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Capital Value International Group Pty Ltd v Canterbury-Bankstown Council [2025] NSWLEC 1850 | Case summary | Zoe

NSWNSWLEC

Capital Value International Group Pty Ltd v Canterbury-Bankstown Council

[2025] NSWLEC 1850

Land and Environment Court (NSW)|2025-12-02|Before: Gray C

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-12-02

Before

Gray C

Catchwords

APPEAL – development application – multi dwelling housing
– conciliation conference – agreement reached –
orders
made

Source

Original judgment source is linked above.

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Catchwords

APPEAL – development application – multi dwelling housing– conciliation conference – agreement reached –ordersmade

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Capital Value International Group Pty Ltd v Canterbury-Bankstown Council [2025] NSWLEC 1850

Hearing dates: Conciliation conference 02 December 2025

Date of orders: 02 December 2025

Decision date: 02 December 2025

Jurisdiction: Class 1

Before: Gray C

Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Application 591/2024 for the demolition of existing on-site structures and the construction of a multi-dwelling housing development comprising seven dwellings, each with ground-level access including 3 x two-storey dwellings and 4 x single-storey dwellings plus attic design, along with two parking spaces per dwelling, one visitor parking space, a central driveway, waste storage area, landscaping, and associated site works on land identified as Lots 60 and 61 in Deposited Plan 13324, known as 58 and 60 Belemba Avenue, Roselands NSW 2196, is approved subject to the conditions outlined in Annexure A.
(3) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the amount of $1,000, within 28 days of the date of these orders.

Catchwords: APPEAL – development application – multi dwelling housing – conciliation conference – agreement reached – orders made

COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a multi dwelling housing development at 58 and 60 Belemba Avenue, Roselands. The development application was refused by the respondent on 16 August 2024. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (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 [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 2 December 2025. I presided over the conciliation conference.
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 reflects the agreement filed on 27 November 2025, and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021). The most recent amendments include changes to the stormwater concept plans, including a drainage easement plan. The development application, as amended throughout the course of the appeal proceedings, is for a multi-dwelling housing development comprising of seven dwellings with ground level access, with a two storey scale for the three dwellings to the front of the site, and a single storey plus attic scale for the four dwellings to the rear of the site.
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 signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional prerequisites to the exercise of the power to grant consent to the development application. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
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 could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:
The development works are for the purposes of multi dwelling housing, which is a permissible use in the R3 Medium Density Residential zone in which the site is located, pursuant to the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP).
The proposed development complies with the development standards in the CBLEP concerning height and floor space ratio.
The development application includes earthworks. Based on the Statement of Environmental Effects dated May 2024, I have considered the matters set out in cl 6.2(3) of the CBLEP.
Clause 6.3 of the CBLEP concerns stormwater and applies to the site. Based on the Jurisdictional Statement, the stormwater plans dated 16 June 2024, together with the OSD calculation and DRAINS modelling result of the same date, I am satisfied of each of the matters in cl 6.3(2).
Clause 6.9 of the CBLEP relates to essential services. In circumstances where there are already existing dwellings for which each of the services in cl 6.9 are available, I am satisfied that those services are available. In addition, in relation to stormwater drainage, based on the Deed of Agreement dated 3 October 2025, together with the agreed conditions of consent and the drainage easement plan, I am satisfied that adequate arrangements are in place to ensure that stormwater drainage through the neighbouring property will be available when required.
Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.
Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 16 May 2024. Based on the BASIX certificate, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.
The development application was notified between 25 June and 8 July 2024, and five written submissions were received in response. I have considered the issues raised in those written submissions.
Having reached the state of satisfaction that the decision is one that the Court could have made 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)).
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.
The Court notes:
The Respondent, Canterbury-Bankstown Council, approves, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application 591/2024 to rely on the following amended plans and documents (Amended Materials):