Xu and Cui v The City of Canada Bay Council [2022] NSWLEC 1549

Land and Environment Court New South Wales

Medium Neutral Citation: Xu and Cui v The City of Canada Bay Council [2022] NSWLEC 1549 Hearing dates: Conciliation conference held 15 and 16 August 2022, final agreement filed on 7 October 2022. Date of orders: 07 October 2022 Decision date: 07 October 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA2021/0290 and rely on the amended plans and documents listed at Annexure A. (2) The Applicant's written request, pursuant to clause 4.6 of the Canada Bay Local Environmental Plan 2013 (CBLEP), seeking to vary the development standard for height of building as set out at clause 4.3 of the CBLEP, is upheld. (3) The Applicant's written request, pursuant to clause 4.6 of the CBLEP, seeking to vary the development standard for floor space ratio as set out at clause 4.4 of the CBLEP, is upheld. (4) The appeal is upheld. (5) Consent is granted to Development Application DA2021/0290 (as amended) for alterations and additions to the existing dwelling house, construction of a new garage and alterations to the existing boat port at the rear of the site at 25 Abbotsford Parade, Abbotsford NSW, subject to the conditions of consent contained at Annexure B. Catchwords: DEVELOPMENT APPLICATION – dwelling house – alterations and additions – cl 4.6 written request – height of building – floor space ratio – agreement between the parties – orders Legislation Cited: Canada Bay Local Environmental Plan 2013, cll 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.4 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 10, Pts 10.3, 10.6, Div 2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.12, 2.13, 4.6 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022) Parramatta River Estuary Coastal Zone Management Plan Category: Principal judgment Parties: Yunxia Xu (First Applicant) Jiaan Cui (Second Applicant) The City of Canada Bay Council (Respondent) Representation: Counsel: M Harker (Applicant) K Mortimer (Solicitor) (Respondent)