Land and Environment Court New South Wales Medium Neutral Citation: Darwich v Canterbury-Bankstown Council [2024] NSWLEC 1053 Hearing dates: Conciliation Conference 30 and 31 January 2023 Date of orders: 20 February 2024 Decision date: 20 February 2024 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The Appeal is upheld. (2) Development Application DA-480/2023 (as amended) for the demolition of existing structures and construction of a detached dual occupancy development with Torrens Title subdivision at 4 McCrossin Avenue, Birrong is approved subject to the conditions set out in Annexure "A" to this agreement. Catchwords: DEVELOPMENT APPEAL – demolition – construction of detached dual occupancy – Torrens title subdivision - conciliation conference – agreement between the parties - orders Legislation Cited: Biodiversity Conservation Act 2016, s 7.2 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, s 34 Bankstown Local Environmental Plan 2015, cll 2.3, 2.7, 4.3, 4.4, 6.1, 6.4 Canterbury-Bankstown Local Environmental Plan 2023, cll 1.8A Environmental Planning and Assessment Regulation 2000, cll 37, 49 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.6 Category: Principal judgment Parties: Sam Darwich (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: C Gough (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Storey & Gough Lawyers (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2023/229343 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No DA-480/2023 for demolition of existing structures on site and construction of a detached two (2) storey dual occupancy development with swimming pools and Torrens title subdivision (the Proposed Development) at 4 McCrossin Avenue, Birrong, NSW 2143 legally described as Lot 33 in DP26982 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 30 January 2024. I have presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties in response to the Statement of Facts and Contentions (SOFAC) filed 10 August 2023. This decision involved the Court upholding the appeal and granting development consent to the Development Application subject to conditions. 4. As a result of the SOFAC, the Applicant has provided to the Respondent amended plans and material. The Respondent has completed its assessment of the amended plans and documents and has formed the view that all contentions raised in its SOFAC have been satisfactorily addressed. The Respondent is satisfied that the amended plans and documents address the concerns raised by objectors. 5. 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 a decision that the Court could have made in the proper exercise of its functions. 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. 6. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the Development Application. 7. 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 have explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement to which I have had regard. 8. The Court has evidence of the registered proprietor of the Site providing owners consent to the Proposed Development in accordance with cl 49 of the Environmental Planning and Assessment Regulation 2000 (see Tab1 of the Class 1 Application). 9. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 prevents a consent authority from granting consent to the carrying out of any development on land unless: 1. It has considered whether the land is contaminated, and 2. If the land is contaminated, it is satisfied that the land is suitable in its contaminated state for the purpose of which the development is proposed to be carried out or, if the land requires remediation to make it suitable, it is satisfied that the land will be remediated before the land is used for the relevant purpose. 1. Due to the historical use of the land for residential purposes, the Respondent is satisfied that it is highly unlikely that the land is contaminated and is satisfied that the land is suitable for the Proposed Development. 2. The subject land is located within the Georges River Catchment. Having regard to the proposed use as dwelling houses, the Respondent having considered the matters in s 6.6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 is satisfied that the development will: 1. have a neutral or beneficial effect on the quality of water entering a waterway, 2. not have an adverse impact on water flow in a natural waterbody, 3. not increase the amount of stormwater run-off from a site, 4. incorporate on-site stormwater retention, 5. not impact the level and quality of the water table, 6. not have a cumulative environmental impact on the regulated catchment, 7. make adequate provision to protect the quality and quantity of ground water, 8. The development does not cause water to enter a natural waterbody. 