Cornerstone SDA Pty Ltd v Canterbury-Bankstown Council

Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – affordable housing – cl 4.6 variations – orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 4.46, 8.7, 8.11, 8.15, Sch 1, Div 1, cl 7
Land and Environment Court Act 1979 (NSW), s 34
Canterbury-Bankstown Local Environmental Plan 2023, cll 1.8A, 2.2, 2.3, 2.7, 4.3, 4.4, 4.6, 6.2, 6.3, 6.9, 6.15, 6.21, Sch 1 cl 23
Environmental Planning and Assessment Regulation 2021 (NSW), ss 29, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.9, 6.10Ch 6
State Environmental Planning Policy (Housing) 2021, ss 15C, 16, 18, 19, 20, 145, 147, Sch 7A, Chs 2, 4
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48, 3.23, 3.26, Ch 3

Texts Cited: Canterbury-Bankstown Community Participation Plan 2019
Education and Care Services National Regulations 2011 (NSW)
NSW Child Care Planning Guideline September 2021
NSW Department of Planning and Environment, Apartment Design Guide, 2015

Category: Principal judgment

Parties: Cornerstone SDA Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation: Counsel:
A Pickles SC (Applicant)
M Bonanno (Solicitor) (Respondent)
Solicitors:
Macpherson Kelley (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s): 2024/349420

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal by Canterbury-Bankstown Council of development application DA-488/2024 (the DA) for the demolition of all existing structures with removal of driveways, paved areas and identified site trees, and the construction of a 6-storey shop-top housing development, containing 33 residential apartment units (including 6 affordable rental housing units), a 64-place child care centre on the ground floor, and two-level basement parking on Lot 20 and 21 in Deposited Plan 35211 (the site).

2. The DA was lodged on 4 July 2024. The Applicant lodged a Class 1 Application with the Court on 20 September 2024. The Respondent’s Statement of Facts and Contentions (SOFAC) was filed on 17 October 2024. The parties advise that the DA was refused by the Respondent on 4 November 2024.

3. 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 3 March 2025. I presided over the conciliation conference, which commenced with a site inspection. A number of submitters attended the on-site view and seven people made submissions to the Court.

4. The s 34 conciliation conference was adjourned to 9 April 2025 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent, and subsequently further adjourned a number of times, to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA).

5. After the conciliation conferences the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

6. The parties advise that the Applicant provided to the Respondent amended plans and material that included a number of changes included in the amended DA, characterising the proposed development as a mixed use development, and changing the built form of the proposed development as follows:

7. Reduction in the built form from 6 storeys to 5 storeys;

8. Reduction in child care numbers from 64 to 42 places; and

9. Reduction in the number of apartments (including affordable rental housing units) from 33 to 27.

10. Pursuant to cl 4.6 of the LEP, updated variation reports prepared by The Planning Hub (both dated 17 July 2025) for requests to vary development standards were submitted by the Applicant to support the following:

11. The proposed cl 4.6 variation of the height of buildings as stipulated at cl 4.3 of the Canterbury-Bankstown Local Environmental Plan 2023 (the LEP). The variation request has regard to the applicable bonuses prescribed under s 16(3) of the State Environmental Planning Policy (Housing) 2021 (the Housing SEPP); and

12. The proposed cl 4.6 variation of the minimum landscaped area standard at s 19(2)(b)(ii) of the Housing SEPP.

13. A signed s 34 agreement with Annexure A and the amended plans were filed with the Court on 15 August 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites, as amended on 30 September 2025.

14. 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.

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

16. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Environmental Planning and Assessment Act 1979

Owner’s consent

12. The parties advise that the DA was made by Andrew Hanna (sole director of Cornerstone SDA Hub Pty Ltd). Landowner’s Consent was provided in the Class 1 Application.

Community Participation (Sch 1, Div 2, cl 7(1) of the EPA Act)

13. The DA was notified in accordance with the Canterbury-Bankstown Community Participation Plan 2019 (Community Participation Plan) between 26 June 2024 and 16 July 2024. Eight submissions were received in response to the notification of the DA.

14. The parties advise that, in accordance with the Respondent’s Community Participation Plan, the amended DA was not required to be renotified as the Respondent considers there will be no additional adverse impact on any adjoining or nearby properties.

