Darwich v Canterbury Bankstown Council

Category: Principal judgment

Parties: Sam Darwich (Applicant)
Canterbury Bankstown Council (Respondent)

Representation: Counsel:
M Staunton (Applicant)
P Bambogiotti (Respondent)
Solicitors:
Miller Prince (Applicant)
Canterbury Bankstown Council (Respondent)

File Number(s): 2024/450863

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application DA-606/2024. The development application seeks development consent for demolition works, construction of three multi-dwellings, strata subdivision and associated works (DA) at 65 Yangoora Road, Lakemba (Lot 1 DP 124920) (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending development application DA-606/2024 in accordance with the documents listed below:

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1. | Drawing No. 01, Revision O | Front Perspective/Contents | Campbell Hill Group Pty Ltd | 15 October 2025 | | Drawing No. 02, Revision O | Axon Renders/Materials | | Drawing No. 03, Revision O | Site Plan | | Drawing No. 04, Revision O | Subdivision Plan | | Drawing No. 05, Revision O | Sediment Control Plan | | Drawing No. 06, Revision O | Streetscape | | Drawing No. 07, Revision O | Fence Details | | Drawing No. 08, Revision O | Sun Study | | Drawing No. 09, Revision O | 3D Sun Study – View From Sun | | Drawing No. 10, Revision O | Site Analysis Plan | | Drawing No. 11, Revision O | Demolition Plan | | Drawing No. 12, Revision O | Cut/Fill Plan | | Drawing No. 13, Revision O | Ground Floor Plan | | Drawing No. 14, Revision O | First Floor Plan | | Drawing No. 15, Revision O | Roof Plan | | Drawing No. 16, Revision O | Elevations/Section | | Drawing No. 17, Revision O | Elevations/Section/Common Wall Detail | | Drawing No. 18, Revision O | Driveway Cross Sections | | Drawing No. 19, Revision O | Window & Door Schedule | | Drawing No. 20, Revision O | FSR Calculation Plan | | Drawing No. 21, Revision O | Site Plan With Ground Floor | | Drawing No. 22, Revision O | Site Plan With First Floor | | Drawing No. 23, Revision O | Landscape Calculation Plan | | Drawing No. 24, Revision O | Deep Soil Calculation Plan | | Landscape Plans | | 2. | Drawing No. 01, Revision C | Landscape Plan | Outside In Design | 14 October 2025 | | Drawing No. L03, Revision C | Landscape Concept Unit 1 | | Drawing No. L04, Revision C | Landscape Concept Unit 2 | | Drawing No. L05, Revision C | Landscape Concept Design Unit 3 | | Engineering Plans | | 3. | Drawing No. SW01, Issue E | Cover Page | Vanguard Consulting Engineers | 16 October 2025 | | Drawing No. SW02, Issue E | Specifications Sheet | | Drawing No. SW11, Issue E | Stormwater Plans Ground Level | | Drawing No. SW012, Issue E | Stormwater Plans Level 1 | | Drawing No. SW13, Issue E | Stormwater Plans Roof | | Drawing No. SW20, Issue E | Stormwater Details | | Drawing No. SW21, Issue E | Stormwater Details | | Drawing No. SW30, Issue E | Pre & Post Development Catchment Plan | | Documents | | 4. | 1750762M_04 | BASIX Certificate | Building & Energy Consultants Australia | 16 October 2023 |

3. The proceedings commenced on site as a hearing on 15 October 2025. On the basis of the joint expert reporting of the planners, as well as amendments made to the development application, the parties advised that the contentions had been resolved and requested a conciliation conference. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 16 October 2025. I presided over the conciliation conference.

4. 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 for the amended DA and granting development consent to the amended DA subject to conditions.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

8. I have carried out the required jurisdictional check: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]. For the reasons set out below, 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.

Owners consent

9. I am satisfied that owners’ consent has been provided for the DA, found in the Class 1 application.

Community notification and objections

10. The Respondent notified the DA between 28 June 2024 to 11 July 2024. No submissions were received.

Canterbury-Bankstown Local Environmental Plan 2023

11. The site is zoned R4 High Density Residential under the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP). The proposed development for multi-dwelling housing is permitted with consent and the parties’ have had regard to the objectives of the zone.

12. The parties agree and I accept that the following applicable CBLEP provisions are met:

13. Clause 2.6 permits subdivision with consent. The proposal seeks consent for strata subdivision.

14. Clause 2.7 permits demolition with consent, as proposed within the amended DA.

15. Clause 4.3 height of buildings applies to the site and prescribes a maximum building height of 8.5m. The amended DA reaches a maximum of 8.03m.

16. Clause 4.4 floor space ratio (FSR) applies and prescribes a maximum of 0.75:1. The proposed FSR is 0.49:1.

17. Clause 6.2 earthworks applies to the amended DA. The DA is accompanied by Stormwater Plans prepared by Vanguard Consulting Engineers dated 16 October 2025 (stormwater plans), which include sediment controls, and a waste management plan. There is no evidence of contamination. Appropriate conditions of consent have been included to adequately manage the proposed earthworks. I accept the parties’ agreement that the amended DA meets the provisions as detailed in the jurisdictional statement and conditions of consent.

18. Clause 6.3 stormwater management applies. The amended DA is accompanied by stormwater plans that avoid adverse impacts from stormwater to adjoining properties through the use of on-site stormwater detention and rainwater tanks. The parties agree and I accept that the stormwater system has been designed having regard to the water sensitive urban design principles detailed in the clause.

19. Clause 6.9 essential services applies. The amended DA includes details of the proposed vehicular access and stormwater services. All other relevant services currently service the site.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The parties agree that the proposal does not change the use of the site, the site has a long history of residential use and there is no reason to suspect the site is contaminated. Accordingly, the parties agree and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

State Environmental Planning Policy (Sustainable Buildings) 2022

14. The parties agree and I accept that the amended DA is accompanied by an amended BASIX Certificate that meets the provisions of SEPP Sustainable Buildings (including s 2.1 embodied emissions), and s 27 of the EPA Reg.

State Environmental Planning Policy (Transport and Infrastructure) 2021

15. Section 2.48 applies to the proposed development. The parties agree that the proposal was referred to the relevant electrical supply authority. No objections were raised. The relevant provisions have therefore been satisfied.

Conclusion

16. 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.

17. 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.

18. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

19. The Court orders:

20. The Applicant is to pay the Respondent’s costs thrown away in the agreed amount of $2,000 as a result of the amendments of the Amended Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

21. The appeal is upheld.

22. Development consent is granted to Development Application No. DA-606/2024 (as amended) for the demolition of existing structures and construction of three attached multi-dwellings with strata subdivision at 65 Yangoora Road, Lakemba, subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

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Annexure A (482 KB, pdf)