Land and Environment Court New South Wales Medium Neutral Citation: Hammoud v Canterbury Bankstown Council [2022] NSWLEC 1539 Hearing dates: Conciliation conference 14 September 2022 Date of orders: 04 October 2022 Decision date: 04 October 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Appeal is upheld (2) The Applicant is to pay the Respondent's costs thrown away by reason of the amendment of Development Application No. DA-968/2021, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $3,000 within 28 days of these orders. (3) Development consent is granted to Development Application No. DA-968/2021 for the demolition of the existing structures and construction of a six storey mixed use development with three levels of basement car parking, ground floor commercial tenancy, 28 residential apartments and associated landscaping and site works at 670-670A & 672-676 Canterbury Road, Belmore, subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – demolition of existing structures and construction of a new six storey mixed use development – amended plans – conciliation – agreement between the parties – orders made Category: Principal judgment Parties: Hussein Hammoud (First Applicant) Said Hammoud (Second Applicant) Canterbury Bankstown Council (Respondent) Representation: Counsel: S Patterson (Solicitor) (Applicants) M Bonnano (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicants) Canterbury Bankstown Council (Respondent) File Number(s): 2022/51907 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their development application (DA-968/2021) by the Canterbury Bankstown Council. The Applicant filed a Class 1 Application, appealing the refusal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). As amended the development application seeks consent for the demolition of the existing structures and construction of a six storey mixed use development with three levels of basement car parking, ground floor commercial tenancy, 28 residential apartments and associated landscaping and site works. The development is proposed at 670-670A & 672-676 Canterbury Road, Belmore (Lot 8 DP 8847, Lot 7 DP 8847, Lot 5 DP 8847, Lot 6 DP 8847, Lot 4 DP 8847). 2. The appeal was subject to conciliation on 14 September 2022 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). As a result of the discussions at the conciliation amended plans and documentation were prepared and agreement was reached between the parties. That agreed decision is that the appeal is upheld, the development application is approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act. 3. 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 below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 4. 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 development application was accompanied by owners consent of the owner of the subject land, as required by cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). 2. The development application was publicly notified in accordance with the mandatory community consultation requirements of s 2.22 and Sch 1 of the EPA Act. Seven submissions were received by the Respondent. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. 3. State Environmental Planning Policy Resilience and Hazards 2021 (SEPP RH) came into force on 1 March 2022 and transfers the provisions of State Environmental Planning Policy No 55 – Remediation of Land to the new instrument. Section 4.6 of SEPP RH nominates matters in relation to remediation of land that must be considered before the development application is determined. In determining the development, I have given consideration to whether the subject site is contaminated as required by s 4.6 of SEPP RH. The development application is accompanied by a Geotechnical Investigation Report of the Site which concludes that the site is suitable for the proposed development. By reference to this document, I have considered whether the land is contaminated in accordance with s 4.6 SEPP RH and I accept that the site will be suitable for the proposed development. 4. The development application is accompanied by a BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 5. Similarly State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) came into force on 1 March 2022, transferring the provisions of the former State Environmental Planning Policy (Infrastructure) 2007. The subject site has frontage to Canterbury Road, a classified road, as such s 2.119 of SEPP TI applies. It requires that a consent authority, prior to the grant of consent, be satisfied that: (a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of— (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. 