15. The parties advise that 8 submissions were received during the notification period. The Respondent submitted that the issues raised in the submission related to:

16. Permissibility;

17. Number of storeys and building height;

18. Solar access;

19. Increased traffic;

20. Car parking;

21. Pedestrian safety;

22. Streetscape impact;

23. Visual and acoustic privacy impacts;

24. Setback and building separation;

25. Water and electrical demand; and

26. Fire risk.

27. The parties advise that the Court can be satisfied that the issues raised by the objectors in the notification period, where appropriate, have been particularised in the Respondent’s SOFAC and have been adequately addressed in the Amended DA and Annexure A (conditions of consent).

Conditions

17. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Integrated Development

18. The parties advise that:

19. The DA is not for integrated development;

20. On 6 June 2024, the DA was referred to Ausgrid by the Respondent in accordance with s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) as the development is to be carried out within 5 metres of an exposed overhead electricity power line;

21. No response was received from Ausgrid in response to the written notice issued by the Council on 6 June 2024; and

22. On 18 March 2025, Ausgrid issued an offer to provide Design Related Services. The service agreement offer relates to the DA plans as submitted to Council as part of the original DA. Condition 23 of the conditions of consent requires that prior to the issue of a construction certificate, the Applicant is to obtain written evidence of the service provider’s requirements to the certifier from the relevant electricity provider demonstrating that satisfactory arrangements can be made for the installation and supply of electricity.

Canterbury-Bankstown Local Environmental Plan 2023

19. The Canterbury-Bankstown Local Environmental Plan 2023 (the LEP) is the relevant local environmental planning instrument that applies to the site.

20. The parties advise that at the time of lodgement of the DA, the site was zoned B2 Local Centre under the LEP, and that the Canterbury-Bankstown Local Environmental Plan 2023 (Amendment No 5) (LEP Amendment) commenced on 17 April 2025 to amend the nomenclature to be “E1 Local Centre” and include additional zone objectives.

21. Clause 1.8A(3) of the LEP Amendment provides that a development application made, but not finally determined, before the commencement of the LEP Amendment must be determined as if the plan had not commenced. In these circumstances, as the final determination has not yet been made by the Court, the former provisions of the Canterbury-Bankstown LEP prior to the LEP Amendment applies to the DA. Therefore, the site continues to be zoned B2 Local Centre for the purposes of this DA.

22. The parties advise that the proposed development is characterised as a mixed use development.

23. Development for the purposes of “centre-based child care facilities” and “commercial premises” is permissible with consent in the B2 Zone.

24. Clause 23 of Schedule 1 of the Canterbury-Bankstown LEP provides that development for the purposes of residential flat buildings is permitted with consent on land identified as “Area 1” on the Clause Application Map that is in Zone B2. The site is mapped as “Area 1” and therefore residential flat buildings are also permitted with consent.

25. “Residential flat building” is defined in the Canterbury-Bankstown LEP as follows:

residential flat building means a building containing 3 or more dwellings, but does not include an attached dwelling, co-living housing or multi dwelling housing.

26. The parties advise that the residential component of the proposed development, containing more than 3 dwellings, can be characterised as a residential flat building.

27. Development for the purpose of demolition is permissible with consent pursuant to cl 2.7 of the LEP.

28. Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

29. The objectives of the B2 Zone in the LEP are as follows:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To provide for certain residential uses that are compatible with the mix of uses in local centres.

• To promote a high standard of urban design and local amenity.

30. The parties advise that to the extent that the zone objectives are relevant, the amended DA is consistent with the objectives of the B2 Zone.

31. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

32. Pursuant to cl 4.3 of the LEP, the maximum height of buildings (HoB) on the site is 14 metres. The parties advise that the amended DA has a maximum building height of 21.15 metres. The amended DA relies upon the additional height provision at s 16(3) of the Housing SEPP which increases the maximum permissible height of buildings on the site to 18.2m. (This is discussed further below at paras [49]-[56]).

33. The amended DA proposes a maximum building height of up to 20.4m, breaching the height development standard by 2.20m. The Applicant submitted a written variation request to the HoB development standard pursuant to cl 4.6 of the LEP for the amended DA, prepared by The Planning Hub and dated 23 September 2025. The parties have advised that the Court can be satisfied that compliance with the height development standard is unreasonable or unnecessary in these circumstances and there are sufficient planning grounds to justify the variation of the height development standard.

