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 1 TITLE PAGE C 10/12/2019 CONZEPT 2 LANDSCAPE PLAN G 10/12/2019 CONZEPT 3 HARDSCAPE PLAN G 10/12/2019 CONZEPT 4 DETAIL + SPECIFICATION C 04/11/2019 CONZEPT PS03-E100 DRAINAGE PLAN GROUND FLOOR B 18/11/2019 MARTENS PS03-E110 DRAINAGE PLAN BASEMENT LEVEL 2 B 18/11/2019 MARTENS Drawing No. Rev Dated Prepared by Drawing Title BASIX CERTIFICATE 984781M_03 20/11/2019 BUILDING SUSTAINABILITY ASSESSMENTS SITE REMEDIATION + VALIDATION WORKS LETTER - 7/08/2019 EI AUSTRALIA TRAFFIC LETTER - 10/10/2019 TERRAFFIC PTY LTD 1. The Council now informs me that it is satisfied that the amendments to the plans have addressed all relevant contentions raised by the original application, and that the parties have now reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. 2. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court could have made in the proper exercise of its functions. In this instance, the parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended development application subject to conditions. The parties submit that there are no outstanding jurisdictional prerequisites that must be satisfied before this function can be exercised and I accept this to be the fact based on the documentary evidence filed with the Class 1 application and the amendments to the plans identified in the schedule attached to the s34 agreement. 3. In reaching this agreement, the Court notes that the applicant has agreed to pay the Council's costs thrown away as a result of the amended application pursuant to s 8.15(3) of the EPA Act as agreed, or assessed. 4. Accordingly, as the parties' decision is a decision that the Court could have made in the proper exercise of its functions the appeal is finally disposed of on the following terms. 5. 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". ……………………… S Dixon Senior Commissioner of the Court Annexure A (332 KB) Architecture Plans 2-10 Harp St, Clemton Park (7.09 MB) Landscape Plans 2-10 Harp St, Clemton Park (8.62 MB) Stormwater Plans 2-10 Harp St, Clemton Park (5.33 MB) ********** Amendments 30 January 2020 - Pursuant to UCPR 36.17, by consent of the parties, amend the orders of 17 January 2020 so that the date identified in Drawing No.4 Detail and Specification Rev C prepared by Conzept listed on page 3 of the Conditions of Consent (Annexure A) and at [9] of the judgment, be amended from 14/11/19 to 4/11/19. 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: 30 January 2020