Hiep Van Nguyen & Anor v Canterbury-Bankstown Council [2017] NSWLEC 1234

Land and Environment Court New South Wales

Medium Neutral Citation: Hiep Van Nguyen & Anor v Canterbury-Bankstown Council [2017] NSWLEC 1234 Hearing dates: 3 and 4 April 2017 Date of orders: 11 May 2017 Decision date: 11 May 2017 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The appeal is dismissed. 2. Development Application DA-381/2016 for shop-top housing at 1 Cambridge Avenue, Bankstown is refused. 3. The exhibits, except Exhibits A, B and 1, are returned Catchwords: DEVELOPMENT APPLICATION: shop top housing; minimum lot size; minimum lot width; amalgamation requirement; clause 4.6; site isolation; building separation; setbacks; solar access; apartment design; overdevelopment; site suitability; precedent Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Bankstown Local Environmental Plan 2015 Cases Cited: Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Category: Principal judgment Parties: Hiep Van Nguyen (First Applicant) Tien Van Nguyen (Second Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: Ms S Duggan (Applicant)

Solicitors: Mr V Conomos, Conomos Legal (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 2016/340406 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Canterbury-Bankstown Council (the Council) of development application no. DA-381/2016 for shop top housing at 1 Cambridge Avenue, Bankstown (the site). 2. The application, as amended, proposes the construction of a four storey shop top housing development containing a ground floor neighbourhood shop and parking for six cars, two motorcycles and two bicycles, with three residential levels above. The upper levels contain three 2 bedroom units and one 1 bedroom unit, as well as private and communal open space. 3. The contentions raised by the Council as grounds for refusal were that the site had inadequate area and width to accommodate the development proposed requiring amalgamation and, as a result, the proposed development was an overdevelopment of the site. The applicant claimed that the site was unable to be amalgamated with adjoining sites to create the required area and width due to the unwillingness of the adjoining landowner to sell but that the development ought be approved in any event on its merits and given the circumstances.