Fandakis v Canterbury-Bankstown Council

Planning framework

1. The site is located within the R4 High Density Residential zone identified in the Canterbury Local Environmental Plan 2012 (CLEP), which permits boarding house development with consent.
2. The objectives of the R4 zone are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
3. A maximum height of buildings development standard of 18m applies to the site, according to cl 4.3 of the CLEP, and the proposed development is around 5m below this height.
4. Clause 4.4 of the CLEP establishes a maximum floor space ratio (FSR) for the site of 1.6:1, with which the proposed development complies. The proposed development does not seek to take up the benefit of the bonus FSR of 0.5:1 permitted by cl 29(1)(c)(i) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).
5. The proposal is subject to the SEPP ARH, and it is common ground between the parties that the proposal complies with the following standards at cl 29 that cannot be used to refuse consent:

• Floor space ratio;
• Building height;
• Private open space;
• Parking;
• Accommodation size.

1. Clause 29(1) and (2) of the SEPP ARH is in the following terms: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than - (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted - the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register - the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus - (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds - (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area) - (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if - (i) in the case of development carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least - (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. …
2. The Respondent contends that the landscape treatment to the front setback is not compatible with the streetscape in the area and so the Court is not constrained by the 'must not refuse' provision at cl 29(2)(b) of the SEPP ARH.
3. For this reason, and notwithstanding those aspects of compliance with cl 29 of the SEPP ARH, the Respondent considers the proposal an overdevelopment that is out of character with the local area as it offends the objectives and requirements of the CLEP and so fails to meet the 'character test' set out in cl 30A of the SEPP ARH, and consent must not be granted.
4. Clause 30A of the SEPP ARH is in the following terms: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

The Canterbury Local Environmental Plan is amended

1. It is commonly held by the parties that Amendment No.16 to the CLEP came into effect on 20 September 2019, as did Amendment No.5 of the Canterbury Development Control Plan 2012 (CDCP).
2. The development application was lodged on 2 August 2019, and the savings provision contained at subcl 1.8A(2) of the amended CLEP provides, relevantly: A development application made (but not finally determined) before the commencement of Canterbury Local Environmental Plan 2012 (Amendment No 16) for development on land to which that Plan applies is to be determined and have effect as if that Plan had not been made.
3. Of particular relevance to this application is cl 4.1C of the CLEP which is in the following terms: 4.1C Minimum lot sizes for boarding houses (1) The objectives of this clause are as follows - (a) to ensure that lots for boarding houses are of sufficient size to accommodate boarding houses, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas, (b) to minimise any likely adverse impact of the development on the amenity of the area, (c) to require the consolidation of 2 or more lots, where an existing lot is inadequate in terms of its area or width. (2) Despite any other provision of this Plan, development consent must not be granted to development for the purpose of a boarding house on a lot in a zone specified in Column 1 of the table to this subclause unless - (a) the area of the lot is equal to or greater than the area specified for that zone in Column 2, and (b) the width of the lot at the front building line is equal to or greater than the width specified for that zone in Column 3. Column 1 Column 2 Column 3 … … … Zone R4 High Density Residential 1,000 square metres 20 metres