34. I am satisfied that the Applicant’s amended cl 4.6 written request is well founded and that the variation to the maximum height of buildings (HoB) development standard is acceptable.

35. I consider that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the HoB development standard notwithstanding the HoB exceedance for the reasons provided within the Applicant’s written request, which I adopt;

36. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons as stated in the written variation request :

37. The variation directly facilitates the delivery of affordable housing on the site, being close to services and amenities including Panania train station;

38. The areas of exceedance are limited to the fire stairs and lift overrun for access and for shade of the COS area and are integrated with the design of the building;

39. The areas of exceedance do not adversely change the character of the mixed-use building in terms of streetscape presentation given their setbacks and location within the building;

40. The visual bulk and scale of the development remains appropriate for the site and allows for suitable transition from development to the north and west;

41. The areas of exceedance do not comprise of habitable floor areas;

42. The proposal does not result in any adverse amenity impact on future residents or adjoining properties;

43. The proposed variation does not inhibit the ability of adjoining properties to be similarly redeveloped; and

44. The proposed variation results in an improved environmental planning outcome for the site with improved internal amenity and use of the site without any adverse visual or amenity impacts on surrounding development.

45. Approval of the proposed development will be in the public interest for the reasons provided above (at [36(1)]-[36(8)]), and because the proposed development is consistent with the objectives for the HoB development standard and for development within the B2 zoning of the subject site, and in accordance with the Housing SEPP for the reasons provided within the Applicant’s written request, which I also adopt.

46. Pursuant to cl 4.4 of the LEP, a maximum floor space ratio (FSR) of 2:1 applies to the site. The parties advise that the development proposes a floor space ratio of 2.19:1, similarly relying on the additional floor space ratio provision at s 16 of the Housing SEPP. (This is further discussed in relation to the Housing SEPP at pars [49]-[56]) below.

47. Clause 6.2 (Earthworks) of the LEP applies to the amended DA as the development proposes excavation works for the purposes of a basement. The amended DA is supported by a Geotechnical Report prepared by J.L Geotechnical dated 2 May 2024. The parties advise that the Court can be satisfied that the matter under cl 6.2(3) of the LEP have been considered as follows:

48. The proposed development will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability in the area;

49. The proposed excavation is consistent with the site’s context and is in accordance with the Respondent’s current and proposed planning strategies;

50. The destination of any excavated material is to be in accordance with the conditions of consent;

51. It is considered unlikely that excavation will lead to the disturbance of relics as the site is not known to be situated within an area of archaeological significance; and

52. The earthworks are unlikely to impact on any watercourse, drinking water catchment or environmentally sensitive areas due to the location of the site.

53. Clause 6.3 of the LEP relates to Stormwater management and water sensitive urban design. The amended DA is supported by Stormwater Concept Plans, Revision D dated 21 May 2025 prepared by SGC Consultants Pty Ltd which the parties advise have been designed to satisfy the matters in cl 6.3(3) of the LEP.

54. Clause 6.9 of the LEP relates to Essential services. The site currently contains existing dwellings and is located within an established residential area which is serviced by water, electricity and sewage. In addition, the parties advise that:

55. The amended DA is accompanied by Stormwater Concept Plans which provide a stormwater drainage design for the proposed development;

56. The amended DA is accompanied by an Amended Waste Management Plan dated May 2025 prepared by Dickens Solutions which details the waste management for the proposed development. As there is both residential and commercial components to the development, separate waste management arrangements will be made to both. The residential waste will be collected kerbside by the Respondent’s collection and return service. The commercial waste collection will be collected kerbside outside of operational hours by a private waste collection service; and

57. The proposed development is accessed by a driveway off Tower Street into a basement carpark. The amended DA is accompanied by a Traffic and Parking Assessment Report dated 22 May 2025 prepared by Terraffic Pty Ltd which confirms that the proposed carpark and vehicular access arrangements have been designed to satisfy the relevant requirements of the Australian Standards.

58. Clause 6.15 of the LEP relates to Design excellence and applies to the amended DA as it involves the erection of a new building for the purposes of residential flat building of at least four storeys.

