Ray Saar & Anor v Canterbury-Bankstown Council [2017] NSWLEC 1340

Land and Environment Court New South Wales

Medium Neutral Citation: Ray Saar & Anor v Canterbury-Bankstown Council [2017] NSWLEC 1340 Hearing dates: 28 June, 2017 Date of orders: 29 June 2017 Decision date: 29 June 2017 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The appeal is upheld. 2. Development Application No's 432/2016 and 433/2016 for the construction of attached dual occupancies and Torrens Title subdivision at No.'s 10 and 12 Tempe Street, Earlwood are approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits 2 and 3, are retained. Catchwords: DEVELOPMENT APPLICATIONS: minimum lot size for dual occupancy development and subdivision Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Canterbury Local Environmental Plan 2012 Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827 Greenpark Projects 2 Pty Ltd v Canterbury Bankstown Council [2016] NSWLEC7 Category: Principal judgment Parties: Ray Saad (First Applicant) Ramzi Srour (Second Applicant) Canterbury-Bankstown Council (Respondent) Representation: Solicitors: Mr A Whealy, Mills Oakley (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 17/67557 and 17/67558

Judgment 1. The applicant lodged Development Application No's 432/2016 and 433/2016 with Canterbury-Bankstown Council in September 2016 (the applications). The applications were for development on two adjoining vacant lots being 10 Tempe Street and 12 Tempe Street, Earlwood. 2. The applications sought consent to subdivide each of the lots into two Torrens Title lots and erect a dual occupancy on each new lot resulting in 4 dwellings on 4 lots. 3. The issue in contention was the size of the existing and the proposed lots which did not comply with the minimum lot size development standards under the Canterbury Local Environmental Plan 2012 (the LEP), and whether or not the pre-conditions to consent under clause 4.6 of the LEP are met which justify the variation to the standards sought. 4. The lot size non-compliances were the only contended issue and were common to both applications. The cl 4.6 written requests for each application were identical in their justification to vary the lot size standards. The Court was therefore requested to deal with both applications concurrently and in a single decision.