Olter Investments Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1620

Land and Environment Court New South Wales

Medium Neutral Citation: Olter Investments Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1620 Hearing dates: Conciliation conference held 8 August, 2 and 27 September, and 7 October 2022, final agreement filed 10 October 2022 Date of orders: 10 November 2022 Decision date: 10 November 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA2021/0082 and rely upon the amended plans and documents referred to at Annexure B. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application as agreed or assessed. (3) The Applicant's written request, pursuant to cl 4.6 of the Canada Bay Local Environmental Plan 2013 (CBLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the CBLEP, is upheld. (4) The appeal is upheld. (5) Consent is granted to Development Application DA2021/0082 (as amended) for the demolition of existing structures, site consolidation and construction of a new mixed use development, comprising basement car parking, two retail tenancies and thirty-one residential apartments, the removal of three existing driveways and construction of a new driveway at 71-75 Victoria Road, Drummoyne, subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential flat building – shop top housing – cl 4.6 written request – height of buildings – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 50, 55 Land and Environment Court Act 1979, s 34 Canada Bay Local Environmental Plan 2013, cll 4.3, 4.6, 5.21, 6.1, 6.2, 6.5, 6.10, 6.11 6.13 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.119, 2.120 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022) NSW Department of Planning, Apartment Design Guide (2015) Category: Principal judgment Parties: Olter Investments Pty Ltd (Applicant) City of Canada Bay Council (Respondent) Representation: Counsel: A Adams (Solicitor) (Applicant) T Ward (Solicitor) (Respondent)