Ace Chester Hill Pty Ltd v Canterbury-Bankstown Council

Land and Environment Court (NSW)|2024-09-27

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No DA-52/2022 (DA) by Canterbury-Bankstown Council (Council).
The DA, as amended, seeks consent for demolition of the existing structures and construction of a residential flat building and associated development at 30-32 Wellington Road, Chester Hill (site).

Conciliation and agreement between the parties

The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 27 September 2024. Prior to the conference, the parties had come to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the DA, as amended in the course of conciliation, in accordance with agreed conditions.

Bankstown Local Environmental Plan 2015

The parties advise that Canterbury Bankstown Local Environmental Plan 2023 came into force on 23 June 2023. As the DA was lodged with the Respondent on 14 February 2022, cl 1.8A provides a savings and transitional provision that requires the DA to be assessed against Bankstown Local Environmental Plan 2015 (BLEP). I note the following advice from the parties with respect to relevant BLEP provisions: 1. Clause 2.1 (Land Zones) - the site is zoned R4 - High Density Residential. The proposed development is defined as 'residential flat building' which is permissible with consent in the R4 zone. 2. Clause 2.3 (Zone Objectives and Land Use Table) - The parties agree that the proposed development is consistent with the objectives for development within the respective zones in which the development is proposed to be carried out. 3. Clause 2.7 (Demolition) - The DA seeks consent for demolition of the existing structures on the site which is permissible with consent under cl 2.7. 4. Clause 4.3 (Height of Buildings) - the maximum building height permitted for the site is 13 metres. The highest point of the proposed development is 14.325 metres, being an exceedance of the BLEP control of 1.325 metres (approximately 10%). Clause 4.6 provides a pathway for the grant of consent notwithstanding the contravention, provided certain pre-requisites are met. In this regard, I can find that: 1. The written request from the applicant adequately establishes sufficient environmental planning grounds to justify the breach in the development standard by indicating the main focus of the breach is the lift overrun (located away from the building edge) and demonstrating the minimal impacts of the breach (in regard to such matters as overshadowing and visual impact). 2. The written request also adequately addresses the requirement to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. It does this by working through the objectives of cl 4.3, and demonstrating that relevant objectives are met. The essence of it is captured with the adequate demonstration of the height of the proposal's compatibility with the character, amenity and landform of the relevant locality. 3. The written request also seeks to demonstrate the proposal's consistency with the objectives of the R4 - High Density Residential zone. For me these arguments were convincing. On the basis of these arguments and the written requests arguments relating to the proposal's consistency with the objectives of cl 4.3, I can find that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. 4. The relevant requirements of cl 4.6 have been satisfied and in this instance, the facilitative provisions of this clause are available. 1. The parties advise that the proposal does not breach any other development standard under BLEP. 2. Clause 5.21 (Flood Planning) - the site is identified as a medium flood risk precinct and thus the provisions of cl 5.21 apply. Clause 5.21 nominates certain matters requiring consideration and other matters with respect to which a consent authority must be satisfied. The applicant has provided an Amended Flood Impact Assessment Report prepared by Civil and Stormwater Engineers dated 30 July 2024 (Flood Impact Assessment) and included at Tab 11 of the applicant's Section 34 Agreement Bundle received on 20 September 2024 (Section 34 Agreement Bundle) in support of the DA, as amended, which directly addresses these requirements. In turn I accept that the parties have given consideration to the matters at of cl 5.21(3). In regard to cl 5.21(2), based on the advice in the Flood Impact Assessment, I am satisfied that the proposed development: 1. is compatible with the flood function and behaviour on the land as there is no noticeable change in flood behaviour on the site as a result of the development (the parties give preference to section 7.2 of the Flood Impact Assessment); 2. does not adversely affect the flood levels of neighbouring properties as the stormwater measures will assist in reducing the flood levels of downstream properties (the parties give preference to section 7.2.1 of the Flood Impact Assessment Report); 3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood as there is unlikely to be an increase in the flood levels of surrounding downstream properties (the parties give preference to section 7.2.1 of the Flood Impact Assessment Report); 4. incorporates appropriate measures to manage risk to life in the event of a flood through a safe evacuation route and minimal on site inundation level (the parties give preference to section 7 of the Flood Impact Assessment Report); and 5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses through the provision of an On Site Detention Tank and the proper management and filtration of stormwater flows into existing council stormwater infrastructure (the parties give preference to Amended Stormwater Plans prepared by Civil and Stormwater Engineers at Tab 5 of the Section 34 Agreement Bundle) 1. Clause 6.2 (Earthworks) - noting the proposed development seeks consent for earthworks, the parties advise consideration has been given to the matters at cl 6.2(3).

