Land and Environment Court New South Wales Medium Neutral Citation: Close Street Developments Pty Limited v Canterbury-Bankstown Council [2019] NSWLEC 1491 Hearing dates: Conciliation conference on 4 October 2019 Date of orders: 15 October 2019 Decision date: 15 October 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: See orders at [10] below Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Canterbury Local Environment Plan 2012 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Texts Cited: Canterbury Development Control Plan 2012 Category: Principal judgment Parties: Close Street Developments Pty Limited (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: P Bean (Solicitor) (Applicant) A Kleiss (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/122550 Publication restriction: No Judgment 1. COMMISSIONER: Close Street Developments Pty Limited (the Applicant) has appealed the deemed refusal by Canterbury Bankstown Council (the Respondent) of its application to modify development consent DA-339/2013, for the demolition of existing structures and construction of a part six storey, part seven storey shop top housing development over basement car parking (the proposed development) at 6-8 Close Street, Canterbury (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court's jurisdiction. These proceedings are determined pursuant to the provisions of s 4.55(2) of the of the EP&A Act. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which has been held on 4 October 2019, and I have presided over the conciliation conference. 4. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant's development application, subject to conditions. 5. 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. The Parties' decision involves the Court exercising the function under s 4.16 of the EP&A Act to grant consent to the development application. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties identified the following jurisdictional prerequisites of relevance in these proceedings, together with their views on how these had been satisfied, as follows: 1. the development consent that the Applicant now seeks to modify, and which was issued in 2014, has physically commenced; 2. the proposed development is substantially the same development as the development for which consent was originally granted; 3. there are no conditions sought to be imposed as a requirement of a concurrence to the consent nor are there any general terms of an approval proposed to imposed as conditions of consent as part of the approval of the Applicant's modification application; 4. the proposed development has been notified in accordance with the provisions of Canterbury Development Control Plan 2012, and no submissions were received in response to that notification; 5. the proposed development is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000; 6. the proposed development is consistent with the provisions of State Environmental Planning Policy No 55 – Remediation of Land, and State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development; 7. the parties confirmed that the minor exceedance of the height development standard in cl 4.3 of Canterbury Local Environment Plan 2012 (CLEP) to proposed by the Applicant, and required to accommodate a lift overrun, was acceptable to them under a merits assessment. Further, the Parties advised that under the provisions of s 4.55(4) of the EP&A Act, as the modification of development consent DA-339/2013 is taken not to be the granting of development consent, further consideration of the provision of cl 4.6 of CLEP is not required. 1. Having considered the advice of the Parties, provided above at [6], I agree that the jurisdictional prerequisites in relation to which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 2. I am further 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, for reasons provided at [6] and [7]. 3. 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. 4. The Court orders that: 1. The Applicant is granted leave to amend Modification Application No. DA-339/2013/A pursuant to Section 4.55(2) of the EP&A Act and rely upon the following amended plans and documentation: DRAWING NO. DOCUMENT NAME ISSUE DATED PREPARED BY 001 Photomontage P 26/08/19 Environa Studio 101 B1 Car Park Plan 1:200 R 26/08/19 Environa Studio 102 Ground Floor Plan 1:200 R 26/08/19 Environa Studio 103 1st Floor Plan 1:200 Q 26/08/19 Environa Studio 104 2nd Floor Plan 1:200 Q 26/08/19 Environa Studio 105 3rd Floor Plan 1:200 Q 26/08/19 Environa Studio 106 4th Floor Plan 1:200 Q 26/08/19 Environa Studio 107 5th Floor Plan 1:200 Q 26/08/19 Environa Studio 108 6th Floor Plan 1:200 Q 26/08/19 Environa Studio 110 Roof Plan 1:200 P 26/08/19 Environa Studio 120 Section AA 1:200 P 26/08/19 Environa Studio 121 Section BB 1:200 Q 26/08/19 Environa Studio 122 Section CC 1:200 Q 26/08/19 Environa Studio 130 South East Elevation 1:200 Q 26/08/19 Environa Studio 131 South West Elevation 1:200 Q 26/08/19 Environa Studio 132 North West Elevation 1:200 Q 26/08/19 Environa Studio 133 North East Elevation 1:200 Q 26/08/19 Environa Studio 210 Colours and Finishes Schedule O 15/02/19 Environa Studio 901 Perspectives Sheet 1 P 26/08/19 Environa Studio 902 Perspectives Sheet 2 P 26/08/19 Environa Studio 905 Height Plane Diagram Sheet 1 Q 26/08/19 Environa Studio 906 Height Plane Diagram Sheet 2 Q 26/08/19 Environa Studio 911 Solar Access Study – P.O.S. P 26/08/19 Environa Studio 912 Solar Access Study – Living Room Windows P 26/08/19 Environa Studio 920 Solar Impact Study – June 21 R 26/08/19 Environa Studio 950 Pre + Post Adaptation Plan Q 26/08/19 Environa Studio SW100 Cover Sheet C 26/08/19 SGC Engineering Value SW200 Stormwater Concept Design – Basement Plan C 26/08/19 SGC Engineering Value SW201 Stormwater Concept Design – Ground Floor Plan C 26/08/19 SGC Engineering Value SW300 Stormwater Concept Design – Details Sheet C 26/08/19 SGC Engineering Value SW400 Erosion and Sediment Control – Plan and Details C 26/08/19 SGC Engineering Value PTC-001 Access & Parking Assessment Basement 1 – Spaces 22, 23 & 24 3 26/08/19 Parking & Traffic Consultants Pty Ltd PTC-002 Access & Parking Assessment 3 26/08/19 Parking & Traffic Consultants Pty Ltd Basement 1 – Space 1 Ground Floor – Space 4 PTC-003 Access & Parking Assessment Ground Floor – Access & Egress 3 26/08/19 Parking & Traffic Consultants Pty Ltd DOCUMENT DATED PREPARED BY BASIX Certificate No. 907879M_02 06/09/19 Traffic Assessment 26/08/19 Parking & Traffic Consultants Pty Ltd 1. The appeal is upheld. 2. Modification Application No. DA-339/2013/A (as amended) for internal alterations and additions including the provision of 10 additional units, 9 additional car parking spaces and 8 additional motorcycle parking spaces, and the reconfiguration of the approved ground floor retail premises is approved. 3. Development Consent No. DA-339/2013, originally granted by the Respondent on 14 August 2014, for the demolition of existing structures and construction of a part 6, part 7 storey shop top housing development containing 1 ground floor retail space and 30 residential units above over basement car parking containing 30 car parking spaces on the land at 6-8 Close Street, Canterbury is modified pursuant to Section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in Annexure "A". 4. As a consequence of Order (4), Development Consent No. DA-339/2013 (as modified) is subject to the consolidated, modified conditions of consent set out in Annexure "B". ……………………………. M Chilcott, Commissioner of the Court Annexure A (154 KB) Annexure B (187 KB) ********** 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: 16 October 2019