Chien Gong Pty Ltd v Canterbury-Bankstown Council

Texts Cited: Canterbury Bankstown Community Participation Plan

Category: Principal judgment

Parties: Chien Gong Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation: Counsel:
A Perkins (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)
Solicitors:
Project Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s): 2025/332416

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA-726/2025 seeking consent for alterations and additions and use of a dwelling, including roof extension, minor internal design and layout changes, basement configuration, area expansion and extension of the northern retaining wall (Proposed Development) at Lot D DP18432 and Lot E DP18432, also known as 311-313 Stacey Street, Bankstown NSW 2200 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 19 December 2025. I have presided over the conciliation conference.

3. At the conciliation conference, the parties reached 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 development consent to the development application subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and the parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.

7. The development application was publicly notified to adjoining and surrounding properties by the Respondent from 16 July 2025 to 29 July 2025 in accordance with the Canterbury Bankstown Community Participation Plan. No submissions were received in response to the development application. The Respondent is satisfied that the amended plans and materials agreed to during the course of the proceedings do not need to be further notified or advertised having regard to the nature of the amendments and the Respondent’s Community Participation Plan.

8. There is evidence of owner’s consent filed with the Class 1 Application at Tab 3.

9. The Site is zoned R2 – Low Density Residential pursuant to the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP). The development application, as amended, is permissible with consent within the R2 zone.

10. The Height of Buildings Map referred to in cl 4.3(2) of the CBLEP provides a maximum height of building (HOB) development standard to the effect that the Proposed Development is not to exceed the maximum height of 9 metres. The Proposed Development complies with the HOB development standard as depicted in architectural plan titled E-01, drawing No. A301.

11. The Site is subject to a maximum floor space ratio (FSR) of 0.5:1 pursuant to cl 4.4 of the CBLEP. The Proposed Development does not exceed the maximum FSR of 0.5:1 as set out and explained in the Statement of Environmental Effects prepared by HDC Planning dated 27 May 2025 (SEE) which addresses the calculation of gross floor area of the basement. The SEE concludes that no part of the proposed basement is calculable as gross floor area. In addition, and for an abundance of caution, the Applicant provides at Appendix 2 of the SEE a Clause 4.6 Request for Variation to the FSR development standard which has been considered by the Respondent. The parties are satisfied that the FSR development standard is not contravened and I make no finding pursuant to cl 4.6 of the CBLEP.

12. The Proposed Development proposes minor excavation works on the Site for stormwater upgrades, however the parties have considered the matters contained within cl 6.2(3) of the CBLEP and are satisfied the earthworks proposed are not of a material nature and will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

13. The Proposed Development is supported by stormwater plans prepared by Premium Design and Engineering, dated 3 December 2025 and the parties have considered the matters set out in cl 6.3(3) of the CBLEP and agree the stormwater and drainage works proposed satisfy the relevant requirements of this clause. Conditions of Consent have been agreed which make further provision for stormwater management prior to the commencement of works, during and post construction.

14. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires the consent authority to consider whether the land is contaminated, and if contaminated, it is satisfied the land is (or will be after remediation) suitable for the development proposed to be carried out. The Respondent advises that Council records reveal that the Site has only been used for residential purposes and the parties agree there is no evidence of Site contamination nor hazardous fill on the Site. There are no significant earthworks proposed and the proposal does not comprise a change of use. Accordingly, the parties are satisfied the Site is suitable for continued residential use and the requirements contained within s 4.6 of the Resilience and Hazards SEPP have been met. In any event, standard conditions of consent have been incorporated which make provision for unexpected contamination finds on the Site (see for example condition 43).

15. The Site is located within the Georges River catchment. Therefore, Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the Proposed Development, which aims to protect the river system by considering development and land use impacts on a regional context. The parties agree that the requirements of the Biodiversity SEPP are satisfied. The matters contained in Pt 6.2, Div 2, are addressed in the documents submitted in support of the development application, as amended, including:

16. SEE

17. Stormwater Plans prepared by Premium Design and Engineering dated 3 December 2025.

18. Architectural plans prepared by Premium Design and Engineering dated 11 December 2025.

19. The Proposed Development is consistent with the development controls identified Pt 6.2, Div 2 and complies with the relevant stormwater and water quality requirements of this Chapter. The parties agree there are no adverse impacts relating to water quality, ecology or flooding arising from the proposed development. Conditions of consent addressing erosion and sediment control and water discharge have been imposed.

20. The State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) applies to the development application, as amended. BASIX Certificate 1794014S_02 was filed with the Class 1 Application at Tab 8 which confirms the proposed works remain consistent with the requirements of Ch 2 and the standards in Sch 1. The parties agree the development application, as amended, satisfies the requirements of the Sustainable Buildings SEPP.