59. The parties advise that:

60. The Respondent operates a Design Review Panel and its comments have been considered in the Respondent’s SOFAC. The amended DA is accompanied by a Response to Design Excellence Panel Comments;

61. The Respondent is satisfied that the amended DA has addressed the advice from the Design Review Panel; and

62. The Court can be satisfied that the proposed development exhibits design excellence in considering the matters at cl 6.15(4) of the LEP.

63. Clause 6.21 of the LEP relates to Restrictions on development in Zones B1, B2 and B3. The parties advise that:

64. Condition 151 of the conditions of consent prevents the use of the ground floor as residential accommodation; and

65. The Court can be satisfied that the ground level of the proposed development will not be used for residential accommodation.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

45. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Conservation SEPP) aims to protect the biodiversity values of trees and other vegetation in non-rural areas of the State; and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.

46. The amended DA proposes removal of trees to facilitate the proposed development. The amended DA is accompanied by an Arboricultural Impact Assessment Report prepared by Jacksons Nature Works dated 7 May 2024.

47. The parties advise that the matters arising under Ch 2 of the Conservation SEPP do not apply to the proposed development, and as such, is not a jurisdictional requirement for the Court to consider. This is because the Applicant has not applied to remove the trees under permit, but rather seeks development consent to remove the trees under the EPA Act.

48. The parties advise that the site is located within the Georges River Catchment area. Chapter 6 of the Conservation SEPP applies to the proposed development. The parties advise that:

49. The matters in s 6.6 of the Conservation SEPP have been addressed in the Stormwater Concept Plans for the amended DA. The Respondent is satisfied that the proposed development has been designed in accordance with the requirements of s 6.6 of the Conservation SEPP;

50. In relation to the matters in s 6.7 of the Conservation SEPP, the Court can be satisfied that there will be no or minimal impact on aquatic ecology as the site is not located on land which contains terrestrial, aquatic or migratory animals or vegetation and the site is not located near a natural waterbody nor wetlands;

51. In relation to the matters in s 6.8 of the Conservation SEPP, the site is not located on floor liable land and the proposed development will have no impact on periodic flooding;

52. In relation to the matters in s 6.9 of the Conservation SEPP, the site is not located near any natural waterbodies or foreshores, and will have no impact on any public access to recreational land uses; and

53. In relation to s 6.10 of the Conservation SEPP, the proposed development is not likely to have an adverse environmental impact on any adjacent or downstream local government areas.

State Environmental Planning Policy (Housing) 2021

49. Chapter 2 – Affordable Housing and Chapter 4 – Design of Residential Development of the Housing SEPP apply to the proposed development.

Chapter 2 - Affordable Housing

50. The parties advise that amended DA relies on provisions in Ch 2 Pt 2 Div 1 of the Housing SEPP in relation to in-fill affordable housing, and submit that the proposed development satisfies the matters in s 15C of the Housing SEPP as follows:

51. In relation to s 15C(1)(a), “shop top housing” is permitted with consent in the B2 Zone;

52. In relation to s 15C(1)(b), the amended DA proposes 27 apartments which include 6 affordable housing apartments and therefore has an affordable housing component of approximately 22% (i.e. at least 10%); and

53. In relation to s 15C(1)(c), the site is located in the Six Cities Region and the proposed development is to be carried out in an accessible area as the site is located within 250 metres of Panania Train Station (i.e. within 800 metres walking distance of a public entrance to a railway station).

Floor Space Ratio

51. Section 16(1) of the Housing SEPP provides that the maximum FSR for development is the maximum FSR ratio for the land plus an additional FSR of up to 30% based on the minimum affordable housing component calculated in accordance with s 16(2) of the Housing SEPP. The parties advise that:

52. The amended DA proposes an affordable housing component of 22%. Based on the calculation in s 16(2) of the Housing SEPP, the development would have an additional floor space ratio of 44%;

53. However, s 16(1) of the Housing SEPP imposes a limitation of “up to” 30% additional floor space ratio for the development. In that regard, based on the 30% additional floor space, the amended DA can rely on a maximum permitted FSR of 2.6:1; and

54. The amended DA proposes a floor space ratio of 2.19:1 and therefore complies with s 16(1) of the Housing SEPP.

Height

52. Section 16(3) of the Housing SEPP provides that, for development which includes residential flat buildings, the maximum building height is the maximum permissible building height for the land plus an additional building height that is the same percentage as the additional floor space ratio permitted under s 16(1) of the Housing SEPP.

