size of the buildings has been reduced to comply with this development standard. 6. The soil type of the site is classified as Class 5 acid sulphate soils however, pursuant to the provisions of cl 6.1 of the LEP, no additional considerations to this issue are required as the application does not involve works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. 7. LEP cl 6.2 Earthworks requires consideration of certain matters. As the design of the proposal does not involve any cut due to stepped ground floor slab to conform to existing sloping topography of the site and minimal fill will be utilised, the parties agree that there will be no adverse effect on existing drainage patterns or any adverse effect on adjoining properties. I accept that submission. The contentions 1. The contentions in the case are detailed in the Council's Statement of Facts and Contentions filed on 4 April 2022. All the contentions have been addressed with the exception of the front building line however, the Council, in the circumstances considers it appropriate to allow variation to the development standard. I address this below. Conclusion and findings 1. An agreement under s 34(3) of the Land and Environment Court Act 1979 (LEC Act) has been reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EP&A Act. 2. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons: 1. The proposed use is permissible with consent pursuant to the provisions of the LEP. 2. The amended application addresses the relevant provisions of the LEP and the Council's Development Control Plan. 1. As the front building line issue remains, consideration of the written request and the terms of cl 4.6 of the LEP is required. 2. I have reviewed the request and in accordance with cl 4.6 of the LEP, I am satisfied that: 1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis of the specific circumstances of the development (cl 4.6(3)(a) of the LEP). 2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of the LEP). In particular, the Court notes the minimum site width is achieved at the front façade of the building due to the fan shape of the allotment which widens from the site frontage to the rear. The existing building line at the bulb section of Seidel Avenue is much greater than the 5.5m required under the DCP and this setback is in fact a minimum. Having regard to the streetscape, I would consider it appropriate that any redevelopment of the site take place on a setback greater than 5.5m. Accordingly, I consider, having regard to the terms of the definition and the DCP provisions that it is appropriate for a greater front building line to be established in the circumstances of this case, noting that in this case the setback will exceed the minimum determined by the Council. To do so would still achieve the objectives of the standard and those contained within the DCP. 1. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of the LEP are met. 2. For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and will also ensure the proposed lots are of sufficient size to accommodate certain development that is consistent with relevant planning provisions without adversely impacting on residential amenity, thereby achieving the objectives of those controls. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of the LEP are met. 3. Pursuant to cl 4.6(5) of the LEP, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 4. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the control. 5. The terms of cl 6.2 Earthworks of the LEP have been considered and addressed in the amended application and through appropriate consent conditions. 6. A BASIX Certificate has been prepared to reflect the amended plans in accordance with the provisions of cl 50 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). 7. There are not any other matters contained in the EPA Reg that prevent grant of consent. 8. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable, and that the site is suitable for the development as proposed. 9. Matters raised by persons who made submissions to the Council concern traffic, parking, privacy, landscaping, solar access and setbacks. I have considered these issues, the positive amendments made to the plans and the advice of the Council's experts and, on the basis of that evidence and the agreed conditions of consent, am satisfied that the proposal is satisfactory and that the impacts can be appropriately managed. In particular, having regard to the solar diagrams prepared, it would be possible for the neighbour to proceed with installation of solar panels and a condition of consent has been imposed that prevents the erection of any fencing forward of the front building line of the building (condition 1.1a) 10. 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. 11. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the application. Orders: 1. The Orders of the Court are: 1. The applicant is granted leave to amend Development Application No. DA-709/2021 and rely upon the amended plans referred to at Condition 1 to Annexure "A", as well as the updated clause 4.6 variation. 2. the applicant is to pay the respondent's section 8.15(3) costs in the agreed amount of $3,000. 3. The appeal is upheld. 4. Consent is granted to Development Application DA-709/2021 for the demolition of existing structures and the construction of a two-storey attached dual occupancy with Torrens Title subdivision, at premises known as 32 Seidel Avenue, Picnic Point ("Site"), is approved subject to conditions in Annexure A. ………………………. S Morris Acting Commissioner of the Court Annexure A (280458, 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: 02 August 2022