The amended Canterbury Local Environmental Plan is considered

1. The parties agree that the site is compromised, and the Respondent acknowledges the application is deserving of some latitude. However, according to the Respondent, the Applicant seeks to 'overplay' its reliance on the isolation of the site, seeking dispensation on controls in respect of setback, height and the like.
2. It is also commonly held that the site was isolated some time ago by virtue of the two residential flat buildings to its west and south and well in advance of the CLEP being adopted.
3. Further, the parties agree that the site fails to achieve the site frontage or the site area required of it by cl 4.1C(2) of the CLEP which applies to boarding houses. Similarly, the parties agree that the terms of the savings provision at cl 1.8A(2) of the CLEP apply as the application was not finally determined at the time of the adoption of Amendment No.16 to the CLEP on 20 September 2019.
4. However, the parties disagree in two respects: 1. Firstly, the effect of the savings provision at cl 1.8A of the CLEP on the application of cl 4.1C in respect of site frontage and site area; and 2. Secondly, the application of the provisions of Section C7 of the CDCP which are also subject to a savings provision found at Section A1.9 of the CDCP.
5. According to the Respondent, while the application was lodged with the Council in August 2019 and the control at cl 4.1C was not in force, it was imminent and certain and for this reason, should be given weight by the Court in its evaluation, as it was by the Court in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 (Maygood), Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146 and Architecture Design Studio (NSW) Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 1398 (Architecture Design Studio).
6. The Applicant's position, simply put, is that the savings provision at cl 1.8A of the CLEP applies to stay the application of the control at cl 4.1C of the CLEP, just as the provisions of the CDCP which were given effect by the adoption of Amendment No.5, do not apply by the savings provision at Section A1.9 of the CDCP.
7. In support of this, the Applicant cites recent decisions of the Court such as EACT Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 1289 and Ghazi Al Ali Architect Pty Ltd v Canterbury Bankstown Council [2020] NSWLEC 1487 which, it submits, is consistent with the position of Dixon SC in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 (Alamdo).
8. Furthermore, Mr To, counsel for the Applicant, urges the Court to carefully consider the precise wording of the savings provisions at play in the authorities relied on by the parties, including the guidance to be gleaned from Maygood.
9. Mr To submits that the particular wording of the savings provision at cl 1.8A in this case is distinct from that in Terrace Towers Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 (Terrace Towers) as it contains no requirement for the Court to assume Amendment 16 of the CLEP achieves the status of a 'proposed instrument' by virtue of exhibition or consultation that would trigger consideration under s 4.15(1)(a)(ii) of the EPA Act.
10. Instead, the wording of the savings provision in this case instructs that the application must proceed on the assumption that Amendment 16 has not been made.
11. Similarly, amendments to the CDCP are saved by operation of Section A1.9 of the CDCP.
12. The Respondent submits that a 'draft DCP' is properly a matter of consideration under public interest pursuant to s 4.15(1)(e) of the EPA Act, and where a draft local environmental plan and development control plan pertain to the same subject matter, weight should be given to both, as shown in Aldi Foods Pty Limited v Holroyd City Council (2004) 139 LGERA 259; [2004] NSWLEC 253.