53. The parties advise that:

54. The proposed development includes a residential flat building component above the ground floor and can rely upon the additional building height pursuant to s 16(3) of the Housing SEPP;

55. The amended DA is also eligible for a 30% additional building height (being the same percentage as the additional floor space ratio permitted), and therefore, the amended DA can rely on a maximum building height of 18.2 metres;

56. As stated in par [33] above, the amended DA proposes a maximum building height of up to 20.4m, breaching the height development standard by 2.20m; and

57. The cl 4.6 variation request for building height (discussed at pars [34] – [37] above), establishes that there are sufficient planning grounds to justify the variation of the height development standard.

Non-discretionary development standards

54. Section 19 of the Housing SEPP provides non-discretionary development standards for particular matters relating to residential development. The parties advise that the amended DA addresses these standards as follows:

55. In relation to s 19(2)(a) of the Housing SEPP, the site area is 1,302.59 square metres;

56. In relation to s 19(2)(b) of the Housing SEPP, the applicable minimum landscaped area standard is proposed landscape area is 30% of the site area, which is 390.6 square metres. The proposed development provides a landscaped area of 321.7 square metres (being 24.6%). Section 19 of the Housing SEPP provides development standards for particular matters which, if complied with, only prevents a consent authority from requiring more onerous standards. Nonetheless, the amended DA is accompanied by a Clause 4.6 Variation Request prepared by the Planning Hub, dated 23 September 2025 in relation to the landscaped area;

57. The parties submit, and I am satisfied that, that there are sufficient environmental planning grounds to justify the contravention of this non-discretionary standard as follows:

(a) The inclusion of ample communal living and open space areas associated with the proposed development ensures amenity is provided to residents and there are no adverse impacts; (b) The proposed development is consistent with the objectives of the zone and maximises opportunities to provide a mixed use development comprising a range of housing diversity and affordable dwelling types for the community within proximity of public transport and existing infrastructure; (c) The development has been sited and designed to maximise landscaping where possible and contributes to the landscaped character of the area; (d) The amended DA provides an enlarged communal open space on its rooftop to ensure the additional residents receive adequate access to a functional space that can facilitate a number of communal interactions; and (e) The proposal does not result in any adverse impacts on adjoining properties or the streetscape.

4. In relation to ss 19(2)(c) and 19(2)(d), these matters do not apply to the amended DA as it is development to which Ch 4 of the Housing SEPP applies (refer to s 19(3) of the Housing SEPP);

5. In relation to ss 19(2)(e) and 19(2)(f), the minimum required parking number based on the proposed development is 22 parking spaces. The parties advise that the proposed development will provide 29 resident parking spaces;

6. In relation to s 19(2)(g) of the Housing SEPP, the parties advise that the amended DA complies with the minimum internal area specified in the Apartment Design Guide (ADG); and

7. In relation to ss 19(2)(h) and (i) of the Housing SEPP, these do not apply to the amended DA as the proposed development is not for the purpose of a dual occupancy, manor house or multi dwelling housing (terraces), and s 19(2)(g) is applicable to the amended DA (as discussed in the above sub-paragraph).

8. Section 20 of the Housing SEPP provides that development consent must not be granted to development under this division unless the consent authority has considered whether the design of the residential development is compatible with the desirable elements of the character of the local area, or for precincts undergoing transition, the desired future character of the precinct. The parties advise that the amended DA is accompanied by an Urban Design Report dated February 2025 prepared by Mackenzie Architects International which considers the future character of the area.

9. Condition 129 of the conditions of consent requires that the proposed development will provide an affordable housing component which will be managed by a registered community housing provider for a period of at least 15 years.

Chapter 4 - Design of residential apartment development

57. Chapter 4 of the Housing SEPP applies to the proposed development as it includes development of residential apartments of at least three storeys.

58. The State Environmental Planning Policy Amendment (Housing) 2023 (Housing Amendment SEPP) commenced on 14 December 2023 and served to, inter alia, repeal the State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) and insert the provisions into the Housing SEPP at Chapter 4 and Schedule 9.

