Land and Environment Court New South Wales Medium Neutral Citation: As Built Group Pty Ltd v Canterbury Bankstown Council [2023] NSWLEC 1302 Hearing dates: Conciliation conference on 22 March 2023 and 14 April 2023 Date of orders: 16 June 2023 Decision date: 16 June 2023 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court orders: (1) The Council agrees to the Applicant amending Development Application No. DA-483/2022, pursuant to section 37 of the Environmental Planning and Assessment Regulation 2021, in accordance with the amended plans and documents described in paragraph [12] of the judgment. (2) The Applicant is to pay the Council's costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $5,000.00 within 28 days from the date of the final orders. (3) The appeal is upheld. (4) Development consent is granted to Development Application No. DA-483/2022, as amended, for the demolition of existing structures, construction of two new dwellings including two pools, associated landscaping and boundary adjustments to existing subdivision on land legally described as Lot C in DP 177562 and Lot 1 in DP 301581, also known as 23 Macquarie Road, Earlwood, NSW, 2206, subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPEAL – new dwelling houses – overlooking - conciliation conference – agreement between the parties – orders Legislation Cited: Canterbury Local Environmental Plan 2012, cll 2.3, 2.6, 2.7, 4.1, 4.3, 4.4, 6.1 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Environmental Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: Canterbury Bankstown Council Community Participation Plan, October 2022 Category: Principal judgment Parties: As Built Group Pty Ltd (Applicant) Canterbury Bankstown Council (Respondent) Representation: Counsel: E Fleming (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Macpherson Kelley (Applicant) Canterbury Bankstown Council (Respondent) File Number(s): 2022/327885 Publication restriction: Nil Judgment 1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Canterbury Bankstown Council (the Council) of Development Application No. DA-483/2022 (the DA) for the demolition of the existing dwelling and construction of two new dwellings (one on each existing lot), including two pools, associated landscaping and boundary adjustments to existing battle-axe subdivision lot configuration, on land legally described as Lot 1 DP 301581 and Lot C DP 177562, 23 Macquarie Road, Earlwood (the Site). In exercising the functions of the consent authority on appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. On 7 July 2022, the DA was notified for a period of 14 days (until 21 July 2022) in accordance with Council's Community Participation Plan 2022. One submission by way of objection was received by the respondent during the exhibition process. The matters raised by way of objection included the visual privacy/overlooking impacts from the proposed windows and insufficient information regarding the boundary adjustment location. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 March 2023. I presided over the conciliation conference. 4. At the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application. 5. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted a further adjournment so that those amendments agreed to between the parties could be incorporated into agreed conditions of consent. 6. This agreement between the parties involves the Court upholding the appeal and granting development consent to the development application subject to those agreed conditions of consent. 7. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 13 April 2023. 8. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is one that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. From this I note the following: 1. Landowner's consent has been provided in the Class 1 Application. 2. The land is zoned R2 Low Density Residential under Canterbury Local Environmental Plan 2012 (CLEP) and dwelling houses are permitted with development consent in this zone. 3. Under Clause 2.3 of CLEP, the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The parties submit and I accept that the Amended DA is consistent with the objectives of the zone which are to provide for the housing needs of the community in a low density residential zone. 4. Under Clause 2.6 of CLEP, subdivision is permitted with development consent. The Amended DA seeks consent for the boundary adjustment between Lot 1 and Lot C of the existing subdivision. 5. Under Clause 2.7 the demolition of a building or work may be carried out only with development consent. The Amended DA seeks consent for the demolition of the existing dwelling and associated outbuildings on the Site. 6. Under Clause 4.1 of CLEP, the minimum subdivided lot size for the Site is 460m2. The parties submit that Lot 1 in DP 301581 will have a new lot size of approximately 464m2 and Lot C in DP 177562 will have a new lot size of approximately 543m2.I am therefore satisfied that the proposed boundary subdivision of Lot C and Lot 1 complies with the minimum lot size required by the Lot Size Map for the Site of 460m2. 