Land and Environment Court New South Wales Medium Neutral Citation: Palms (Chullora) Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1561 Hearing dates: Conciliation conference on 3 July, 5 August, 13 August 2024 Date of orders: 12 September 2024 Decision date: 12 September 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The Applicant is to pay the Respondent's costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $15,000. (2) The Applicant's written request, prepared by Urbis dated September 2023, made pursuant to cl 4.6 of the Canterbury-Bankstown Local Environmental Plan 2023 to vary the height development standard in cl 4.3 of the Canterbury-Bankstown Local Environmental Plan 2023, is upheld. (3) The appeal is upheld. (4) Development Application No DA-1196/2023, as amended, for the staged demolition, construction and operation of a pub, hotel, mixed-use building, and residential flat buildings at 167-183 Hume Highway, Greenacre, is determined by the grant of consent subject to the conditions at Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – construction of a pub, hotel, mixed-use building and residential flay building – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 27, 38 Canterbury-Bankstown Local Environmental Plan 2015, cll, 4.3, 4.4, 4.6, 5.1, 5.10, 5.21, 6.2, 6.3, 6.9, 6.15, 6.32, Sch 1 cl 28 State Environmental Planning Policy (Housing) 2021, ss 144, 145, 147, Sch 7A s 8(2A), Sch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy 2004 (Building and Sustainability Index: BASIX) State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120, 2.122 State Environmental Planning Policy (Industry and Employment) 2021, s 3.6, Sch 5 Texts Cited: Canterbury Bankstown Community Participation Plan 2019 Canterbury-Bankstown Development Control Plan 2023 Category: Principal judgment Parties: Palms (Chullora) Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: A Whealy (Solicitor)(Applicant) M Bonanno (Solicitor)(Respondent) Solicitors: Mills Oakley (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2023/448559 Publication restriction: No Judgment 1. COMMISSIONER: Palms (Chullora) Pty Ltd have sought development consent for the staged demolition of an existing pub and construction of a new pub, hotel, mixed use building and residential flat buildings at 167-183 Hume Highway, Greenacre (DA-1196/2023). These Class 1 proceedings, which have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), arise as a result of the deemed refusal, by Canterbury-Bankstown Council, of this application. 2. The Court arranged a conciliation conference and hearing under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 July, 5 and 13 August 2024. I presided over the conciliation conference. 3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021 (EPA Regs), the Council agreed to the applicant amending the development application to adequately respond to the Council's contentions. The application as amended is set out in Annexure B, and can be summarised as: 1. Amendments to the general arrangement of the built form, including separating Building B into two, combining Buildings D and E into one, and increasing upper level setbacks and the building profile of Building C. 2. Amending entries for both pedestrians and vehicles. 3. Amendments to the landscape to create a central spine, increase communal open space and deep soil, incorporate wayfinding and generally increase amenities. 4. Updated stormwater design. 5. Updates to supporting documentation. 1. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that 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, however, to exercise this function, there are jurisdictional prerequisites that must be satisfied. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied, and from this I note the following points. Jurisdictional matters 1. The development application was made with the written consent of the owner of the land, lot 402 in DP 631754. 2. Pursuant to cl 5.1 of the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP), a portion of the site is identified on the 'Land Reservation Acquisition Map' which constitutes a 600m2 extension of Peter Reserve to the east of the site. No work is proposed on this portion of the site, however on 19 June 2024 a Voluntary Planning Agreement was entered into between the parties for this parcel of land to be dedicated to the Council. 3. The application was adequately notified in accordance with the Canterbury Bankstown Community Participation Plan 2019 from 25 October and 15 November 2023, during which time one submission was made. Based on the amended application the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in this submission. The parties agree that the amended application does not necessitate renotification. State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004 1. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004 and the requirement of cl 27 of the EPA Reg. Compliance with the commitments within this certificate is further required through conditions of consent. State Environmental Planning Policy (Housing) 2021 (Housing SEPP) 1. Pursuant to the savings and transitional provisions of the Housing SEPP (s 8(2A) of Sch 7A) and the parameters in s 144, Ch 4 of the Housing SEPP applies to the development. 