The provisions of cl 4.1C are set aside

1. The savings provision directs me to determine the application as if the amended CLEP had not been made. I accept, as noted by Dixon SC in Alamdo, that the text of the savings provisions in this matter is different to that in Terrace Towers, which required the Court to consider the application "as if this plan had been exhibited but had not been made."
2. The stream of case law put to me as being most relevant to the application of the savings provision contains important differences in phrasing as to whether a Plan had been 'exhibited', 'made', or 'commenced'.
3. While the Respondent relies on the Court's decision in Architecture Design Studio, I consider the circumstances of this case to be distinct in one important aspect. Unlike the subject site, the site in Architecture Design Studio was located in an area that had recently been rezoned R4 and it was agreed that the area was undergoing transition.
4. In this matter, while the same may be said of the wider locality, the experts agree that the immediate vicinity is not likely to change.
5. The relevance of the agreed evidence is that, whereas in Architecture Design Studio I found the CLEP to be of some weight, that weight was limited in its effect to the impact of the controls on the future character emerging in an area that was agreed to be undergoing transition.
6. In this case, while it is agreed that the area is in transition, it is also agreed that the area in the immediate vicinity of the site is not. Residential flat buildings to the west, south and east are, because of the particular tenure arrangement of each, unlikely to be redeveloped to gain the benefit of the R4 zone.
7. For this reason, I accept the Applicant's submission that Amendment No.16 of the CLEP should be set aside, and I should determine the application before the Court as if the amendment had not been made.
8. Furthermore, as the immediate vicinity is unlikely to change, I also find the CLEP, to the extent it can be said to have been imminent and certain at the time the application was lodged with the Council, has no work to do in informing the Court as the future character within the vicinity of this site.
9. Provisions dealing with isolated sites are found in Part C4 (Residential flat buildings) and Part C7 (Boarding Houses) of the CDCP. Objectives and relevant controls found in both sections are identical and provide: "C4.3.1.2 Isolated Sites Isolation of sites occurs where a property that adjoins a development site would be narrower or smaller than required to be developed under Canterbury LEP. Consequently the isolated site would be incapable of accommodating the form of redevelopment envisaged by the planning controls. Objectives O1 To ensure that land adjoining a development site is not left sterilised or isolated so that it is incapable of being reasonably developed under the applicable controls. O2 To encourage the development of existing isolated sites in a manner that responds to the sites, context and constraints and maintains high levels of amenity for future occupants and neighbours. … C5 The development of existing isolated sites is not to detract from the character of the streetscape. C6 Isolated sites should achieve a satisfactory level of residential amenity for its occupants and those on adjoining properties"
10. The Applicant submits that the standard expected by Control C5 for development on an isolated site is not one of enhancing or contributing to the streetscape, but one that does not detract from the character of the streetscape.
11. Likewise, Mr Moroz, expert planner for the Applicant, is of the view that emphasis should fall on the term 'reasonably' in Objective O1 of Part C, Section 4.3.1.2, and a strict application of the setbacks required by, for example, Part C, Section 7.3.2 of the CDCP would have the effect of sterilising the land and so impede the potential for the site to be 'reasonably' redeveloped as envisaged by the controls in an R4 zone.
12. I note here that the subject of the term 'reasonably' in objective O1 is 'land adjoining a development site', and not the site the subject of development which is the subject of objective O2 that seeks development 'in a manner that responds to the sites, context and constraints and maintains high levels of amenity…".
13. While of no consequence, it should not go unremarked that I believe the comma after the word 'sites' in objective O2 which would appear to separate the sites' from 'context and constraints' to be a typographical error that should read, in effect, that it is the site's context and constraints that should be responded to in a manner that maintains high levels of amenity.
14. Similarly, the level of amenity expected to result from Control C6 is one that is 'satisfactory', not superior.
15. Mr To submits that the effect of the savings provision at Section A1.9 of the CDCP is to set aside application of Part C7 of the CDCP.
16. However, reference to Part C7 of the CDCP is also not required on factual grounds. These grounds are: 1. Firstly the area determining existing character is agreed by the experts to comprise the residential flat buildings at No. 448 and No. 436 Canterbury Road, and No. 7 Vicliffe Avenue; and 2. Secondly, given evidence that as No. 448 Canterbury Road and No.7 Vicliffe Avenue are strata title and No.436 Canterbury Road is public housing in the ownership of the State government, the character of the immediate area is likely to remain unchanged.

Whether the design of the development is compatible with the character of the local area

