Campsie Ninth Avenue Development Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1625

Land and Environment Court New South Wales

Medium Neutral Citation: Campsie Ninth Avenue Development Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1625 Hearing dates: Conciliation conference on 24 June 2021 Date of orders: 20 October 2021 Decision date: 20 October 2021 Jurisdiction: Class 1 Before: Gray C Decision: The Court Orders that: (1) The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $3,000.00 within 28 days of the date of this Order in full and final satisfaction of all the cost orders made in these proceedings. (2) The appeal is upheld. (3) Development consent is granted to Development Application No DA 1109/2019 for the demolition of existing dwelling and construction of a six (6) storey mixed development comprising 16 room boarding house (including one manager's room), and one commercial premises on ground floor above two (2) levels of basement car parking on the land known as Lot 1 in DP 326935, 26 Ninth Avenue, Campsie NSW, subject to the conditions of consent contained at Annexure "A". Catchwords: APPEAL – development application – mixed use development – conciliation conference – agreement reached Legislation Cited: Canterbury Local Environmental Plan 2012 cll 4.3, 4.4 Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000 cl 55, Sch 1 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 29, 30, 30A State Environmental Planning Policy No 55—Remediation of Land cl 7 Category: Principal judgment Parties: Campsie Ninth Avenue Development Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: M Parrino (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent)

Solicitors: Project Lawyers (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2021/108337 Publication restriction: No

Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of an existing dwelling and the construction of a six-storey mixed use development comprising a 16 room boarding house and a ground floor commercial premises, with basement car parking, at 26 Ninth Avenue, Campsie. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 24 June 2021, and continued by Online Court on 19 July, 2 August, 11 August, 31 August, 8 September and 16 September 2021. I presided over the conciliation conference. 3. At the conciliation conference, 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 was acceptable to the parties. The agreement was subsequently filed on 11 October 2021, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The agreement supersedes an earlier signed agreement filed on 7 October 2021, and is supported by an agreed statement of jurisdictional prerequisites which was provided by email to the Court on 7 October 2021. 4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application seeks consent for the construction of a six-storey mixed use development comprising one ground floor commercial/shop premises, and a 16 room boarding house (including managers room), together with two levels of basement car parking. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The proposed development is for the purpose of both a "boarding house" and a "commercial premises", which are both permissible with consent within the B2 Local Centre zone in which the site is located, pursuant to the provisions of the Canterbury Local Environmental Plan 2012 ("CLEP"). * The proposed development complies with the applicable development standards under the CLEP, including the maximum height development standard pursuant to cl 4.3 and the maximum floor space development standard pursuant to cl 4.4. * The provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 ("SEPP ARH") apply to the development. At cl 30, consent cannot be granted unless certain requirements are met. Based on the architectural plans, I am satisfied that each of the matters in cl 30(1) of the SEPP ARH are met by the proposed development. * Clause 30A of the SEPP ARH requires consideration of "whether the design of the development is compatible with the character of the local area". The site is located within a Local Centre zone with R4 High Density residential zones to the west of the site and to the north across Ninth Avenue. The parties agree, and I accept, that the design of the development is compatible with the character of the local area in circumstances where it is consistent with the planned character for the area, which contemplates multi-storey built forms of up to 21m in height, and it also incorporates recessed and modulated facades in order to reduce the perceived bulk and scale of the building and ensure it remains complimentary with the existing built form in the streetscape (some of which is yet to be developed to take advantage of the planning intent expressed in the current controls). * The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. As the site has been historically used as residential accommodation and there is no evidence of potentially contaminating activities occurring on site, there is no need to carry out a preliminary site investigation and the site is unlikely to be contaminated. 1. I note also that cl 29 of the SEPP ARH sets out a number of grounds on which consent cannot be refused if certain criteria are met. The proposed development meets the criteria for floor space ratio ("FSR"), building height, landscape area, solar access, private open space, parking and accommodation size. Accordingly, consent cannot be refused on any of those grounds. 2. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 3. In making the orders to give effect to the agreement between the parties, 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. 4. The Court Notes: 1. The Applicant has amended the application with the consent of Canterbury Bankstown Council. 2. The following amended application was uploaded to the NSW Planning portal on 24 September 2021 comprising the following amended plans otherwise referred to in Condition 2 of Annexure "A". Drawing No. Drawing Title Issue Dated Prepared by 102 Site Plans H 07/07/2021 Katris Architects Pty Ltd 103 Basement 1 & 2 H 07/07/2021 Katris Architects Pty Ltd 103A Basement 3 H 07/07/2021 Katris Architects Pty Ltd 104 Ground Level/Site Plan & Level 1 H 07/07/2021 Katris Architects Pty Ltd 105 Level 2 & Level 3 H 07/07/2021 Katris Architects Pty Ltd 106 Level 4 & Level 5 H 07/07/2021 Katris Architects Pty Ltd 107 Roof Plan H 07/07/2021 Katris Architects Pty Ltd 108 Elevations H 07/07/2021 Katris Architects Pty Ltd 108B Elevation 2 H 07/07/2021 Katris Architects Pty Ltd 109 Streetscape Elevation H 07/07/2021 Katris Architects Pty Ltd 110 Sections AA, BB & CC H 07/07/2021 Katris Architects Pty Ltd 110B Sections DD & EE H 07/07/2021 Katris Architects Pty Ltd 110C Section FF H 07/07/2021 Katris Architects Pty Ltd 110D Section GG H 07/07/2021 Katris Architects Pty Ltd 110E Sections DD & HH H 07/07/2021 Katris Architects Pty Ltd 111 Material & Finishes Schedule H 07/07/2021 Katris Architects Pty Ltd

1. That the Applicant subsequently filed the amended application with the Court on 6 October 2021. 1. The Court Orders that: 1. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $3,000.00 within 28 days of the date of this Order in full and final satisfaction of all the cost orders made in these proceedings. 2. The appeal is upheld. 3. Development consent is granted to Development Application No DA 1109/2019 for the demolition of existing dwelling and construction of a six (6) storey mixed development comprising 16 room boarding house (including one manager's room), and one commercial premises on ground floor above two (2) levels of basement car parking on the land known as Lot 1 in DP 326935, 26 Ninth Avenue, Campsie NSW, subject to the conditions of consent contained at Annexure "A".

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J Gray

Commissioner of the Court Annexure A (267467, pdf)

********** 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: 20 October 2021