2. Pursuant to s 145, the Council has referred the application to its design review panel for advice on the quality of the design of the development. 3. Pursuant to the required considerations set out in s 147: 1. The Design Verification Statement and ADG Compliance Statement by EJE Architecture dated August 2024 assesses the proposed development against the design quality principles set out in Sch 9 of the Housing SEPP and the Apartment Design Guide (subss 147(1) and (2)). 2. The parties submit that the development application was considered by the Canterbury Bankstown Design Review Panel on 9 November 2023. The comments provided by the panel are set out in the Statement of Facts and Contentions. From the parties' submission and the information contained in the amended application, I accept that the advice from the panel has been considered in the assessment of this application (s 147(3)). State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Detailed Site Investigation by Aargus dated 9 September 2021, and the parties' submission, I accept that the subject site is not contaminated for the purposes of this clause and is suitable for the intended use. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) 1. The only street frontage for the subject site is the Hume Highway, which is a classified road. The site is currently accessed via four vehicular crossovers to this road. The proposed development will reduce this to two crossovers: one exit and one entry serviced by a slip lane. Pursuant to the requirements of s 2.119, based on the Traffic Impact Statement prepared by CJP Consulting Engineers dated 21 September 2023 and the parties' submission, I accept that vehicle access from this road is the only option, however the road and access design is such that the safety, efficiency and ongoing operation of the highway will not be adversely affected by the development in any of the ways listed in s 2.119(b). 2. Further, as required by s 2.119(c), the parties submit, and I accept, that the development is designed to adequately ameliorate potential traffic noise and vehicle emissions within the site arising from the Hume Highway, based on the recommendations and information provided in the following documents: * Acoustic Report by Renzo Tonin & Associates dated 20 September 2023 * Natural Ventilation Statement by Windtech dated 10 July 2024 * Air Quality Assessment by CETEC dated 15 May 2020. 1. Additionally, from the above acoustic report and the parties' submission I accept that appropriate measures have been taken in the design of the residential accommodation to ensure it meets the requirements of s 2.120(3). 2. Pursuant to the requirements of s 2.122, and as the development is considered 'traffic generating development' under Sch 3 of the Transport SEPP, the application has been referred to Transport for New South Wales (TfNSW). A response was provided with recommended conditions, which have been incorporated into the conditions of consent at Annexure A. State Environmental Planning Policy (Industry and Employment) 2021 (SEPP Industry) 1. Signage is proposed as part of this development application and accordingly, the provisions of s 3.6 of the SEPP Industry must be met. From the parties' submission and the information within the Statement of Environmental Effects (SEE) by Urbis dated September 2021, I accept that the proposed signage is consistent with the objectives set out in s 3.1(1)(a) of the SEPP Industry, and further that the signage satisfies the assessment criteria specified in Sch 5. Canterbury-Bankstown Local Environmental Plan 2023 1. The subject site is zoned B6 Enterprise Corridor under the CBLEP, within which development for the purposes of business identification signs, hotel or motel accommodation, and food and drink premises (including pubs) is permissible with consent. The proposed development is consistent with the objectives of this zone. 2. In addition, pursuant to CBLEP Sch 1 cl 18, the site is identified as "APU 18" on the Additional Permitted Uses Map. As the site is greater than 500m2 and the proposed development is mixed use, development for the purposes of residential flat buildings is also permitted with consent. 3. Pursuant to CBLEP cl 4.3, the maximum building heights of 20m, 17m and 11m applies to various parts of the subject site. The proposed development exceeds this development standard, proposing a maximum height of 22.9m, 17.5m and 11m. 4. As a result of this exceedance, cl 4.6(3) of the CBLEP allows the applicant to request a contravention of this development standard through the submission of a document. This document must demonstrate that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicant has submitted a written request prepared Urbis, dated September 2023 (the cl 4.6 request). Pursuant to CBLEP cl 4.6, I am satisfied that: 1. The cl 4.6 request demonstrates that compliance with the Height of Buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of the Height of Buildings development standard, notwithstanding the non-compliance. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties due to its central location within the site siting and it being minor in nature. 