1. In relation to (a) the vehicular access for the proposed development is provide from Joan Lane consistent with the requirements of the clause. Further, the development was referred to Transport for NSW who issued their concurrence subject to conditions. These conditions have been adopted into the draft conditions of approval. 2. The development application is accompanied by a Parking and Traffic Impact Assessment which assesses the potential impact of the proposed development on Canterbury Road and the road network. That report concludes that both Canterbury Road and the road network are capable of accommodating the limited traffic projected to be generated by the proposed development and that no adverse impacts of the type listed at (b) arise. 3. In relation to (c), and the requirements of s 2.120 of SEPP TI, the development application is accompanied by an acoustic report which confirms that appropriate measures will be taken to ensure that the stated LAeq levels are not exceeded in the final development. Appropriate conditions have been adopted into the draft conditions of approval to ensure compliance. 4. On the preceding basis I am satisfied that vehicular access to the land is provided by a road other than the classified road and the requirements of s 2.119 of SEPP TI are satisfied. Further, I find that the requirements of 2.120(3) in relation to achievement of appropriate sound levels are satisfied. 5. Canterbury Local Environmental Plan 2012 (LEP 2012) applies to the site. Pursuant to LEP 2012 the site is zoned B5 Business Development. Development for the purposes of demolition and business premises are permitted with consent in the zone. Residential accommodation, as part of a mixed-use development, is permitted pursuant to Sch 1 of LEP 2012 as the site is within Area A of the Key Sites Map. In determining the development application, I have given consideration to the zone objectives. 6. The site is subject to a maximum height limit of 18m: cl 4.3 of LEP 2012. The proposed development has a maximum height of 19.86m and relies on the provisions of cl 4.6 of LEP 2012. The Applicant has prepared a written request seeking to vary the maximum height development standard. I have read the written request prepared by GAT & Associates dated 14 September 2022 and in accordance with cl 4.6 of LEP 2012, I am satisfied that: 1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the height control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2012): Wehbe v Pittwater Council (2007) 156 LGERA 446; NSWLEC 827. I am satisfied that the development is consistent with the achievement of the objectives of the height standard for the reasons detailed in the written request. 2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2012). In particular, I am satisfied that the first breaching element (the lift overrun) provides a benefit to the development of accessible access to the communal open space. Further, I accept that the second breaching element (part of the building fronting Canterbury Road) provides a benefit of contextual fit with existing and approved developments in this precinct of Canterbury Road as demonstrated in the written request. 3. For the reasons outlined in the written request, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of cl 4.3 of LEP 2012 and the objectives of the B5 Business Development zone. 4. Pursuant to cl 4.6(5) of LEP 2012, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 5. I find that the states of satisfaction required by cl 4.6 of LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the height control. 1. As required by cl 6.2: Earthworks of LEP 2012 in determining the development application I have given consideration to the matters listed at subcl (3). In giving consideration to these matters I have been informed by the Detailed Site Investigation report submitted in support of the development application, prepared by Geo-Environmental Engineering titled dated 11 November 2021. On this basis I am satisfied that none of the factors listed at subcl (3) warrant the refusal of the application. 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 of the issues that were originally in dispute between the parties. 