Fernside Developments Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 1026

Land and Environment Court New South Wales

Medium Neutral Citation: Fernside Developments Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 1026 Hearing dates: Conciliation conference on 5 November 2019 Date of orders: 17 January 2020 Decision date: 17 January 2020 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The Appeal in proceedings no 2019/00150611 is upheld. (2) Development application DA-552/2018 is approved, subject to the conditions in Annexure "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 Category: Principal judgment Parties: Fernside Developments Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: J Garcia (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent)

Solicitors: Lionheart Lawyers Pty Ltd (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/150611 Publication restriction: No

Judgment 1. COMMISSIONER: The applicant, Fernside Developments Pty Ltd, has appealed against the Council's deemed refusal of a development application made pursuant to s 4.12 of the Environmental Planning and Assessment Act 1979 (EPA Act) for demolition and construction of a residential flat building at 2-10 Harp Street, Clemton Park ( the site). 2. The appeal is brought under s 8.7 of the EPA Act. 3. The relevant facts and statutory controls are outlined in the Council's Statement of Facts and Contentions (SOFC). 4. By way of background I note that the site is situated in Zone R4 High Density Residential pursuant to the provisions of Canterbury Local Environmental Plan 2012 (LEP). To the north and east of the site is mixed use development in Clemton Park Village, comprising a shopping village, supermarket, children's play area, community centre, childcare centre, residential apartments and a "Bupa" aged care facility. To the south of the site are single storey detached dwellings with frontages to Alfred Street situated on land in Zone R3 Medium Density Residential under the LEP. 5. To the west of the site are industrial premises situated within Zone IN2 – Light Industrial under the LEP. 6. Together with the adjoining sites at 1- 5 Alfred Street, the site is the subject of a development consent (DA -516/2015) issued by the Court for "demolition of existing structures and construction of two four storey residential flat buildings providing a total of 92 apartments with associated landscaping, basement parking and strata subdivision". 7. On 20 December 2018, the applicant lodged this DA. It was notified and before the Council determined the application the applicant lodged this appeal. 8. In accordance with the Court's usual practice, the Registrar directed that the matter be referred to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) on 5 November 2019. I was the presiding Commissioner. 9. During the conciliation, the applicant sought and was granted leave by the Registrar to rely upon the following amended plans: Drawing No. Drawing Title Rev Dated Prepared by A1001 ROOF SITE PLAN E 9/12/2019 Mackenzie Architects International A1002 BASEMENT TWO PLAN C 14/11/2019 Mackenzie Architects International A1003 BASEMENT ONE PLAN E 9/12/2019 Mackenzie Architects International A1004 STORMWATER TRANSFER PLAN E 9/12/2019 Mackenzie Architects International A1005 GROUND FLOOR PLAN D 9/12/2019 Mackenzie Architects International A1006 FIRST FLOOR PLAN B 10/10/2019 Mackenzie Architects International A1007 SECOND FLOOR PLAN B 10/10/2019 Mackenzie Architects International A1008 THIRD FLOOR PLAN B 10/10/2019 Mackenzie Architects International A2001 EAST + WEST ELEVATIONS C 30/10/2019 Mackenzie Architects International A2002 NORTH + SOUTH ELEVATIONS B 10/10/2019 Mackenzie Architects International A2101 SECTIONS 01 C 30/10/2019 Mackenzie Architects International