Bella Ikea Belmore Pty Limited v City of Canterbury Bankstown Council [2017] NSWLEC 1315

Land and Environment Court New South Wales

Medium Neutral Citation: Bella Ikea Belmore Pty Limited v City of Canterbury Bankstown Council [2017] NSWLEC 1315 Hearing dates: Conciliation conference on 16 June 2017 Date of orders: 19 June 2017 Decision date: 19 June 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: construction of a residential flat building; conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Bella Ikea Belmore Pty Limited (Applicant) City of Canterbury Bankstown Council (Respondent) Representation: Solicitor: Mr Griffiths, Bartier Perry (Applicant) Mr Bonanno, Lindsay Taylor Lawyers (Respondent) File Number(s): 2017/11170 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application No. DA-506/2016 for the demolition of existing structures and construction of a six-storey residential flat building including 46 dwellings with basement car parking at 749-757 Canterbury Road, Belmore. 2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 3. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document. 4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 5. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The appeal is upheld. 2. The Applicant is granted leave to amend Development Application No. DA-506/2016 and to rely upon the following amended plans and documents, copies of which are behind Annexure "A": 3. The Applicant is to pay the Respondent's costs pursuant to section 97B of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 4. Development Application No. DA-506/2016 (as amended) for the proposed demolition of existing structures and construction of a six-storey residential flat building including 46 dwellings with basement car parking on Lots 12, 13 and 14 in Deposited Plan 4387, otherwise known as 749-757 Canterbury Road, Belmore, be approved subject to the conditions contained at Annexure "B". ………………………. Commissioner G Brown Annexure "A"- Bella Ikea Belmore Pty Limited v City of Canterbury Bankstown Council - Appeal No 2017/11170 Drawing No. Drawing Name Prepared by Date S34-000, Revision 02 Cover Page Bureau SRH Architecture 4 May 2017 S34-001, Revision 02 Site Analysis Plan & Elevation Bureau SRH Architecture 4 May 2017 S34-002, Revision 02 Demolition Plans Bureau SRH Architecture 4 May 2017 S34-101, Revision 03 Basement Plans Bureau SRH Architecture 4 May 2017 S34-102, Revision 03 Site Plan & Ground Floor Plan Bureau SRH Architecture 4 May 2017 S34-103, Revision 03 Levels 1-3 Plans Bureau SRH Architecture 4 May 2017 S34-104, Revision 03 Levels 4-5 Plan Bureau SRH Architecture 4 May 2017 S34-111, Revision 03 FSR Calculations Bureau SRH Architecture 4 May 2017 S34-112, Revision 03 Area Calculations Bureau SRH Architecture 4 May 2017 S34-121, Revision 03 Shadow Diagrams – Existing 9am 21st June Bureau SRH Architecture 4 May 2017 S34-122, Revision 03 Shadow Diagrams – Proposed 9am 21st June Bureau SRH Architecture 4 May 2017 S34-123, Revision 03 Shadow Diagrams – Existing 12pm 21st June Bureau SRH Architecture 4 May 2017 S34-124, Revision 03 Shadow Diagrams – Proposed 12pm 21st June Bureau SRH Architecture 4 May 2017 S34-125, Revision 03 Shadow Diagrams – Existing 3pm 21st June Bureau SRH Architecture 4 May 2017 S34-126, Revision 03 Shadow Diagrams – Proposed 3pm 21st June Bureau SRH Architecture 4 May 2017 S34-131, Revision 03 Shadow Diagrams – East Elevation Bureau SRH Architecture 4 May 2017 S34-132, Revision 03 Shadow Diagrams – North Elevation – Sheet 1 Bureau SRH Architecture 4 May 2017 S34-133, Revision 03 Shadow Diagrams – West Elevation Bureau SRH Architecture 4 May 2017 S34-134, Revision 03 Shadow Diagrams – North Elevation – Sheet 2 Bureau SRH Architecture 4 May 2017 S34-135, Revision 03 Shadow Diagrams – North Elevation – Sheet 3 Bureau SRH Architecture 4 May 2017 S34-136, Revision 03 Balcony Shadow Diagrams – East Elevation Bureau SRH Architecture 4 May 2017 S34-137, Revision 03 Balcony Shadow Diagrams – North Elevation Bureau SRH Architecture 4 May 2017 S34-141, Revision 03 Shadow Diagrams – Neighbour Elevations Sheet 1 Bureau SRH Architecture 4 May 2017 S34-142, Revision 03 Shadow Diagrams – Neighbour Elevations Sheet 2 Bureau SRH Architecture 4 May 2017 S34-143, Revision 03 Shadow Diagrams – Neighbour Elevations Sheet 3 Bureau SRH Architecture 4 May 2017 S34-201, Revision 03 Elevations – Sheet 1 Bureau SRH Architecture 4 May 2017 S34-202, Revision 03 Elevations – Sheet 2 Bureau SRH Architecture 4 May 2017 S34-301, Revision 03 Section AA Bureau SRH Architecture 4 May 2017 S34-302, Revision 03 Section BB Bureau SRH Architecture 4 May 2017 S34-303, Revision 03 Section CC Bureau SRH Architecture 4 May 2017 S34-304, Revision 03 Section DD Bureau SRH Architecture 4 May 2017 S34-305, Revision 03 Section EE Bureau SRH Architecture 4 May 2017 S34-311, Revision 03 Driveway & Ramp Sections Bureau SRH Architecture 4 May 2017 SK00, Revision C Landscape Site Plan/Roof Plan Carmichael Studios Undated SK01, Revision J Landscape Plan Ground Floor Carmichael Studios Undated SK02, Revision D Landscape Plan Level 04 Carmichael Studios Undated 16H-497-DA-00, Revision B Drawing Index – Hydraulic CSM Group 1 May 2017 16H-497-DA-01, Revision A General Notes & Details CSM Group 16 August 2016 16H-497-DA-02, Revision B Concept SW/Drainage Plan – Basement Level 2 CSM Group 1 May 2017 16H-497-DA-03, Revision B Concept SW/Drainage Plan – Lower Basement Level 1 CSM Group 1 May 2017 16H-497-DA-04, Revision B Concept SW/Drainage Plan – Ground Level CSM Group 1 May 2017 16H-497-DA-04, Revision B Concept SW/Drainage Plan – Ground Level (OSD Details) CSM Group 1 May 2017 16H-497-DA-06, Revision B Concept SW/Drainage Plan – Drains Results Sheet 1 of 2 CSM Group 1 May 2017 16H-497-DA-07, Revision B Concept SW/Drainage Plan – Drains Results Sheet 2 of 2 CSM Group 1 May 2017 16H-497-DA-09, Revision B Concept SW/Drainage Plan – Roof Level CSM Group 1 May 2017 16H-497-DA-09, Revision A Existing Catchment Plan CSM Group 24 October 2016 16H-497-DA-10, Revision A Soil and Water Management Plan CSM Group 24 October 2016 DA211, Revision B Exterior Finishes Schedule – Sheet 1 Bureau SRH Architecture 9 May 2017 DA212, Revision B External Finishes Schedule – Sheet 2 Bureau SRH Architecture 9 May 2017 DA213, Revision B External Finishes Schedule – Sheet 3 Bureau SRH Architecture 9 May 2017 DA214, Revision B External Finishes Schedule – Sheet 4 Bureau SRH Architecture 9 May 2017 Document Prepared by Date BASIX Certificate Number 771735M_02 Outsource Ideas Pty Ltd 8 May 2017