Chrbile Nehme Pty Ltd v Canterbury Bankstown Council [2018] NSWLEC 1031

Land and Environment Court New South Wales

Medium Neutral Citation: Chrbile Nehme Pty Ltd v Canterbury Bankstown Council [2018] NSWLEC 1031 Hearing dates: 12 October 2017 Date of orders: 31 January 2018 Decision date: 31 January 2018 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders:

(1) The appeal is dismissed. (2) Development application DA69/2017 for the demolition of existing structures and the construction of a dual occupancy development with associated Torrens Title subdivision into two lots is determined by refusal. (3) The exhibits are returned, with the exception of Exhibits 1and B. Catchwords: Development Application: dual occupancy; minimum frontage width; irregular configuration; visually prominent tree; parking access and safety. Legislation Cited: Canterbury Local Environment Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Texts Cited: Canterbury Development Control Plan 2012 Category: Principal judgment Parties: Chrbile Nehme (Applicant) Canterbury Bankstown Council (Respondent) Representation: J. Smith (Applicant) P. Jackson (Respondent)

Solicitors:

Fortis Law Group Pikes & Verekers Lawyers File Number(s): 2017/171658 Publication restriction: Nil

Judgment

Background 1. COMMISSIONER: Chrbile Nehme (the Applicant) has appealed a decision by Canterbury Bankstown Council (the Respondent) to refuse his development application (DA69/2017), lodged with the Respondent on 2 March 2017, for the demolition of existing structures and the construction of a dual occupancy development together with an associated Torrens Title subdivision into two lots of the property at 36 Fuller Avenue, Earlwood (the Subject Site). 2. The appeal was filed on 2 June 2017 and comes to the Court pursuant to section s97(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act). 3. The Subject Site is located on the southern side of Fuller Avenue near its terminus adjacent to a Sydney Water canal. The Subject Site is formally identified as Lot B in DP 404374. 4. As a consequence of its location at the end of Fuller Avenue, its proximity to the Sydney Water canal, and the presence of an access handle to the adjoining property at 38 and 38A Fuller Avenue, the Subject Site has a narrow street frontage of 5.4m, and is of an irregular configuration. 5. The Subject Site includes within its front setback a large and visually prominent tree. While the tree was identified within correspondence from Council as belonging to the genus Pinus, this was not confirmed by an arborist or botanist during the hearing. 6. An inspection of the Subject Site was undertaken at the commencement of the proceedings. No objectors sought to make submissions in relation to the appeal. During the inspection the identification of the visually prominent tree as belonging to the genus Pinus was questioned by the Parties, and it was suggested by the Respondent that it may have been an Australian Red Cedar. However, in the absence of evidence from an expert arborist or botanist the tree's genus and species was unable to be confirmed during the hearing. 7. The appeal was subject to mandatory conciliation under s34AA of the Land and Environment Court Act 1979 (LEC Act), which did not result in the matters in contention being resolved. Consequently, the conciliation was terminated and a hearing held forthwith to address the contentions between the Parties. 8. At the commencement of the hearing, the Applicant sought, and was granted, leave to rely on amended plans that were tendered as evidence as part of a joint report of planning experts.