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

Pursuant to s 4.6, a consent authority must be satisfied that appropriate consideration has been given to whether the land is contaminated, the suitability of the land to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so.
The parties advise that the site is not listed on the NSW EPA's list of notified sites, nor is it in the vicinity of any such sites. The site has had a long standing rural and or residential use with no known records of contaminating activity being conducted on the site (the parties refer to page 24 of the Statement of Environmental Effects prepared by BMA Urban at Tab 3 of the Class 1 Application filed on 22 December 2023). On this advice I am satisfied that contamination has been adequately considered and the requirements of s 4.6 have been met.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP) and related matters

In their jurisdictional statement, the parties advise that the DA was lodged on 14 February 2022 when the provisions of State Environmental Planning Policy No 65-Design Quality of Residential Apartment Development 2002 ("SEPP 65") would apply. On 14 December 2023, SEPP 65 was repealed. New provisions relating to the design of residential apartment development have been enacted in Chapter 4 of the Housing SEPP. The Housing SEPP contains saving and transitional provisions at Schedule 7A, clause (2A) that requires that Chapter 4, as inserted by the amending policy, applies to the proposed residential flat building development. In this respect I note that:
Pursuant to s 145(2) of the Housing SEPP, the development was referred to the Canterbury-Bankstown Design Review Panel on 7 August 2023 for advice.
In accordance with s 147 of the Housing SEPP, the consent authority has considered: 1. the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9 of SEPP Housing (the applicant has assisted by providing an updated statement addressing the design quality of the development in accordance with the design quality principles - the parties refer to Tab 5 of the Section 34 Agreement Bundle in that respect). 2. the Apartment Design Guide (the applicant has assisted by providing an updated statement addressing the consistency with the Apartment Design Guide - the parties again refer to Tab 5 of the Section 34 Agreement Bundle in that respect). 3. the advice received from the Canterbury-Bankstown Design Review Panel.
Further, the parties advise that cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) requires, if a development application that relates to residential apartment development is made on or after the commencement of the Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015, that the application must be accompanied by a statement by a qualified designer. Clause 50(1AB) of the EPA Regulation 2000 further provides that the statement by the qualified designer must, among other things, provide an explanation that verifies how the development addresses how the design quality principles are achieved and demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved. I accept that the required statement has been received as indicated above.
I accept the advice of the parties that the proper procedural requirements and evaluative considerations of the Housing SEPP and related matters have been undertaken in coming to their agreed decision.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP)

The parties advise that the rear boundary of the site is located within the vicinity of a railway track and excavation works within 25m of the railway corridor to a depth of at least 2m are proposed. In such instances, pursuant to cl 2.99(2)(a), the consent authority must refer the development to the rail authority. In addition under cl 2.99(3), the consent authority must not grant consent to development to which this section applies without the concurrence of the rail authority for the rail corridor to which the development application relates.
The parties advise that the required notification has been undertaken. The application has been reviewed by Sydney Trains who have provided concurrence subject to the imposition of conditions to be satisfied prior to works commencing and during the construction process. Pursuant to clause 2.99(2)(b)(i), and on this advice of the parties, I am be satisfied that the rail authority's response to the notification of the development has been taken into consideration in the preparation of this agreement, including by way of inclusion of relevant conditions.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

The parties have advised that the required notification was undertaken and no objecting submissions in relation to the proposal were received.

Conclusion

With the above findings, I am satisfied that jurisdictional prerequisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. Subsection 34(3)(b) of The LEC Act also requires me to "set out in writing the terms of the decision". The final orders have this effect.

Notations

With respect to the amendments of the DA, the Court notes that: 1. Canterbury-Bankstown Council, as the relevant consent authority, has approved, under clause 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application DA-52/2022 to rely upon the documents as follows: No. Drawing No / Rev Drawing Title Prepared By Date Architectural Plans

               A000/E                                                                                                Cover Page/Apartment Schedule                          Doroch Architects                                30/08/2024

               A010/E                                                                                                Site Plan                                              Doroch Architects                                30/08/2024

               A098/E                                                                                                Basement 2 Floor Plan                                  Doroch Architects                                30/08/2024

               A099/E                                                                                                Basement 1 Floor Plan                                  Doroch Architects                                30/08/2024

               A100/E                                                                                                Ground Floor Plan                                      Doroch Architects                                30/08/2024

               A101/E                                                                                                Level 1 Floor Plan                                     Doroch Architects                                30/08/2024

               A112/E                                                                                                Level 2 Floor Plan                                     Doroch Architects                                30/08/2024

               A113/E                                                                                                Level 3 Floor Plan                                     Doroch Architects                                30/08/2024