21. The Site is located on the eastern side of Stacey Street, a classified road thus attracting the provisions of Ch 2, Pt 2.3: Div 17 – Roads and Traffic, State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) which deals with development in or adjacent to road corridors and reservations. The proposed works within the Stacey Street road reserve were subject to and obtained Transport for NSW’s (TfNSW) approval, as part of the existing Development Consent DA-254/2020, as modified which remains in force and effect. Similarly, the parties have agreed conditions of consent with respect to the Proposed Development, requiring work permits for work in front of the Site adjacent to the road corridor. Those conditions require the works to be in accordance with TfNSW’s approval. Further, the Proposed Development does not generate traffic or cause parking impacts. The Proposed Development improves the internal driveway and access to the car parking spaces and provides adequate space outside the internal vehicle manoeuvring area.

22. The parties have considered the requirements within Subdiv 2 of Div 17 of the Transport and Infrastructure SEPP and are satisfied these requirements are met.

23. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment.

24. 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.

Notations:

22. The Court notes that

23. the Respondent, as the relevant consent authority, has approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending its Development Application No. DA-726/2025 to include the following plans and documents:

| Plan Name | Drawing No. | Rev/Ref No | Date | Prepared By | | Amended Architectural Plans | | Cover Page | A100 | - | 11 December 2025 | Premium Design and Engineering | | Site Plan | A101 | - | 11 December 2025 | Premium Design and Engineering | | Demolition Plan | A102 | - | 11 December 2025 | Premium Design and Engineering | | Consolidation Lot | A103 | - | 11 December 2025 | Premium Design and Engineering | | Basement Plan | A104 | - | 11 December 2025 | Premium Design and Engineering | | Basement 1:200 | A105 | - | 11 December 2025 | Premium Design and Engineering | | Ground Floor | A106 | - | 11 December 2025 | Premium Design and Engineering | | Ground Floor 1:200 | A107 | - | 11 December 2025 | Premium Design and Engineering | | First Floor | A108 | - | 11 December 2025 | Premium Design and Engineering | | First Floor 1:200 | A109 | - | 11 December 2025 | Premium Design and Engineering | | E-05 | A300 | - | 11 December 2025 | Premium Design and Engineering | | E-01 | A301 | - | 11 December 2025 | Premium Design and Engineering | | E-08 | A302 | - | 11 December 2025 | Premium Design and Engineering | | E-03 | A303 | - | 11 December 2025 | Premium Design and Engineering | | Colour Scheme | A304 | - | 11 December 2025 | Premium Design and Engineering | | S-01 | A305 | - | 11 December 2025 | Premium Design and Engineering | | S-02 | A306 | - | 11 December 2025 | Premium Design and Engineering | | BBQ Area | A307 | - | 11 December 2025 | Premium Design and Engineering | | Driveway Section | A308 | - | 11 December 2025 | Premium Design and Engineering | | Sediment Control Plan | SCP | - | 11 December 2025 | Premium Design and Engineering | | Neighbour Notifications Plan | NNP | - | 11 December 2025 | Premium Design and Engineering | | Sediment Control Plan | SCN | - | 11 December 2025 | Premium Design and Engineering | | Landscaping | L01 | - | 11 December 2025 | Premium Design and Engineering | | Landscaping Notes | L02 | - | 11 December 2025 | Premium Design and Engineering | | Overshadowing Plans | A500 | - | 11 December 2025 | Premium Design and Engineering | | Doors & Windows | A600 | - | 11 December 2025 | Premium Design and Engineering | | Doors & Windows | A601 | - | 11 December 2025 | Premium Design and Engineering | | Doors & Windows | A602 | - | 11 December 2025 | Premium Design and Engineering | | Amended Engineering Plans | | General Notes 1 | H01 | - | 3 December 2025 | Premium Design and Engineering | | General Notes 2 | H02 | - | 3 December 2025 | Premium Design and Engineering | | General Notes 3 | H03 | - | 3 December 2025 | Premium Design and Engineering | | Stormwater Layout | H04 | - | 3 December 2025 | Premium Design and Engineering | | Basement Stormwater Layout | H05 | - | 3 December 2025 | Premium Design and Engineering | | Other Plans and Documents | | Updated Statement of Environmental Effects | - | - | 27 May 2025 | HDC Planning | | Proposed Front Fence Plans | - | - | 10 December 2025 | CML Planning | | Plan of Structures in Relation to Boundary | 11870-002 | A | 28 October 2025 | Boxall Surveyors | | Council Cost Report | CC246953 | v3 | 2 December 2025 | Duo Quantity Surveyors |

2. The Applicant has agreed to pay the Respondent’s costs thrown away as a result of the amendment to the development application in the sum of $4,000.00 (inc GST) within 28 days of the date of determination.

Orders:

23. The Court orders:

24. The appeal is upheld.

25. Development consent is granted to Development Application No. DA-726/2025 (as amended) for alterations and additions and use of a dwelling, including roof extension, minor internal design and layout changes, basement configuration, area expansion and extension of the northern retaining wall on Lot D DP18432 and Lot E DP18432, also known as 311-313 Stacey Street, Bankstown NSW 2200, subject to the conditions set out in Annexure A.

E Espinosa

Commissioner of the Court

Annexure A (371 KB, pdf)

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