7. Clause 4.3 of CLEP specifies a maximum permitted building height on the Site is 8.5 metres. I am satisfied from the evidence that the proposed dwellings comply with the building height control of 8.5m. 8. Under Clause 4.4 of CLEP, the maximum permitted floor space ratio for a dwelling house on each of the lots on the Site is 0.55:1. Lot 1 in DP 301581 and Lot C in DP 177562 both have a site area of at least 200m2 but less than 600m2. The proposed floor space ratio for the Lot 1 dwelling is 0.46:1. The proposed floor space ratio for the Lot C dwelling is 0.31:1. I am satisfied from the evidence that the proposed dwellings comply with the maximum FSR standard. 9. Clause 6.1 of CLEP states that development consent is required for the carrying out of works on land that is mapped as Class 5 Acid Sulfate Soils if 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 water table is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. The Site is mapped as "Class 5" Acid Sulfate Soils and the Site is within 500m of Class 3 and Class 1 land. However, I am satisfied from the evidence that the water table is not considered likely to be lowered below 1m AHD. 10. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. The Site currently contains a dwelling house and associated outbuildings. The proposal seeks to continue the existing residential use of the Site. There are no immediate site conditions which would require remediation of the Site. The parties submit and I accept that based on historical records and in the assessment of soil profiles for the region, there is no suggestion that the land would have been contaminated as there are no known industrial uses which may have contaminated the land. 11. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) and the Environmental Planning and Assessment Regulation 2021 (Regulation), the proposal is a BASIX affected development, containing a BASIX affected building. An updated BASIX certificate has been prepared for each dwelling reflecting the updated Architectural Plans (BASIX Certificate No. 1309115S, for the Lot 1 dwelling and BASIX Certificate No. 1309136S, for the Lot C dwelling) in compliance with the SEPP BASIX and Regulation. Conclusion 1. For these reasons I am satisfied that 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. The Court notes that: 1. The parties have reached an agreement in a conciliation conference conducted pursuant to s 34(3) of the Land and Environment Court Act, as to a decision that the Court could have made in the proper exercise of its functions. 2. The Respondent, as the relevant consent authority, has agreed to the Applicant amending Development Application No DA-483/2022 in accordance with the following amended plans and documents listed below: Drawing No and Revision Title Prepared by Date Architectural Plans 1 Drawing No. s.34 101 Revision D Ground Floor Plan Cracknell & Lonergan Architects Pty Ltd 29 March 2023 Drawing No. s.34 102 Revision D First Floor Plan Drawing No. s.34 103 Revision D Roof Plan Drawing No. s.34 201 Revision D Elevations Drawing No. s.34 202 Revision D Elevations Drawing No. s.34 301 Revision D Cross Sections Drawing No. s.34 401 Revision D Areas Schedule Drawing No. s.34 402 Revision D Proposed Subdivision Plan Drawing No. s.34 501 Revision D Materials & Finishes Drawing No. s.34 601 Revision D Demolition Plan Landscape Plans 2 Drawing No. 22096 DA 1-2 Revision B Landscape Concept Plan Vision Dynamics Pty Ltd 29 March 2023 Drawing No. 22096 DA 2-2 Revision B Landscape Concept Plan Engineering Plans 3 Drawing No H846M – S1/3 Revision C Stormwater Drainage & Sediment Control Details TAA Consulting Engineers 27 March 2023 Drawing No H846M – S2/3 Revision C Stormwater Drainage & Sediment Control Details Drawing No H846M – S3/3 Revision C Stormwater Drainage & Sediment Control Details 4 BASIX No. 1309115S_02 Building & Energy Consultants Australia 3 April 2023 NatHERS Certificate No: 0007756588-01 5 BASIX No. 1309136S_02 Building & Energy Consultants Australia 3 April 2023 NatHERS Certificate No: 0007756596-01 Orders 1. The Court orders: 1. The Council agrees to the Applicant amending Development Application No. DA-483/2022, pursuant to section 37 of the Environmental Planning and Assessment Regulation 2021, in accordance with the amended plans and documents described in paragraph [12] of the judgment. 2. The Applicant is to pay the Council's costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $5,000.00 within 28 days from the date of the final orders. 3. The appeal is upheld. 4. Development consent is granted to Development Application No. DA-483/2022, as amended, for the demolition of existing structures, construction of two new dwellings including two pools, associated landscaping and boundary adjustments to existing subdivision on land legally described as Lot C in DP 177562 and Lot 1 in DP 301581, also known as 23 Macquarie Road, Earlwood, NSW, 2206, subject to the conditions at Annexure A. L Sheridan Acting Commissioner of the Court Annexure A ********** 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: 16 June 2023