Land and Environment Court New South Wales Medium Neutral Citation: Earlwood Properties Pty Ltd v Canterbury Bankstown Council [2020] NSWLEC 1153 Hearing dates: Conciliation conference on 20 March 2020 Date of orders: 03 April 2020 Decision date: 03 April 2020 Jurisdiction: Class 1 Before: Dickson C Decision: See orders at [8] Catchwords: DEVELOPMENT APPLICATION – Shop top housing – conciliation conference – agreement between the parties – orders Legislation Cited: Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Category: Principal judgment Parties: Earlwood Properties Pty Ltd (Applicant) Canterbury Bankstown Council (Respondent) Representation: Counsel: D Baird (Solicitor) (Applicant) J Coradinni-Bird (Solicitor) (Respondent) Solicitors: Baird Lawyers (Applicant) Marsden Lawyers (Respondent) File Number(s): 2019/27660 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the refusal of its development application DA/533/2018 by Canterbury Bankstown Council. The development application as amended seeks consent for demolition of structures and a three storey shop top housing development comprising nine units, office and business premises. The development is proposed at 2-8 Homer Street and 10 Homer Street Earlwood (Lot 1 DP 721370 and Lot 3 DP 334484). 2. On 11 December 2018, the Applicant lodged a development application with Cumberland Council. On 25 January 2019 the Applicant commenced proceedings against the Council's deemed refusal of the application. 3. In accordance with the Court's usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was held on 16 September 2019. By consent of the parties a further conciliation conference was held on 20 March 2020. Through the conciliation process, the parties have agreed amendments to the proposed development. The agreed orders provide leave to the Applicant to rely on this amended material in their development application. 4. Following the conciliation, 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 parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent. 5. 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. Landowners consent was provided by the owner of the land at the time of the lodgement of the Development Application. 2. Consistent with the requirements of cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I have given consideration to the Preliminary Site Investigation Report prepared by Geotechnical Consultants Australia (Report No. E204-1, dated 10 February 2020). I am satisfied site is suitable, or capable of being made suitable, for the purposes of the proposed development. 3. Consistent with cl. 3 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been submitted with the amended application. 4. Condition 2e) in the parties' proposed conditions of consent which comprise Annexure "A" to the Section 34 Agreement filed on 18 March 2020 requires that the submitted BASIX Certificate (No. 969826M) be updated to satisfy the requirement for the provision of a BASIX Certificate in Schedule 1 of the Regulation. 5. The development is required to comply with the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and the provisions of the Environmental Planning and Assessment Regulation 2000 ('Regulation'). The Applicant has filed a Design Verification Statement: Registered architect number: 20069. 6. The proposed development is for the purpose of "shop top housing" as defined in the Dictionary to Canterbury Local Environmental Plan 2012 ("CLEP 2012"). 7. The land to which the development application relates is situated within Zone B1 Neighbourhood Centre pursuant to the provisions of CLEP 2012. Development for the purpose of "shop top housing" is permissible with consent in accordance with the Land Use Table relating to Zone B1 Neighbourhood Centre in CLEP 2012. 8. The proposed development does not contravene any development standard in CLEP 2012 or any other applicable environmental planning instrument. 9. The site is mapped as being affected by Class 1 and Class 5 acid sulfate soils on the Acid Sulfate Soils Map referred to in clause 6.1(2) of CLEP 2012. The development application (as amended) has been accompanied by an Acid Sulfate Soils Management Plan prepared by Geotechnical Consultants Australia (Report No. E2025-1, dated 3 March 2020) prepared in accordance with the Acid Sulfate Soils Manual which satisfies the requirement in clause 6.1(3) of CLEP 2012. 10. The original application was notified in accordance with the relevant development control plan and the submissions have been considered. 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 granted leave to amend Development Application No. 533/2018 and rely upon the following amended plans and documents: DESCRIPTION AUTHOR SHEET REVISION DATE Demolition Plan Pinnacle Plus DA-02.40 2 09.09.19 Site Analysis Plan Pinnacle Plus DA-03.00 3 17.09.19 Basement Pinnacle Plus DA-04.00 5 17.01.20 Ground Floor Pinnacle Plus DA-04.10 5 17.01.20 First Floor Pinnacle Plus DA-04.20 3 17.09.19 Second Floor Pinnacle Plus DA-04.30 3 17.09.19 Roof Pinnacle Plus DA-04.40 3 17.09.19 Section A Pinnacle Plus DA-05.00 4 16.10.19 Section B Pinnacle Plus DA-05.10 4 16.10.19 West Elevation Pinnacle Plus DA-06.00 3 17.09.19 North Elevation Pinnacle Plus DA-06.10 3 17.09.19 East Elevation Pinnacle Plus DA-06.20 3 17.09.19 South Elevation Pinnacle Plus DA06.30 3 17.09.19 Elevated Finishes Pinnacle Plus DA-08.20 3 17.09.19 Waste Management Plan Pinnacle Plus DA-10.10 5 17.09.19 Sediment Control Plan Pinnacle Plus DA-10.20 3 17.09.19 Stormwater Drainage Plan for proposed Development at No.2-10 Homer St, Basement Pavel Kozarovski C-3379-01 3 3/12/18 Stormwater Drainage Plan for proposed Development at No.2-10 Homer St, Ground Floor Pavel Kozarovski C-3379-01 3 3/12/18 Landscape Site Plan Melissa Wilson LS01 A 05.12.18 Landscape Plan Ground Floor Melissa Wilson LS02 A 05.12.18 Preliminary Site Investigation Geotechnical Consultants Australia E201-1 10 February 2020 Preliminary Acid Sulphate Soils Investigation Report Geotechnical Consultants Australia G19280-1 A 18 February 2020 Acid Sulphate Soils Management Plan Geotechnical Consultants Australia E2025-1 3 March 2020 1. The Applicant is to pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $8,000 within 28 days of this order being made. 2. The appeal is upheld. 3. Development Application No. 533/2018 for demolition of existing structures and construction of a three storey shop top housing development containing four office and two business premises, six two bedroom apartments, three one bedroom apartments and basement parking for seventeen cars (nine residential, five commercial and two visitor spaces) on the land at 2-8 Homer Street and 10 Homer Street Earlwood is approved subject to the conditions of consent in Annexure "A". ………………………… D M Dickson Commissioner of the Court Annexure A (126 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: 06 April 2020