Land and Environment Court New South Wales Medium Neutral Citation: Campsie Holdings Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 102 Hearing dates: 5 June 2018 Date of orders: 05 June 2018 Decision date: 05 June 2018 Jurisdiction: Class 1 Before: Moore J Decision: Directions at [27] Catchwords: DEVELOPMENT APPLICATION - no council issues - objector concerns - minor revisions to plans and conditions in response - no basis to refuse development consent - directions for revised plans and conditions to permit granting of development consent Legislation Cited: Canterbury Local Environment Plan 2012 Category: Principal judgment Parties: Campsie Holdings Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: Ms S Duggan SC (Applicant) Mr A Seton, solicitor (Respondent) Solicitors: Sparke Helmore (Applicant) Marsdens Law Group (Respondent) File Number(s): 143291 of 2017 Publication restriction: No EXTEMPORE Judgment 1. HIS HONOUR: On 20 April 2016, Campsie Holdings Pty Ltd (the Applicant) lodged an application for development at 46-48 South Parade, Campsie with the former Canterbury Council (the Council), prior to its amalgamation with its neighbouring local government area to form the City of Canterbury‑Bankstown. The proposed development at 46 to 48 South Parade is to be constructed for significant part on a car-park which had been a public car-park in ownership of the Council. As a consequence of the fact that the land that had been owned by the Council forms a significant part of the site of the proposed development, the Council has taken the position there being no further merit matters arising out of the Council's Statement of Facts and Contentions that are in dispute between the Council and the Applicant that the Council should neither oppose nor support the proposed development. 2. I attended the site this morning in company with the legal representatives of the parties and those advising and instructing them. During the course of the site inspection, I heard evidence from three persons who had notified the Council that they wished to be heard in objection to the proposed development. The matters that were raised in the course of those oral objection submissions have been provided to me to the extent that those objectors spoke to documents. Those documents have become part of Exhibit 1 in the proceedings. 3. In the Council's Bundle of Documents (which is Exhibit 5 in the proceedings), I have also been provided with the objections which had been provided to the Council concerning what is a slightly earlier iteration of the proposed development. The written objections were contained in the bundle between folios 169 and 176. 4. I have carefully read those objections to the extent that they expand on the matters that are in the documents forming part of Exhibit 1. 5. This morning, Ms Duggan of senior counsel has sought leave to rely on further amended plans, there being no objection to those further amended plans raised by the Council. The amendments to the plans are responsive to matters which have arisen out of the joint expert conferencing process and which address and resolve matters contained in the Council's contentions. 6. Some further revisions to elements of those plans will be necessary as a result of what has unfolded during the course of these proceedings. I have also been provided with a copy of the Council's proposed conditions of consent, together with the Applicant's response to them. 7. Those proposed conditions of consent are now, in general terms, settled between the parties, but will need to be revised further to accommodate matters that have arisen during the course of this morning's proceedings. 8. I have heard brief oral expert evidence from Mr Furlong, the Applicant's town planner, and Mr Barwick, the Council's town planner, concerning the accessibility matters that are to be incorporated to enable wheelchair access to the uppermost level, communal open space on the roof of the proposed development. I am satisfied that that matter, which had been raised in the Statement of Facts and Contentions has now been resolved. 9. The proposed development comprises eight one-bedroom units, 15 two‑bedroom units and five three-bedroom units to be located on a number of levels over basement parking and over commercial space at the ground level. 10. The number of car-parking spaces that had existed in the open council car-park are now to be replaced by council car-parking spaces at the basement levels of the development with those to be in a stratum that will be vested in the Council for public parking purposes. I am satisfied that that arrangement, which meets the requirements that the Council had originally raised in its contentions, is also an appropriate response to one of the matters raised during the course of the oral submissions from the objectors this morning - that is, some future concern that those parking spaces would become paid parking rather than merely a council car-park. 11. To the extent that there is some possibility that paid parking might become a requirement in future, that will only get imposed if the Council were to adopt a policy decision to that end and is entirely unrelated to the private ownership of the other elements of the proposed development. 12. I should observe that one of the matters that was pressed by two of the objectors who spoke this morning was what they put as the appropriateness or otherwise of me continuing to hear and determine this matter in the light of a current investigation being undertaken by the Independent Commission Against Corruption (the ICAC) into the activities of a number of members and employees of the former Canterbury Council. 13. That is not a matter that arises for my consideration in these proceedings, given that there has been no public interest application made by anybody (such as the ICAC) for consideration of this development application to be deferred pending any determination of investigations made by that commission. As a consequence, there is no reason based on those investigations why I should not proceed to hear and determine the matter today as I am doing. That, of course, is not to be taken to be any comment on the merits or otherwise (such as they might or might not be) of the concerns that were expressed by the objectors, merely a reflection of the fact that those matters do not properly fall within my jurisdiction for consideration in the matter that is presently before me. 14. There were a number of other matters that were raised by the objectors which went to matters relating to the potential impacts on the existing Campsie Public School (the school) located immediately to the south of the boundary of the proposed development site. There were matters that were pressed concerning overlooking and privacy. 