Land and Environment Court New South Wales Medium Neutral Citation: M.R.R Property Investments Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1030 Hearing dates: Conciliation conference on 25 January 2019 Date of orders: 31 January 2019 Decision date: 31 January 2019 Jurisdiction: Class 1 Before: Dickson C Decision: See [7] below Catchwords: DEVELOPMENT APPLICATION: multi dwelling residential – affordable housing provision - conciliation conference; agreement between the parties; orders Legislation Cited: Canterbury Local Environmental Plan 2012 Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Category: Principal judgment Parties: M.R.R Property Investments Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Solicitors: V Conomos, Conomos Legal (Applicant) S Kondilios, Hall & Wilcox Lawyers (Respondent) File Number(s): 2018/139522 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the deemed refusal of its development application DA/121/2018. As lodged the application sought consent for: the demolition of existing structures and construction of infill affordable housing comprising a multi-dwelling housing development for 17 dwellings and basement car parking. The development is proposed at 90, 92 and 94 Stoddart Street, Roselands (Lot 422 in DP15383, Lot 421 in DP 15383 and Lot 420 in DP15383). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 5 November 2018. With the consent of the parties, a further conciliation conference was listed and held on 25 January 2019. I presided over that conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. This decision involved the upholding of the appeal and the granting development consent to the development application subject to conditions. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. The development application is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) under the provisions of Division 1: Infill Affordable Housing. 2. The development complies with the relevant development standards in Canterbury Local Environmental Plan 2012 (LEP 2012). 3. The subject site is zoned R3- Medium Density Residential under the LEP 2012. The proposed development: 'Multi-dwelling housing' is permissible in the R3 zone, satisfying cl 10(1)(a) of SEPP ARH. 4. The site does not contain a heritage item (cl 10(1)(b) of SEP ARH). 5. The subject site is in an accessible location (as defined in the instrument) being 350m walking distance to of a bus stop with services that meet the requirements of cl 10(2) of SEPP ARH. 6. The development consent allocates the correct percentage of gross floor area to affordable housing in accordance and complies the floor space ratio control at cl 13 of SEP ARH. 7. The development complies with the standards in cl 14 of SEPP ARH. 8. In making these orders, I have taken into consideration whether the design of the development is compatible with the character of the local area (cl 16A of SEPP ARH). 9. The conditions of consent incorporate conditions which require the dwellings proposed to be used for the purposes of affordable housing will be used for the purposes of affordable housing for 10 years from the date of issue of an occupation certificate and for them to be managed by a registered community housing provider. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Court Act are: 1. The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings: 1. Drawing DA01 Revision G dated 17.12.2018 2. Drawing DA02 Revision G dated 17.12.2018 3. Drawing DA03 Revision G dated 17.12.2018 4. Drawing DA04 Revision G dated 17.12.2018 5. Drawing DA05 Revision G dated 17.12.2018 6. Drawing DA06 Revision G dated 17.12.2018 7. Drawing DA07 Revision G dated 17.12.2018 8. Drawing DA08 Revision G dated 17.12.2018 9. Drawing DA09 Revision G dated 17.12.2018 10. Drawing DA10 Revision G dated 17.12.2018 1. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $12,500 within 28 days of the Court's Judgment / Order. 2. The appeal is upheld. 3. Development application DA-121/2018, for demolition of Existing Structures and construction of multi dwelling housing with basement car parking under Division 1 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 at premises known as 90-94 Stoddart Street, Roselands is approved subject to the conditions in Annexure A. ………………………. D M Dickson Commissioner of the Court Annexure A (C) Plans (90-94 Stoddart St Roselands - Revison G) ******** 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: 01 February 2019