1. There are no trees or relevant vegetation on the site. The Proposed Development is not likely to significantly affect threatened species within the meaning of s 7.2 of the Biodiversity Conservation Act 2016 and the Development Application is not required to be accompanied by a biodiversity development. 2. The Proposed Development was formally made on 9 May 2023 which predates the commencement of the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP) which at cl 1.8A provides a savings provision relating to development applications. Accordingly, the provisions of the Bankstown Local Environmental Plan 2015 (BLEP) remain relevant and applicable. 3. The Site is situated within Zone R2 Low Density Residential pursuant to the provisions of the BLEP. Development for the purpose of dual occupancy development is permissible with consent pursuant to cl 2.3 of the BLEP. 4. Development for the purposes of demolition is permissible with consent pursuant to cl 2.7 of the BLEP. 5. Clause 4.3 of the BLEP provides for a maximum height of building (HOB) development standard of 9 m and the Proposed Development will have a maximum HOB of 6.994 m. 6. Clause 4.4 of the BLEP provides for a maximum floor space ratio (FSR) development standard of 0.50:1. The Proposed Development has a floor space ratio of 0.49:1 in accordance with the FSR calculation table in the Site Plan Drawing No. 04 Rev H. 7. Wall height development standard pursuant to cl 4.3(2B)(b) BLEP of a maximum of 7m. The parties agree that the Rev H architectural plans brings the Proposed Development into compliance as depicted in the Elevations/Section Drawing No. 17 Rev H. 8. The Site is not on land within the Acid Sulphate Soils Map Area pursuant to cl 6.1 of the BLEP. 9. The property is not land identified as 'Biodiversity' on the Terrestrial Biodiversity Map pursuant to cl 6.4 of the BLEP. 10. The Development Application was notified by the Respondent between 12 May 2023 and 25 May 2023. 2 submissions were received. The Respondent considers that the amended application satisfactorily responds to the relevant matters raised by the objectors. 11. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment. 12. As 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. Notations: 1. The Court notes: 1. The Canterbury-Bankstown Council (the Council) as the relevant consent authority has agreed, under cl 37 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the Development Application No DA-480/2023 the subject of these proceedings as shown in the following amended plans and details: 1. Architectural Plans by Campbell Hill Group Pty Ltd: 1. Front Perspective – Schedule of Finishes, Drw 01, Rev H 29 Jan 24. 2. Contents/Axon Renders, Drw 02, Rev H 29 Jan 24. 3. Notes/ Requirements, Drw 03, Rev H 29 Jan 24. 4. Site Plan, Drw 04, Rev H 29 Jan 24. 5. Subdivision Plan, Drw 05, Rev H 29 Jan 24. 6. Sediment Control Plan, Drw 06, Rev H 29 Jan 24. 7. Streetscape, Drw 07, Rev H 29 Jan 24. 8. Sun Study, Drw 08, Rev H 29 Jan 24. 9. Hourly Sun Study, Drw 09, Rev H 29 Jan 24. 10. View from Sun Hourly Sun Study Drw 10, Rev H 29 Jan 24. 11. 3d Images Hourly Sun Study Drw 11, Rev H 29 Jan 24. 12. Site Analysis Plan, Drw 12, Rev H 29 Jan 24. 13. Demolition Plan, Drw 13, Rev H 29 Jan 24. 14. Ground Floor Plan, Drw 14, Rev H 29 Jan 24. 15. First Floor Plan, Drw 15 Rev H 29 Jan 24. 16. Elevations/Sections Drw 16, Rev H 29 Jan 24 17. Elevations/Sections, Drw 17 Rev H 29 Jan 24 18. Elevations Drw 18, Rev H 29 Jan 24. 19. Fence Details, Drw 19, Rev H 29 Jan 24 20. Roof Plan, Drw 20, Rev H 29 Jan 24 21. Window & Door Schedule, Drw 21, Rev H 29 Jan 24. 1. Landscape Plan by Eco Design Landscape Solutions dated 29 January 2024; 2. BASIX Certificates: 1. Basix Requirements, A3 Basix Certificates – 4 McCrossin, Drw 25, Rev H 29 Jan 24; and 2. Basix Requirements, A3 Basix Certificates – 4A McCrossin, Drw 26, Rev H 29 Jan 24 (referred to as "the amended DA") 1. I granted leave to the parties to file the amended DA and note that the amended DA was filed on 30 January 2024. Orders: 1. The Court orders: 1. The Appeal is upheld. 2. Development Application DA-480/2023 (as amended) for the demolition of existing structures and construction of a detached dual occupancy development with Torrens title subdivision at 4 McCrossin Avenue, Birrong is approved subject to the conditions set out in Annexure A to this agreement. E Espinosa 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: 20 February 2024