Land and Environment Court New South Wales Medium Neutral Citation: Elray Property Group Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1344 Hearing dates: Conciliation conference on 19 July 2019 Date of orders: 23 July 2019 Decision date: 23 July 2019 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) The Applicant is granted leave to amend Development Application DA-870/2018 and to rely upon the amended plans and documents listed in Condition 2 of Annexure "A" hereto. (2) The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3) The clause 4.6 variation request prepared by Tranplan Consulting and dated July 2019 is upheld and the width of 14.63 metres found to be satisfactory. (4) The appeal is upheld. (5) Development Application DA-870/2018 seeking consent for the demolition of existing structures, construction of an attached dual occupancy and Torrens title subdivision at the property at Lot 9 DP11727, also known as No. 16 Mary Street, Regents Park NSW 2143 is granted subject to the conditions of consent annexed hereto and marked "A". Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Category: Principal judgment Parties: Elray Property Group Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Solicitors: S Hale, Madison Marcus (Applicant) C Montague, Hall & Wilcox (Respondent) File Number(s): 2019/51537 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Canterbury-Bankstown Council's refusal of development application 870/2018 ('DA'). 2. The DA which is the subject of these proceedings is for demolition of existing structures, construction of an attached dual occupancy and Torrens Title subdivision of the property. The land to which the development application relates is 16 Mary Street, Regents Park. Conciliation and agreement between the parties 1. The Court arranged a conciliation conference between the parties under s 34AA of the Land and Environment Court Act 1979 (LEC Act), which was held on 19 July 2019. I presided. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, including certain amendments to the original proposal. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 2. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 3. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties indicated the only jurisdictional matter which was outstanding was in regard to the proposal's non-compliance with a development standard and I am satisfied that this is the case. 4. Clause 4.1A of Canterbury Local Environmental Plan 2012 (LEP) which applies to the site provides for a minimum lot width of 15m at the front building line for dual occupancies in the R2 Low Density Residential zone, which this site falls within. The relevant provisions are reproduced below: 4.1A Minimum lot sizes and special provisions for dual occupancies (1) The objectives of this clause are as follows: (a) to ensure that lot sizes are sufficient to accommodate development that is consistent with the objectives and planning provisions for dual occupancies, (b) to minimise any likely adverse impact of development on the amenity of the area. (2) Development consent must not be granted to development for the following purposes: (a) a dual occupancy (attached) on a lot in Zone R2 Low Density Residential unless the lot has an area of at least 500 square metres and is at least 15 metres wide at the front building line, … 1. In the case of the subject proposal, the minimum width at the front building line is 14.63m according to the parties. Therefore a contravention of the 15m development standard would occur. 2. The applicant seeks a variation to this development standard and has lodged a written request pursuant to cl 4.6 of the LEP, prepared by Tranplan Consultants and dated July 2019. I have read the written request and I am satisfied that it has adequately addressed the matters required to be demonstrated under the relevant provisions of cl 4.6(4)(a)(i) (using the findings established in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 for decision framing purposes) for the following reasons. * The written request has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. This has occurred through demonstrating that compliance with the objectives of the standard has been achieved. Specifically, it was shown that there was sufficient space available for the dual occupancy development (noting the relatively small discrepancy) and that the proposed historical use change (from industrial) brought potential for a more positive amenity outcome in the area. * The written request has also adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard. This is through its indication that the dual occupancy development would be a catalyst for the change from the historical industrial use in this residential zone. 1. In regard to cl 4.6(4)(a)(ii) of the LEP, I am also directly satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. I rely on the written submission in regard to the consistency with the objectives of the development standard (see above). In regard to the R2 zone objectives I again note the proposal as a particular means of meeting housing needs. 2. Finally in regard to cl 4.6(4)(b) of the LEP, it is my view that that matter does not raise any matters of State or regional significance in planning terms, and as such this provision does not concern me in regard to this proposal. 3. I also note that consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. The conditions of consent refer to the need for the site to be remediated in accordance with a Remediation Action Plan (Condition 19). 4. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 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. In coming to this decision, I have not, nor have I been required to, come to a position on the merits of the proposal. 5. The Court orders: 1. The Applicant is granted leave to amend Development Application DA-870/2018 and to rely upon the amended plans and documents listed in Condition 2 of Annexure "A" hereto. 2. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The clause 4.6 variation request prepared by Tranplan Consulting and dated July 2019 is upheld and the width of 14.63 metres found to be satisfactory. 4. The appeal is upheld. 5. Development Application DA-870/2018 seeking consent for the demolition of existing structures, construction of an attached dual occupancy and Torrens title subdivision at the property at Lot 9 DP11727, also known as No. 16 Mary Street, Regents Park NSW 2143 is granted subject to the conditions of consent annexed hereto and marked "A". ………………………… P Walsh Commissioner of the Court Annexure A (92.9 KB, 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: 23 July 2019