Land and Environment Court New South Wales Medium Neutral Citation: Butterworth v Canterbury-Bankstown Council [2023] NSWLEC 1453 Hearing dates: Conciliation Conference 21 and 22 June 2023 Date of orders: 16 August 2023 Decision date: 16 August 2023 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders that: (1) Appeal is allowed. (2) Development application No DA-112/2022 for the demolition of existing structures and the construction of a new dwelling house with a basement level and swimming pool at 4 Faye Avenue, Earlwood NSW 2206, known as Lot 1 DP 232761, is approved, subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – demolition of existing structures - construction new dwelling and in-ground swimming pool - conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, ss 34, 34AA Canterbury Local Environmental Plan 2012, cll 4.3, 4.4, 6.2 Environmental Planning and Assessment Regulation 2021, s 37 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Bankstown Local Environmental Plan 2015 Category: Principal judgment Parties: Emma Butterworth (Applicant) Canterbury Bankstown Council (Respondent) Representation: Counsel: Mr R Coffey (Applicant) Mr A Jucha (Respondent) Solicitors: Addisons (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2023/35655 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal 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-112/2022 (the Development Application) for the demolition of existing structures and the construction of a new two storey dwelling house with basement level and in-ground swimming pool at 4 Faye Avenue, Earlwood NSW 2206, known as Lot 1 DP 232761 (the Site). 2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on-site and at Court on 21 and 22 June 2023. I presided over the conciliation conference. Two neighbouring residents made oral submissions from their dwellings adjoining the Site. One resident engaged a town planner who spoke on site to a written submission that had been submitted to Council. The issues raised by the resident objectors were view loss and privacy. 3. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council's contentions and the objectors submissions. Accordingly, Council approved an application to amend the Applicant's plans pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the amended Development Application with conditions. 4. Section 34(3) of the LEC Act requires me to dispose of the Class 1 proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 5. The parties' decision involves the Court exercising the function under s 4.16(1)(a) of the EPA Act to grant development consent to the development application. 6. There are jurisdictional pre-requisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Statement filed on 22 June 2023. The statutory planning controls relevant to the site and the proposed development are listed in the Council's Statement of Facts and Contentions. 7. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the matters listed below. 8. Under the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), which applies to all land in NSW, the contamination status of the site must be considered prior to grant of consent. Based on the historic unchanged residential use and a supporting Report titled 'Geotechnical Investigation & Acid Sulfate Soils Assessment' prepared by STS Geotechnics and lodged with the Development Application, the Applicant has provided sufficient evidence which has been accepted by Council that the relevant requirements of s 4.6 of the Resilience SEPP are satisfied. 9. The Council has approved clearing of vegetation as part of the development consent, as shown on the architectural plans approved in the agreed Conditions of Consent and the development complies with the provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021. 10. Given the plans were amended a new BASIX certificate was provided (1276690S_02) in accordance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and s 37(5) of the Environmental Planning and Assessment Regulation 2021. 11. The Site is zoned R2 Low Density Residential under the Canterbury Local Environmental Plan 2012 (CLEP). Land use for a 'dwelling house' is permitted under the CLEP Land Use Table. The amended plans the subject of the s 34 agreement comply with the development standards of Height of Buildings (cl 4.3) and FSR (cl 4.4) in the R2 zone, CLEP. It is noted that following the amalgamation of the former Canterbury and Bankstown Councils, draft Canterbury-Bankstown Local Environmental Plan 2020 has been proposed to consolidate Canterbury Local Environmental Plan 2012 and Bankstown Local Environmental Plan 2015. While the draft instrument is not yet in force, it carries forward all existing controls applicable to the site. 12. The updated stormwater plans and the Geotechnical reports relied on for the s 34 conference meet the requirements of cl 6.2 Earthworks, CLEP. These reports also make recommendations, to avoid, minimise or mitigate the impacts of the development. These recommendations have been incorporated into the conditions of consent and address the requirements under cl 6.2 of CLEP. 13. Conclusion 14. For these reasons and based on the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one 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. 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. Notations: 1. The Court notes: 1. Canterbury Bankstown Council as the relevant consent authority has, pursuant to Section 37 of the Environmental Planning and Assessment Regulation 2021, consented to the following amendments to development application No DA-112/2022: Architectural Plans prepared by Those Architects Drawing Rev. Date Description DA.01 I 21.06.2023 Cover Sheet DA.02 I 21.06.2023 Montage DA.03 I 21.06.2023 Site Analysis DA.04 I 21.06.2023 Demolition Plan DA.05 I 21.06.2023 Site Plan DA.06 I 21.06.2023 Basement Floor Plan DA.07 I 21.06.2023 Ground Floor Plan DA.08 I 21.06.2023 First Floor Plan DA.09 I 21.06.2023 Roof Plan DA.10 I 21.06.2023 Sections A & B DA.11 I 21.06.2023 Section C DA.12 I 21.06.2023 South Elevations DA.13 I 21.06.2023 North Elevations DA.14 I 21.06.2023 East Elevations DA.15 I 21.06.2023 West Elevations DA.16 I 21.06.2023 Area Plans DA.16 I 21.06.2023 Waste Management Plan DA.17 I 21.06.2023 Rear 3D DA.18 I 21.06.2023 21 June 8am Sun Shadows Existing DA.19 I 21.06.2023 21 June 8am Sun Shadows Proposed DA.20 I 21.06.2023 21 June 9am Sun Shadows Existing DA.21 I 21.06.2023 21 June 9am Sun Shadows Proposed DA.22 I 21.06.2023 21 June 12pm Sun Shadows Existing DA.23 I 21.06.2023 21 June 12pm Sun Shadows Proposed DA.24 I 21.06.2023 21 June 3pm Sun Shadows Existing DA.25 I 21.06.2023 21 June 3pm Sun Shadows Proposed DA.26 I 21.06.2023 21 June 4pm Sun Shadows Existing DA.27 I 21.06.2023 21 June 4pm Sun Shadows Proposed DA.28 I 21.06.2023 21 June 8am, 9am, 10am Sun Elevation Shadows DA.29 I 21.06.2023 21 June 11am, 12pm, 1pm Sun Elevation Shadows DA.30 I 21.06.2023 21 June 2pm, 3pm, 4pm Sun Elevation Shadows DA.31a I 21.06.2023 21 June 8am, 9am, 10am Sun Elevation Shadows DA.31b I 21.06.2023 21 June 11am, 12pm, 1pm Sun Elevation Shadows DA.31c I 21.06.2023 21 June 2pm, 3pm, 4pm Sun Elevation Shadows LP.01 I 21.06.2023 Landscape Plan – Ground Floor LP.02 I 21.06.2023 Landscape Plan – First Floor LP.03 I 21.06.2023 Landscape Specifications 1. The Court orders: 1. The appeal is upheld. 1. (2) Development application No DA-112/2022 for the demolition of existing structures and the construction of a new dwelling house with a basement level and swimming pool at 4 Faye Avenue, Earlwood NSW 2206 legally known as Lot 1 DP 232761, is approved, subject to the conditions set out in Annexure A. L Byrne 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 August 2023