59. Clause 8(2A) of Schedule 7A of the Housing SEPP confirms that the matters in Chapter 4 of the Housing SEPP apply to the amended DA.

Design Review Panel

60. As noted at par [43] above, the Respondent operates a Design Review Panel and therefore a referral of the DA to the Design Review Panel is required under s 145 of the Housing SEPP.

61. The consent authority must consider the matters in s 147(1) of the Housing SEPP.

62. The DA was reported to the Design Review Panel and the comments have been considered in the Respondent’s SOFAC. The Respondent is satisfied that the amended DA has addressed the advice from the Design Review Panel.

63. The amended DA is also accompanied by a response to the Design Review Panel comments.

Design verification statement

64. Pursuant to ss 4.12 and 4.64 of the EPA Act and s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) the amended DA must be accompanied by a statement by a qualified designer which addresses the matters in s 29(2) of the EPA Regulation. An updated design verification statement has been prepared which addresses the matters required by s 29(2) in respect of the Amended DA.

65. Section 147 of the Housing SEPP provides that development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to the design quality principles and the objectives specified in the ADG for the relevant design criteria. The Amended DA has been designed by a registered architect and is subject of a design verification statement which sets out the assessment against the relevant principles and criteria demonstrating that due regard to Sch 9 of the Housing SEPP and the ADG has been given.

66. An assessment against the ADG is also provided in the Statement of Environmental Effects) accompanying the DA.

State Environmental Planning Policy (Resilience and Hazards) 2021

67. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and

68. The parties advise that the amended DA is accompanied by a Preliminary Site Investigation Report prepared by JL Geotechnical dated 19 March 2024 (PSI) which has been prepared for the site which concludes that that the site is considered suitable for the proposed land use for residential development; and

69. The recommendations contained in the PSI have been appropriately included in the conditions of consent.

70. The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Sustainable Buildings) 2022

69. State Environmental Planning Policy (Sustainable Buildings) 2022 (the Sustainability SEPP) applies to the proposed development.

70. The Applicant’s amended DA is accompanied by a complying BASIX certificate 1746454M_03 dated 24 July 2025 prepared by Eco Certificates Pty Ltd.

State Environmental Planning Policy (Transport and Infrastructure) 2021

71. Chapter 2 of the Transport SEPP applies to the DA as the proposed development is proposed to be carried out within 5 metres of an exposed overhead electricity power line. As discussed above at par [16], the DA was referred to Ausgrid pursuant to s 2.48 of the Transport SEPP.

72. The parties advise that Ausgrid issued its response approving the DA, subject to its conditions being included in the development consent.

73. Chapter 3 of the Transport SEPP provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across NSW. As the amended DA includes a centre-based child care facility, s 3.23 of the Transport SEPP requires that the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines, before determining a development application.

74. Section 3.26 of the Transport SEPP sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority from requiring more onerous standards for those matters, including s 3.26(2)(b) of the Transport SEPP that provides the requirements for indoor or outdoor space play space.

75. The parties advise that the amended DA provides at least 3.25 square metres of unencumbered indoor play space and at least 7 square metres of unencumbered outdoor play space per child which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulation (2011) (the Regulation), which requires 3.25 square metres of unencumbered indoor play space and 7 square metres of unencumbered outdoor play space per child to be provided.

Child Care Planning Guideline 2021

76. The parties advise that compliance with the Child Care Planning Guidelines is addressed in the Statement of Environmental Effects (SEE) submitted in support of the amended DA.

Education and Care Services National Regulation 2011

77. The parties advise that the Regulation provides extensive controls and requirements in addition to that of the Transport SEPP, the LEP and the Canterbury-Bankstown Development Control Plan 2023 and includes:

78. Licensing and approvals processes, including documentation requirements;

79. Facilities and equipment requirements;

80. Staffing requirements;

81. Child number requirements;

82. Operational requirements;

83. Administrative requirements;

84. Probity check requirements; and

85. Various miscellaneous requirements.

86. The parties submit that compliance with the Regulation is assessed in the SEE.

Remaining matters in section 4.15(1)

79. The parties agree that the Amended DA can be approved taking into consideration the matters in s 4.15(1)(b) – (e) of the EPA Act. Matters relevant to subs (b), (c) and (e) are considered generally in the SEE.

