Chrysoglou v Canterbury Bankstown Council [2022] NSWLEC 1655

Chrysoglou v Canterbury Bankstown Council [2022] NSWLEC 1655

The Court upheld the appeal and granted development consent because the parties reached agreement on amended plans and conditions, and the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions. That satisfaction was based on matters including owner consent, public exhibition and consideration of submissions, BASIX compliance, permissibility of a dwelling house in the R2 Low Density Residential zone, satisfaction of the cl 4.6 requirements for the minimum lot size variation, and satisfaction that earthworks matters under cl 6.2 did not warrant refusal.

Jurisdiction
Australia
Judgment Date
29 November 2022
Procedural Posture
Class 1 Appeal Against Refusal of Development Application Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Orders Made Following Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application' 'dwelling House' 'basement Carparking' 'swimming Pool' 'minimum Lot Size Variation' 'clause 4.6 Written Request' 'earthworks' 'basix' 'conciliation Agreement']
['planning and Environment Law' 'development Consent'] ['development Application' 'dwelling House' 'basement Carparking' 'swimming Pool' 'minimum Lot Size Variation' 'clause 4.6 Written Request' 'earthworks' 'basix' 'conciliation Agreement']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Orders Made Following Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether development consent should be granted for demolition of existing structures and construction of a two-storey dwelling with one level of basement and installation of a pool at 81A Bayview Avenue, Earlwood.' "Whether the Court could make orders in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the written request under cl 4.6 of Canterbury Local Environmental Plan 2015 justified non-compliance with the minimum subdivision lot size standard in cl 4.1A.' 'Whether earthworks matters under cl 6.2 of Canterbury Local Environmental Plan 2015 warranted refusal of the application.']

Ratio Decidendi

The Court upheld the appeal and granted development consent because the parties reached agreement on amended plans and conditions, and the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions. That satisfaction was based on matters including owner consent, public exhibition and consideration of submissions, BASIX compliance, permissibility of a dwelling house in the R2 Low Density Residential zone, satisfaction of the cl 4.6 requirements for the minimum lot size variation, and satisfaction that earthworks matters under cl 6.2 did not warrant refusal.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to Development Application DA757/2021 (as amended) for the demolition of existing structures and construction of a two-storey dwelling with one level of basement and installation of a pool at 81A Bayview Avenue, Earlwood subject to the conditions at Annexure A.']