Atom Australia Pty Ltd v City of Canterbury-Bankstown [2019] NSWLEC 1603 (5 December 2019)

New South Wales Land and Environment Court

[Index] [Search] [Download] [Help]

---

Atom Australia Pty Ltd v City of Canterbury-Bankstown [2019] NSWLEC 1603 (5 December 2019)

Last Updated: 13 December 2019

Land and Environment Court New South Wales

Case Name:	Atom Australia Pty Ltd v City of Canterbury-Bankstown
Medium Neutral Citation:	[2019] NSWLEC 1603
Hearing Date(s):	Conciliation conference on 5 November 2019
Date of Orders:	5 December 2019
Decision Date:	5 December 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) The Applicant is granted leave to rely on the amended plans copies of which are marked Annexure "A" for the purpose of the development application. (2) The Applicant is to pay the Respondent's costs thrown away under s8 15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $5,500.00 forthwith. (3) The appeal is upheld. (4) Development Application no. 968/2018 for the demolition of all existing buildings and ancillary structures, construction of a new boarding house, comprising one (1) basement level containing car parking (21 spaces), and 3 levels (containing 41 rooms) at 2-4 Petty Avenue, Yagoona, is approved subject to the conditions in Annexure "B".
Catchwords:	DEVELOPMENT APPLICATION – boarding house – character and streetscape – lot isolation – FSR – conciliation conference – agreement between the parties – orders
Legislation Cited:	Bankstown Development Control Plan 2014
Category:	Principal judgment
Parties:	Atom Australia Pty Ltd (Applicant) City of Canterbury-Bankstown (Respondent)
Representation:	Counsel: J Cole (Solicitor) (Applicant) J Strati (Solicitor) (Respondent) Solicitors: HWL Ebsworth Lawyers(Applicant) City of Canterbury-Bankstown (Respondent)
File Number(s):	2019/149433
Publication Restriction:	No

JUDGMENT

1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) 968/2018 by Canterbury-Bankstown Council (hereafter the Council) for the demolition of existing structures, and construction of a three storey, 41 room boarding house with basement parking on Lots 20 and 21 DP 19178, also known as 2-4 Petty Avenue, Yagoona (hereafter the site).
2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 November 2019. I presided over the conciliation conference, which started onsite. There were two objectors heard at the conciliation on issues that related to: privacy; drainage; character; setbacks; parking and traffic; and resident security.
4. Following the conciliation conference, the applicant sought to amend the associated plans to the DA and provide relevant supporting documents, including a Plan of Management. Based on these amended plans, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision of the parties is to uphold the appeal and grant consent to DA 968/2018 with conditions.
5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function of assessment under s 4.15 of the EPA Act and being satisfied, pursuant to s 4.16(1)(a) to grant consent to DA 968/2018 with amended plans in Annexure A and conditions, as described in Annexure B.
6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, in consideration of s 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); and Bankstown Local Environmental Plan 2014 (BLEP). In addition, the Bankstown Development Control Plan 2014 (BDCP) is of consideration to grant consent to the DA.
7. The requirements of the SEPP ARH, specifically cll 29(1)(c)(i), 29(2)(b) and 30A as contended, have been considered by the parties and they are satisfied, based on the amended plans and documents supporting the DA. The numeric requirements for landscaping and floor space ratio (FSR) have been addressed and are satisfied in the amended plans. The proposed development is considered to be in character with the local area, which the parties agree is under a period of transition.
8. The proposed development is required to comply with the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. A BASIX Certificate No. 1007856M, dated 15 April 2019, is identified in the conditions of consent.
9. The parties agree that the relevant provisions of the BLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The site is located within the R4 high density residential zone. The proposed development is permissible in the zone and is not inconsistent with the zone objectives. Based on the amended plans, the proposed development satisfies the requirements of BLEP, including FSR as described in cl 4.4.
10. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as described in the BDCP are achieved to the satisfaction of the parties. The parties agree that the requirements of the BDCP are complied with, based on the amended plans and conditions of consent. The parties also agree that the adjoining lands to the site are not considered isolated for the purposes of future development.
11. The proposed development was required to be publicly notified, pursuant to the BDCP, and the parties agree that the issues raised by the residents have been resolved to their satisfaction.
12. Based on the amended plans and supporting documents to the DA, the contentions as expressed in the Statement of Facts and Contentions are resolved to the satisfaction of the parties.
13. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 968/2018 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.
14. 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.
15. The Court orders:
    • (1) The Applicant is granted leave to rely on the amended plans copies of which are marked Annexure "A" for the purpose of the development application.
    • (2) The Applicant is to pay the Respondent's costs thrown away under s8 15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $5,500.00 forthwith.
    • (3) The appeal is upheld.
    • (4) Development application no 968/2018 for the demolition of all existing buildings and ancillary structures, construction of a new boarding house, comprising one (1) basement level containing car parking (21 spaces), and 3 levels (containing 41 rooms) at 2-4 Petty Avenue, Yagoona, is approved subject to the conditions in Annexure "B".

..............................

S Bish

Commissioner of the Court

Annexure A (13.7 MB, pdf)

Annexure B (210 KB, pdf)

**********