2. The cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that: 1. The breach is the result of an architectural modification to change the shape and height of the roof to better reflect the style and character of the existing dwelling, and adjoining dwellings to either side. 2. The breach of building height is minor in nature in both qualitative and quantitative terms and does not result in any adverse impacts on adjoining properties. Further, it does not result in a dwelling that is excessive in terms of bulk and scale within its context. 1. The contravention is therefore justified by balancing no additional adverse impact on the neighbouring residents whilst still providing necessary rooftop building services, by the breach of the standard being minor in nature, and by the development responding to a discrepancy between the CBLEP and the Canterbury-Bankstown Development Control Plan 2023 (CBDCP) that prescribes a greater height in storeys than the proposed development. 2. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the B6 Enterprise Corridor zone and the development standard. 1. CBLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 1.3:1, which the proposal meets with an FSR of 1.3:1. 2. The site is not identified as a heritage item, nor located within a heritage conservation area pursuant to CBLEP cl 5.10. 3. Pursuant to CBLEP cl 5.21, the site is subject to minor overland flooding in the southwest corner. From the parties' submission and the information contained in the Flood Impact Report by ENTEC Consultants dated 11 September 2023, I accept that the matters listed in cl 5.21(3) have been considered in the assessment and amendment of the application, and that the resultant flooding is of such a limited nature that it is considered generally safe for people, vehicles and buildings in accordance with subcll 5.21(2)(a),(c) and (d). Further, I accept from the above information that the proposed development will not adversely affect the environment or flood behaviour in a way that results in detrimental increases in the potential flood affectation of other properties in accordance with subcll 5.21(2)(b) and (e). Accordingly, the requirements of cl 5.21 are met. 4. CBLEP cl 6.2 makes provisions for earthworks to ensure they will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. From the parties' submission and the information contained in the Geotechnical Investigation prepared by Aargus, 26 July 2023 I accept that the matters set out in this clause have been considered and that, subject to the imposition of the recommended conditions of consent that now form part of Annexure A, the objectives of this clause can be met by the proposed development. 5. In accordance with the requirements of CBLEP cl 6.3, from the parties' submission and the stormwater management plans by ENTEC Consultants dated 8 August 2023, I accept that the proposed development: 1. Increases and maximises the pervious area on site, reducing catchment flows and negating the need for on-site detention. 2. Avoids significant adverse impacts of stormwater runoff through adequate stormwater and flooding measures, and through the incorporation of water sensitive urban design principles. 1. The application was accompanied by a Services Infrastructure Report by Neuron, dated 19 September 2023 which confirms, in accordance with CBLEP cl 6.9, that all essential services are either already available or can be made available when required. 2. As the proposed development has a commercial floor area of over 200m2 and a residential flat building of four storeys, the design excellence requirements of CBLEP cl 6.15 apply. Based on the information contained in the SEE, the Design Verification Statement, the ADG Compliance Statement and the parties' submission, I accept that the matters listed in cl 6.15(4) have been considered, and that the development exhibits design excellence. 3. In accordance with CBLEP cl 6.32, the development application provides over 30% of the gross floor area for purposes other than residential accommodation. Conclusion 1. For these reasons, 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. 2. 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. 3. The Court notes: 1. Canterbury-Bankstown Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA-1196/2023 to include the documents set out in Annexure 'B'. 1. The Court orders: 1. The Applicant is to pay the Respondent's costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $15,000. 2. The Applicant's written request, prepared by Urbis dated September 2023, made pursuant to cl 4.6 of the Canterbury-Bankstown Local Environmental Plan 2023 to vary the height development standard in cl 4.3 of the Canterbury-Bankstown Local Environmental Plan 2023, is upheld. 3. The appeal is upheld. 4. Development Application No DA-1196/2023, as amended, for the staged demolition, construction and operation of a pub, hotel, mixed-use building, and residential flat buildings at 167-183 Hume Highway, Greenacre, is determined by the grant of consent subject to the conditions at Annexure 'A'. E Washington Commissioner of the Court 448559.23 Annexure A 448559.23 Annexure B ********** 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: 12 September 2024