               A121/E                                                                                                Roof Plan                                              Doroch Architects                                30/08/2024

              A141/E                                                                                                South & West                                           Doroch Architects                                30/08/2024

              A142/E                                                                                                North & East                                           Doroch Architects                                30/08/2024

              A151/E                                                                                                Sections                                               Doroch Architects                                30/08/2024

              A161/E                                                                                                GFA Plans                                              Doroch Architects                                30/08/2024

              A201/E                                                                                                Shadow Diagrams June 21                                Doroch Architects                                30/08/2024

              A261/E                                                                                                Height Plane Diagram                                   Doroch Architects                                30/08/2024

              A281/E                                                                                                External Perspectives                                  Doroch Architects                                30/08/2024

Stormwater Plans 17. 000/E Cover sheet Plan Civil & Stormwater Engineering Services Pty Ltd 30/08/2024 18. 101/K Stormwater concept Plan Basement Level 2 Sheet 1 of 2 Civil & Stormwater Engineering Services Pty Ltd 30/08/2024 19. 102/G Stormwater Concept Plan Basement Level 2 Sheet 2 of 2 Civil & Stormwater Engineering Services Pty Ltd 30/08/2024 20. 102.1/F Stormwater Concept Plan Basement Level 1 Civil & Stormwater Engineering Services Pty Ltd 30/08/2024 21. 103/O Stormwater Concept Plan Ground Level Civil & Stormwater Engineering Services Pty Ltd 12/09/2024 22. 103.1/G Longitudinal Section & External Drainage Plan Civil & Stormwater Engineering Services Pty Ltd 30/08/2024 23. 103.2/B Sections Details Civil & Stormwater Engineering Services Pty Ltd 30/08/2024 24. 104/J On-site Detention Details and Calculation Sheet Civil & Stormwater Engineering Services Pty Ltd 12/09/2024 25. 104.1/G OSD Catchment Plan Civil & Stormwater Engineering Services Pty Ltd 30/08/2024 26. 105/C Sediment & Erosion Control Plan & Details Civil & Stormwater Engineering Services Pty Ltd 30/08/2024 27. 106/G Miscellaneous Details Sheet Civil & Stormwater Engineering Services Pty Ltd 30/08/2024 Landscape Plan 28. EBLA-LD-GA01/F General Arrangement Plan EBLA Studio 12/09/2024 29. EBLA-LD-PP-01/F Planting Plan EBLA Studio 12/09/2024 30. EBLA-LD-CS-01/F Cross Section 1-4 Western Boundary EBLA Studio 12/09/2024 31. EBLA-LD-CS-02/F Cross Section 5-7 Frontage and Eastern Boundary EBLA Studio 12/09/2024 32. EBLA-LD-DE01/D Hardscape Details EBLA Studio 30/07/2024 33. EBLA-LD-DE02/D Hardscape Details 02 Steps and Fencing EBLA Studio 30/07/2024 34. EBLA-LD-DE03/D Softscaping Details and Notes EBLA Studio 30/07/2024 Supporting Documents No. Document Date 35. Clause 4.6 Variation Request prepared by BMA Urban August 2024 revised 2 Oct 2024 36. Design Verification Report prepared by Doroch Architects September 2024 37. Waste Management Plan prepared by Doroch Architects 30/08/2024 38. NatHERS Certificate prepared by WSGL Designbuild Pty Ltd 03/09/2024 39. BASIX Certificate prepared by WSGL Designbuild Pty Ltd 03/09/2024 40. Letter in relation to overhead cable bundling prepared by Ausgrid 04/07/2024 41. Amended Flood Impact Assessment Report prepared by Civil and Stormwater Engineering Services Pty Ltd 30/07/2024 42. Flood Assessment Certificate prepared by Civil and Stormwater Engineering Services Pty Ltd 30/07/2024 43. Architectural Response Letter to Council's SOFC prepared by Doroch Architects 17/03/2024 44. Traffic Response Letter prepared by Varga Traffic Planning 26/03/2024 45. Stormwater Engineering Response Letter prepared by Civil and Stormwater Engineering Services 22/03/2024

Orders

The Court orders that: 1. The appeal is upheld. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments made in accordance with s8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed the sum of $7,500 within 28 days of the date of the judgment. 3. Development Application DA-52/2022 for the demolition of the existing structures and construction of a four-storey residential flat building, with basement and ground floor level car parking at 30-32 Wellington Road, Chester Hill is approved, subject to the conditions of consent annexed hereto and marked "Annexure A".

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: 17 October 2024

(2023) 111 NSWLR 634

At a glance

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Judgment (12 paragraphs)

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Cases Cited (2)