Land and Environment Court New South Wales Medium Neutral Citation: Z R International Holding Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1472 Hearing dates: Conciliation conference on 28 July 2017 Date of orders: 31 August 2017 Decision date: 31 August 2017 Jurisdiction: Class 1 Before: Dickson C Decision: See [5] below Catchwords: DEVELOPMENT APPEAL under s97(1) against refusal of a modification application for a residential flat building - amended design- agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Z R International Holding Pty Ltd (Applicant) Canterbury Bankstown Council (Respondent) Representation: Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2017/00060170 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal, under s96(2) of the Environmental Planning and Assessment Act 1979, against Council's refusal of development application number DA-165/2012/C. The application seeks approval for the modification of the consent to modify the unit layouts, increase the number of units and the unit mix with subsequent amendments to the building façade and basement car park. The development is proposed at 6 Broughton Street, Canterbury. 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, 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 are: 1. Leave is granted to substitute the following plans for the plans and documents that are the subject of Modification Application No. DA-165/2012/C: Drawing No. Name Revision Drawn By Date S96000 Cover Sheet C CD Architects 8 August 2017 S96001 Compliance Sheet C CD Architects 8 August 2017 S96002 Site Plan C CD Architects 8 August 2017 S96003 Site Plan and Site Analysis B CD Architects 20 June 2017 S96100 Lower Basement Floor Plan C CD Architects 8 August 2017 S96101 Upper Basement Floor Plan C CD Architects 8 August 2017 S96102 Ground Floor Plan C CD Architects 8 August 2017 S96103 Level 01 Floor Plan C CD Architects 8 August 2017 S96104 Level 02 Floor Plan C CD Architects 8 August 2017 S96105 Level 03 Floor Plan C CD Architects 8 August 2017 S96106 Level 04 Floor Plan C CD Architects 8 August 2017 S96107 Level 05 Floor Plan C CD Architects 8 August 2017 S96108 Roof Level Plan C CD Architects 8 August 2017 S96200 East & West Elevations C CD Architects 8 August 2017 S96201 North & South Elevations C CD Architects 8 August 2017 S96300 Sections C CD Architects 8 August 2017 S96301 Sections C CD Architects 8 August 2017 S96500 Pre + Post adaptable unit layout B CD Architects 20 June 2017 S96600 Shadow Diagrams C CD Architects 8 August 2017 S96601 Shadow Diagrams C CD Architects 8 August 2017 S96602 Shadow Diagrams C CD Architects 8 August 2017 S96603 Solar Access to Common Open Space – 9AM – 11AM B CD Architects 8 August 2017 S96604 Solar Access to Common Open Space – 12PM & 1PM B CD Architects 8 August 2017 S96605 Solar Access to Common Open Space – 2PM & 3PM B CD Architects 8 August 2017 S96700 GFA Calculation C CD Architects 8 August 2017 S96701 GFA Calculation Approved DA A CD Architects 20 June 2017 S96702 Solar Access Plan C CD Architects 8 August 2017 S96702-1 Solar Study Unit 504 – Sheet 1 A CD Architects 8 August 2017 S96702-2 Solar Study Unit 504 – Sheet 2 A CD Architects 8 August 2017 S96703 Ventilation Diagrams B CD Architects 8 August 2017 S96704 3D Views B CD Architects 8 August 2017 S96707 Common Open Space A CD Architects 20 June 2017 S96708 Approved DA – Common Open Space A CD Architects 20 June 2017 S96710 Photomontage A CD Architects July 2016 S96730 Finishes Schedule A CD Architects July 2016 S96740 Sun View at 9am B CD Architects 8 August 2017 S96741 Sun View at 10am B CD Architects 8 August 2017 S96741-1 Sun View at 10:30 A CD Architects 8 August 2017 S96742 Sun View at 11am B CD Architects 8 August 2017 S96742-1 Sun View at 11:30am A CD Architects 8 August 2017 S96743 Sun View at 12pm B CD Architects 8 August 2017 S96743-1 Sun View at 12:30pm A CD Architects 8 August 2017 S96744 Sun View at 1pm B CD Architects 8 August 2017 S96745 Sun View at 2pm B CD Architects 8 August 2017 S96746 Sun View at 3pm B CD Architects 8 August 2017 S0100 Shoring and Bulk Excavation Plan and Details H Australian Consulting Engineers 8 August 2017 S0101 Shoring Elevations D Australian Consulting Engineers 7 August 2017 S0102 Shoring Details E Australian Consulting Engineers 7 August 2017 S0200 Footing Plan and Details B Australian Consulting Engineers 8 August 2017 S0300 Basement B2 Slab Plan Sections and Details C Australian Consulting Engineers 8 August 2017 S0400 Basement B1 Slab Plan Sections and Details C Australian Consulting Engineers 8 August 2017 S0500 Ground Floor Slab Plan Sections and Details D Australian Consulting Engineers 8 August 2017 Document reference Document Name Prepared by Dated 735964M_03 BASIX Certificate Outsource Ideas P/l 8 August 2017 GS6246-2A Addendum Geotechnical Investigation Report Aargus 8 August 2017 16350 Letter regarding Basement Car Parking Layout Varga Traffic Planning 8 August 2017 1. The appeal is upheld; 2. Modification Application No. DA-165/2012/C to modify Development Consent No. DA-165/2012 (as modified) for the construction of a 6 storey residential flat building containing 28 units (1x studio, 4x 1 bedroom, 21x 2 bedroom and 2x3 bedroom units) over 2 levels of basement car parking containing 41 car parking spaces at Lot 5 DP 828270 (6 Brought on Street, Canterbury), by amending unit layouts and increasing the number of units to 32, changing the unit mix to 4 x 1 bedroom and 22 x 2 bedroom units and 6 x 3 bedroom units, amending the layout of the basement car park and increasing the number of car parking spaces to 49, and adjusting the facade, is determined by approving the modification as set out in Annexure "A" 3. As a consequence of order (3), Development Consent No. DA-165/2012 is subject to the consolidated, modified conditions of consent as set out in Annexure "B". ……………. D M Dickson Commissioner of the Court 60170.17 Dickson (C) Annexure A (159 KB, pdf) 60170.17 Dickson (C) Annexure B (247 KB, pdf) 60170.17 Dickson - Plans (6.51 MB, pdf) 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: 31 August 2017