3. In making the orders, the Court also notes that: 1. The Applicant has amended Development Application No. DA-968/2021 with the agreement of the Respondent, Canterbury Bankstown Council as the relevant consent authority pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000 to rely on the following amended plans and documents: 1. Architectural Plans as prepared by Benson McCormack Architecture. Sheet Number Sheet Name Current Revision Current Revision Date A-0001 Site Information Location Plans 02 29/08/2022 A-0002 Site Information Site Context 02 29/08/2022 A-0003 Site Information Site Photographs 02 29/08/2022 A-0004 Site Information Site Survey 1/2 02 29/08/2022 A-0005 Site Information Site Survey 2/2 02 29/08/2022 A-0006 Site Information Site Analysis – Constraints 02 29/08/2022 A-0007 Site Information Site Analysis – Opportunities 02 29/08/2022 A-0008 Site Information Site Plan 02 29/08/2022 A-0009 Site Information Demolition Plan 02 29/08/2022 A-0010 Site Information Project Summary 1/2 03 29/08/2022 A-0011 Site Information Project Summary 2/2 03 29/08/2022 A-0101 Plans – General Arrangement Basement 03 Floor Plan 03 29/08/2022 A-0102 Plans – General Arrangement Basement 02 Floor Plan 02 29/08/2022 A-0103 Plans – General Arrangement Basement 01 Floor Plan 04 06/09/2022 A-0104 Plans – General Arrangement Ground Floor Plan 04 06/09/2022 A-0105 Plans – General Arrangement Level 01 Floor Plan 03 29/08/2022 A-0106 Plans – General Arrangement Level 02 Floor Plan 03 29/08/2022 A-0107 Plans – General Arrangement Level 03 Floor Plan 03 29/08/2022 A-0108 Plans – General Arrangement Level 04 Floor Plan 03 29/08/2022 A-0109 Plans – General Arrangement Level 05 Floor Plan 03 29/08/2022 A-0110 Plans – General Arrangement Level Roof Plan 02 29/08/2022 A-0201 Elevations – West Elevation 02 29/08/2022 A-0202 Elevations – North Elevation 02 29/08/2022 A-0203 Elevations – East Elevation 02 29/08/2022 A-0204 Elevations – South Elevation 02 29/08/2022 A-0251 Sections – Section AA 02 29/08/2022 A-0252 Sections – Section BB 04 06/09/2022 A-0253 Sections – Section CC 03 29/08/2022 A-0254 Sections – Section DD 03 29/08/2022 A-0255 Sections – Section Access Ramp 03 06/09/2022 A-1001 Schedule – Door Window – Window – Door Schedule 02 29/08/2022 A-1301 Misc. DA Details Shadow Analysis 03 29/08/2022 A-1302 Misc. DA Details Solar Access – 21 June 02 29/08/2022 A-1303 Misc. DA Details Solar Access Diagrams 02 29/08/2022 A-1304 Misc. DA Details Cross Ventilation Diagrams 02 29/08/2022 A-1305 Misc. DA Height Plans 02 29/08/2022 A-1306 Misc. DA Details GFA Calculation 03 29/08/2022 A-1307 Misc. DA Details COS Calculation 02 29/08/2022 A-1308 Misc. DA Details Deep Soil Calculation 02 29/08/2022 A-1309 Misc. DA Details Storage Calculation 1/2 03 29/08/2022 A-1310 Misc. DA Details Storage Calculation 2/2 03 29/08/2022 A-1311 Misc. DA Details Finishes Schedule 02 29/08/2022 A-1312 Misc. DA Details Massing Study 1/2 02 29/08/2022 A-1313 Misc. DA Details Massing Study 2/2 02 29/08/2022 A-1314 Misc. DA Details Substation Chamber 02 29/08/2022 A-1315 Misc. DA Details Perspective 02 29/08/2022 A-1316 Misc. DA Details Future Urban Context Along Canterbury Road 02 29/08/2022 A-1317 Misc. DA Details Waste Rooms Layout 02 29/08/2022 1. Swept Path Assessment prepared by Stanbury Traffic Planning (Sheets 01/04) dated 6 September 2022. 2. BASIX Certificate No. 1258787M_03 prepared by GAT and Associates dated 14 September 2022. 3. NatHERS Certificate No. 0006796450 dated 14 September 2022. 4. NatHERS Certificates No. 0006796106-02, No. 0006796114-02, No. 0006796122-02, No. 0006796130-02, No. 0006796148-02, No. 0006796155-02, No. 0006796163-02, No. 0006796189-02, No. 0006796197-02, No. 0006796205-02, No. 0006796213-02, No. 0006796221-02, No. 0006796239-02, No. 0006796247-02, No. 0006796254-02, No. 0006796262-02, No. 0006796304-02, No. 0006796312-02, No. 0006796346-02, No. 0006796353-02, No. 0006796379-02, No. 0006796387-02, No. 0006796395-02, No. 0006796403-02, No. 0006796411-02, No. 0006796429-02, No. 0006796072-02, No. 0006796098-02, dated 14 September 2022. 5. Updated cl.4.6 variation request prepared by GAT & Associates dated 14 September 2022. (collectively, the "Amended Development Application"). 1. The Amended Development Application was lodged on the NSW planning portal on 12 September 2022 and 14 September 2022. 2. The Applicant has subsequently filed the Amended Development Application with the Court on 13 September 2022 and supplemented the Amended Development Application on 15 September 2022. 1. The Court orders that: 1. The Appeal is upheld 2. The Applicant is to pay the Respondent's costs thrown away by reason of the amendment of Development Application No. DA-968/2021, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $3,000 within 28 days of these orders. 3. Development consent is granted to Development Application No. DA-968/2021 for the demolition of the existing structures and construction of a six storey mixed use development with three levels of basement car parking, ground floor commercial tenancy, 28 residential apartments and associated landscaping and site works at 670-670A & 672-676 Canterbury Road, Belmore, subject to the conditions in Annexure A. .………………………… D M Dickson Commissioner of the Court Annexure A (294647, 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: 04 October 2022