Conclusion

80. Having considered the advice of the parties provided above at [12]-[79], I am satisfied that:

81. The Applicants’ amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

82. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

83. Approval of the proposed development is in the public interest.

84. Further, 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.

85. 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.

86. The Court notes:

87. That Canterbury-Bankstown Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA-488/2024 made on 15 August 2025 to rely on the documents specified below:

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No. A0001 Revision H | Cover Page | Mackenzie Architects International | 16 July 2025 | | Drawing No. A0002 Revision H | Demolition Plan | 16 July 2025 | | Drawing No. A1000 Revision H | Site Plan | 16 July 2025 | | Drawing No. A1001 Revision H | Basement Plan 01 | 16 July 2025 | | Drawing No. A1002 Revision H | Basement Plan 02 | 16 July 2025 | | Drawing No. A1003 Revision H | Ground Floor Plan | 16 July 2025 | | Drawing No. A1004 Revision H | First Floor Plan | 16 July 2025 | | Drawing No. A1005 Revision H | Typical Floor Plan Levels 2-3 | 16 July 2025 | | Drawing No. A1006 Revision H | Fourth Floor Plan | 16 July 2025 | | Drawing No. A1007 Revision H | Fifth Floor Plan / COS | 16 July 2025 | | Drawing No. A1008 Revision H | Roof Plan | 16 July 2025 | | Drawing No. A2001 Revision H | North Elevation | 16 July 2025 | | Drawing No. A2002 Revision H | East Elevation | 16 July 2025 | | Drawing No. A2003 Revision H | South Elevation | 16 July 2025 | | Drawing No. A2004 Revision H | West Elevation | 16 July 2025 | | Drawing No. A2101 Revision H | Section A-A | 16 July 2025 | | Drawing No. A2102 Revision H | Section B-B | 16 July 2025 | | Drawing No. A3001 Revision H | GFA Calculations | 16 July 2025 | | Drawing No. A3002 Revision H | Cross-Vent Calculations | 16 July 2025 | | Drawing No. A3003 Revision H | Landscape Calculations | 16 July 2025 | | Drawing No. A3004 Revision H | Communal Open Space | 16 July 2025 | | Drawing No. A3005 Revision H | Deep Soil Calculations | 16 July 2025 | | Drawing No. A3008 Revision H | Affordable Calculations | 1 July 2025 | | Drawing No. A3009 Revision H | Finishes Schedule | 16 July 2025 | | Drawing No. A3010 Revision B | BHP Diagram | 16 July 2025 | | Drawing No. A3030 Revision A | Substation Detail | 21 May 2025 | | Drawing No. A3037 Revision B | CCC Kitchen Det. Floor Plan | 24 February 2025 | | Drawing No. A3038 Revision B | CCC Kitchen Internal Elev 01 | 24 February 2025 | | Drawing No. A3039 Revision B | CCC Kitchen Internal Elev 02 | 24 February 2025 | | Drawing No. A4001 Revision H | Solar Access 9am-11am - Existing Context | 16 July 2025 | | Drawing No. A4002 Revision H | Solar Access 12pm-2pm - Existing Context | 16 July 2025 | | Drawing No. A4003 Revision H | Solar Access 3pm & Analysis - Existing Context | 16 July 2025 | | Drawing No. A4004 Revision H | Eastern Units Solar Access 9am-11am | 16 July 2025 | | Drawing No. A4011 Revision B | Solar Access 9am-11am - Future Character | 27 June 2025 | | Drawing No. A4012 Revision B | Solar Access 12pm-2pm - Future Character | 27 June 2025 | | Drawing No. A4013 Revision B | Solar Access 3pm & Analysis - Future Character | 27 June 2025 | | Drawing No. A4101 Revision H | Shadow Diagrams 9am-11am | 16 July 2025 | | Drawing No. A4102 Revision H | Shadow Diagrams 12pm-1pm | 16 July 2025 | | Drawing No. A4103 Revision H | Shadow Diagrams 2pm-3pm | 16 July 2025 | | Revision H | Evacuation Diagram | 16 July 2025 | | Landscape Plans | | 2 | Drawing No. LPS34 24 - 106 Sheet 01 Issue L | Hardscape Plan | Conzept Landscape Architects | 2 July 2025 | | Drawing No. LPS34 24 - 106 Sheet 02 Issue L | Soil Depth Plan | 2 July 2025 | | Drawing No. LPS34 24 - 106 Sheet 03 Issue L | Landscape Plan - GF | 2 July 2025 | | Drawing No. LPS34 24 - 106 Sheet 04 Issue L | Landscape Plan - L1&5 | 2 July 2025 | | Drawing No. LPS34 24 - 106 Sheet 05 Issue L | Details & Specification | 2 July 2025 | | Drawing No. LPS34 24 - 106 Sheet 06 Issue L | Details | 2 July 2025 | | Drawing No. LPS34 24 - 106 Sheet 07 Issue L | Sections | 2 July 2025 | | Stormwater Plans | | 3 | Drawing No. S01-SW100 Revision D | Cover Sheet & Drawing Index | S&G Consultants Pty Ltd | 21 May 2025 | | Drawing No. S01-SW201 Revision D | Erosion & Sediment Control Plan & Details | 21 May 2025 | | Drawing No. S01-SW301 Revision D | Stormwater Concept Design Basement 02 Plan | 21 May 2025 | | Drawing No. S01-SW302 Revision D | Stormwater Concept Design Ground Floor Plan | 21 May 2025 | | Drawing No. S01-SW303 Revision D | Stormwater Concept Design First Floor Plan | 21 May 2025 | | Drawing No. S01-SW304 Revision D | Stormwater Concept Design Roof Plan | 21 May 2025 | | Drawing No. S01-SW401 Revision D | Stormwater Concept Design Details Sheet 01 | 21 May 2025 | | Drawing No. S01-SW402 Revision D | Stormwater Concept Design Details Sheet 02 | 21 May 2025 | | Documents | | 4 | Design Verification Statement | Mackenzie Architects International | 17 July 2025 | | 5 | Traffic and Parking Assessment Report | Terraffic Pty Ltd | 22 May 2025 | | 6 | Environmental Noise Impact Assessment | Day Design Pty Ltd | 23 May 2025 | | 7 | Power Supply | AA Power Engineering | 20 May 2025 | | 8 | Offer to Provide Design Related Services | Ausgrid | 18 March 2025 | | 9 | Clause 4.6 Variation Request - Landscaped Area | The Planning Hub | 17 July 2025 | | 10 | Clause 4.6 Variation Request - Height | The Planning Hub | 17 July 2025 | | 11 | Amended Waste Management Plan | Dickens Solutions | May 2025 | | 12 | Amended Childcare Plan of Management | The Planning Hub | 17 July 2025 | | 13 | Response to Design Excellence Panel Comments | The Planning Hub | | | 14 | Addendum Statement of Environmental Effects | The Planning Hub | 19 March 2025 | | 15 | Fire Engineering Statement | J Squared Engineering Pty Ltd | 19 March 2025 | | 16 | Urban Design Strategy | Mackenzie Architects International | February 2025 | | 17 | Stormwater Response Letter | S&G Consultants Pty Ltd | 5 February 2025 | | 18 | Emergency & Evacuation Report | Early Education Solutions | 6 February 2025 | | 19 | BASIX Certificate No. 1746454M_03 | Eco Certificates Pty Ltd | 24 July 2025 | | 20 | NatHERS Certificate No. #HR-1P3WWF-01 | Eco Certificates Pty Ltd | 24 July 2025 | | Building Components Performance and Specifications Schedule NatHERS Thermal Comfort Modeling | 21 July 2025 |

Orders

84. The Court orders that:

85. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $20,000, such amount is to be paid within 60 days of the date of this order.

86. The appeal is upheld.

87. Development consent is granted to development application No DA-488/2024 as amended, for the demolition of existing structures, consolidation of lots, construction of a 5-storey mixed use development comprising a 42 place child care centre on the ground floor, 27 apartments (including 6 affordable rental housing apartments) with basement parking, removal of existing trees, landscaping, drainage and associated site works on land legally described as Lot 20 and Lot 21 in Deposited Plan 35211 and known as 166 and 168 Tower Street, Panania, NSW, 2213, subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A (804 KB, pdf)

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