Pavlakos Capital Pty Limited v Canterbury Bankstown Council [2023] NSWLEC 1256

Land and Environment Court New South Wales

Medium Neutral Citation: Pavlakos Capital Pty Limited v Canterbury Bankstown Council [2023] NSWLEC 1256 Hearing dates: 14-16 March 2023 Date of orders: 31 May 2023 Decision date: 31 May 2023 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Subsequent to the grant of leave to the Applicant to amend their development application during the proceedings, the Applicant is to pay the Respondent's costs thrown away as a result of the amendments made to the proposal, as agreed or assessed, within 28 days pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (3) The Development Application, DA-440/2018, seeking consent for the demolition of existing structures and construction of a four-storey in-fill affordable housing development over a basement car park, utilising the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 at 71-83 Graham Road & 35-37 Karne Street, South Narwee (Lot 2, Lot 3, Lot 7 and Lot 8 in DP 23841 and Lots A and B in DP 387057), is determined by the grant of consent, subject to the conditions in Annexure A. (4) The exhibits are returned with the exception of Exhibits A, F, 1 and 3. Catchwords: DEVELOPMENT APPLICATION – consent sought for demolition and construction of a four storey in-fill affordable housing development – whether the development application was properly made – determination of applicable fee – requested variation to the floor space ratio and maximum building height – whether the written requests satisfy the requirements of cl 4.6 of Canterbury Local Environmental Plan 2012 – whether the development application satisfies the acoustic requirements of State Environmental Planning Policy (Infrastructure) 2007 – whether the development is compatible with the desirable elements of the character of the local area – whether the development has unacceptable impacts on adjoining properties - whether the development provides acceptable amenity. Legislation Cited: Architects Act 2003 Canterbury Local Environmental Plan 2012, cll 4.3, 4.6 Environmental Planning and Assessment Act 1979, ss, 4.15, 4.17, 4.64, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 3, 48, 49, 50, 246, 246A, 246B, 248, 252, 255, 256 Environmental Planning and Assessment Regulation 2021, Sch 6, s 3 Land and Environment Court Act 1979, s 39 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 4, 13, 14, 16, 16A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (2002 EPI 530), cll 4, 6A, 28, 30 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Cases Cited: Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 Big Property Group Pty Ltd v Randwick City Council [2021] NSWL LEC 1161 Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94 HP Subsidiary Pty Ltd v Parramatta City Council [2020] NSWLEC 135 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Parsonage v Ku-ring-gai (2004) 139 LGERA 354; [2004] NSWLEC 347 The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Texts Cited: Canterbury Development Control Plan 2012 NSW Department of Planning and Environment, Apartment Design Guide, 2015 Category: Principal judgment Parties: Pavlakos Capital Pty Limited (Applicant) Canterbury Bankstown Council (Respondent) Representation: Counsel: R O'Gorman Hughes (Applicant) M Bonnano (Solicitor) (Respondent)