15. One element of that has been agreed to be addressed by the Applicant by including a privacy screen of translucent glass at the only location on the communal open space on the uppermost level where there was some potential of overlooking of the school's grounds. Whilst strictly speaking such privacy screen might not have been required as a result of the separation distance between that potential overlooking location and the school's grounds, nonetheless the Applicant has agreed to the incorporation of a requirement for that privacy screen. That privacy screen will be incorporated in the minor further revisions to the plans that will be required. 16. A second matter which was pressed by the Deputy Principal of the school when she spoke to me this morning concerned potential construction impacts on the school. The Applicant has agreed to the provision of a construction management plan to the satisfaction of the Council prior to the release of the construction certification and that is to be incorporated in the conditions of consent. 17. The school also raised the question of whether or not in Harold Street, there should be a prohibition on the use of that street during the normal restricted traffic periods, before and after school, in order to prevent heavy vehicles using Harold Street (for the purposes either the demolition phase of the existing building on the corner of South Parade and Beamish Lane that will be removed as a consequence of the proposed development and during the construction of the replacement development). The Applicant has agreed to the incorporation of such a requirement. It will be incorporated in the construction management plan, arising as part of the conditions of consent and is to be reflected expressly in the conditions of consent themselves. 18. A further matter that was pressed by one of the objectors concerned potential unsatisfactory acoustic positions concerning the units within the proposed development. As part of the development application process, the Applicant had lodged an acoustic assessment report by Acoustic Logic with the Council as part of the material. That report was dated April 2016 and it included, as 5.5, a commentary concerning potentiality for the need of mechanical ventilation, to ensure that there was, if the windows inside the dwellings needed to be closed for acoustic protection reasons, adequate ventilation to meet the relevant Australian Standard. That was discussed in 5.5 of the Acoustic Logic report. 19. The conditions of development consent proposed by the Council, and agreed to by the Applicant, had not, in condition 62.2, adequately addressed the necessity for a mechanical engineer to confirm whether supplementary ventilation was required to meet the Australian Standard. A revised condition of consent will be included that provides a proper process for that assessment prior to the issue of a construction certificate and if necessary the incorporation of the requirements for mechanical ventilation if they arise. 20. I have also considered carefully the matters that relate to the Council's planning controls that are potentially engaged with the proposed development. I have read the zone objectives of the B2 Local Centre zone in the Canterbury Local Environmental Plan 2012, and although one of the objectors pressed that the proposed development was inconsistent with them, did not satisfy those zone objections, a careful reading of the zone objectives satisfies me that the proposed development is consistent with their terms. 21. A number of matters were also raised by that objector with respect to the requirements of the Canterbury Development Control Plan 2012 (the DCP). I have dealt with the issue of noise, a matter that is called up by the DCP. The objection that was raised also dealt with rail noise and vibration that was in my assessment adequately covered by the Acoustic Logic report, and there is a requirement in a deferred commencement condition, that construction be undertaken in a fashion acceptable to Sydney Trains. As a consequence, I am satisfied that there are no rail issues, either of a noise or a construction nature that require to be addressed further. 22. The next matter that was raised out of the DCP, was that the mix of proposed dwellings did not incorporate any dwelling that had more than three bedrooms. Although the DCP includes the possibility of a dwelling mix that incorporates dwellings with more than three bedrooms, I am satisfied that there is no compelling reason, on the basis of my reading of the material that has been tendered, that would mandate the requirement of such a unit of that size. I am satisfied that the mix of eight one-bedroom units, 15 two-bedroom units and five three-bedroom units is sufficiently consistent with the requirements of the DCP, that it is unnecessary to make any required alteration to them. 23. The final matter that was raised, that is of relevance, is the question of whether there is a requirement for deep soil landscaping planting. I have considered the requirements of the DCP, and there are no mandatory requirements engaged. 24. Whilst it might well be desirable that there be some streetscape planting, as has occurred in the development immediately to the east on the corner of Harold Street and South Parade, that is not proposed in the Applicant's landscaping plan. It has not been proposed as a mandated condition of consent by the Council. 25. I am satisfied, in the context of the tight urban site, that is the site within which the development is proposed, that there would be no way that landscaping of a deep soil nature at ground level could be incorporated in a reasonable development for the site, and that, in some respects, no trees in the streetscape are better than tokenistic trees that might struggle for survival. 26. The consequence of all that is that I am satisfied that the appeal should be upheld and that development consent should be granted to the proposed development (subject to the provision of further revised plans and further revised conditions of consent). 27. To permit that to occur, and mindful of the timetable that was proposed for the provision of further material, I give the following directions: 1. Revised settled plans dealing with the outcome of matters dealt with by me today, are to be filed and served by the close of business on Monday 11 June 2018; 2. Revised settled conditions of consent to be filed and provided electronically to my associate as a Word document by 13 June 2018; and 3. The matter is set down for mention before me, at 9.00 am on Friday 15 June 2018; 4. If directions 1 and 2 are complied with, I will make orders in chambers to grant the appeal and grant development consent subject to conditions, and vacate the mention set for 15 June 2018. ********** NOTE: The revised plans and conditions were subsequently provided. Development consent was granted subject to conditions (see orders and conditions in Annexure A) on 14 June 2018. Annexure A - conditions of consent - 13 Jun 18 (1.01 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: 05 July 2018