1. The parties agree that while the contentions are expressed separately and identified as Contention 3 (Setback), Contention 4 (Character and streetscape), Contention 5 (Bulk and scale) and Contention 6 (Landscape treatment), they are essentially 'a package', and all of which must be considered together in respect of 'character'.
2. The wording of cl 30A of the SEPP ARH requires the consent authority, or in this case the Court exercising the functions of the Council as the consent authority on appeal, to take into consideration whether the design of the development is compatible with the local area (my emphasis).
3. It is not worded as a prohibition on the grant of consent, and so I accept that even if I conclude that the design of the development is not compatible with the character of the local area, consent is not precluded by that fact alone.
4. The parties adopt the meaning of the term 'compatibility' as it is described in the planning principle at [22]-[31] of Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 (Project Venture).
5. According to Mr Moroz, while the character of Canterbury Road and Vicliffe Avenue will invariably present two different characters, the drawings (Exhibit A, D-0007) indicate a character that is compatible, and in harmony, with, but not the same as, the existing character of both Canterbury Road and Vicliffe Avenue.
6. In particular, the height of the proposed development is well below the maximum permissible height under cl 4.3 of the CLEP of 18m, with a ridgeline that is approximately 1m higher when considered alongside the existing form of the No.448 Canterbury Road residential flat building.
7. When viewed in context with No.7 Vicliffe Avenue, the Applicant submits that the ridgeline of the proposed development is in the order of 500mm higher, and the elevation is sufficiently articulated to address Part C, Section 4.3.2.4 of the CDCP and permit a depth of 35m.
8. In the alternative, Ms McCaffrey, expert planner for the Respondent, considers the more shallow pitch of the proposed roof form to be distinct from the steeper pitch of the adjoining properties, which results in a higher eaves line and an additional storey when compared to No.448 Canterbury Road. When viewed in its context, this height exacerbates the narrowness of the proposal which is jarring and inconsistent with adjoining development.
9. The parties agree that development on the site, if it were to comply with setback controls in Part C, Section 4.3.2.3 of the CDCP of 4m to the side boundary adjoining No.448 Canterbury Road, and 5.5m to the secondary frontage of Vicliffe Avenue, would result in a development of just 506mm, or just over half a metre, in width.
10. On this basis, the parties accept that requiring complying setbacks would have the effect of sterilising the site for any development.
11. That said, the parties have not agreed what acceptable setbacks are precisely, except for a numerical value in respect of the front setback to Canterbury Road.
12. While this front setback is less than the 9m setback required by CDCP, the parties are agreed that a 6m setback is appropriate in the circumstances of the case as it substantially aligns that of No.448 Canterbury Road, and results in a setback that accommodates three canopy trees in deep soil.
13. Late in the proceedings, a proposal to relocate the bin storage area from the rear open space to a location in the ground floor car park suggests a greater area of landscaping to the rear setback is possible which, from level 1 and above, is a setback of 6m.
14. For the reasons set out at [54], the Applicant is of the view that side setbacks must be reduced from those shown in the CDCP for development of the site to be feasible.
15. The Applicant submits that the zero setback at ground floor is acceptable as it is to an open area, and presents to Vicliffe Avenue with vertical wire screening and climbing landscape planting, above which the building is setback.
16. The side setback of around 1m to Vicliffe Avenue, above ground floor, recognises the underlying cadastral arrangement in the area whereby properties to the south of the subject site front Vicliffe Avenue and observe front setbacks that are more generous than the side setbacks of properties fronting Canterbury Road.
17. The setback of 1.5m to the western boundary is also, according to the Applicant, not dissimilar to the setback of No.448 Canterbury Road which is 2.2-2.3m.
18. This is at odds with Ms McCaffrey's view that the reduced setback to the Vicliffe Avenue frontage, if approved, will 'set the tone' for properties in Vicliffe Avenue.
19. Furthermore, as a consequence of the reduced setback to the west, the proposed development overshadows primary living spaces at No.448 Canterbury Road, which is the subject of objector submissions (Exhibit 5), and is contrary to Part C, Section 7.6.1, Control C6 of the CDCP.
20. Additionally, the reduced setback restricts sunlight to the existing clothesline of the property at the rear, contrary to Part C, Section 7.6.1, Control C9 of the CDCP.
21. That said, the experts agree the overshadowing on No.448 Canterbury Road is not beyond that likely to be generated by a complying building envelope when the 18m height limit under cl 4.3 of the CLEP, and 4m setback is considered.
22. The Respondent contends that the proposed development is incompatible with the existing and desired streetscape, and fails to provide the minimum width of deep soil alongside boundaries.
23. However, in her oral evidence, Ms McCaffrey acknowledged that the proposed landscape treatment is an improvement from the existing condition, which is described by the Applicant as a 1.8m high solid metal fence.
24. The Applicant submits that the substantial area of concrete hardstand joining No.7 Vicliffe Avenue to the rear of No.448 Canterbury Road also forms an aspect of the existing character from which the landscaping proposed for the site does not detract, but improves upon.
25. In reply to which, the Respondent invokes Roseth SC, as he was then, in observing that "there are urban environments that are so unattractive that it is best not to reproduce them" (Project Venture at [23]).
26. As stated earlier, amendments proposed by the Applicant during the proceedings further evolved the proposal to show the bin storage relocated from the rear yard, to a location in the car park under the building.
27. While initially embraced by the Respondent as a possible solution, subject to review and final conditions of consent, the parties were subsequently unable to agree on the amendments, which also have implications for the landscaping in the rear yard.
28. As the proposed relocation of the bin storage area was not the subject of agreement after the Court reserved its decision, I will proceed to consider the bin storage option as shown annexed to Exhibit 2 and in the Exhibit A plans.
29. The essence of the dispute is whether the path from the bin storage area to the boundary should be a permeable material, as preferred by the Applicant, or concrete, which the Respondent prefers.
30. In her oral evidence, Ms McCaffrey relies on Control C2 in Part B, Section 9.6.2 of the CDCP which states concrete or similar hardstand impervious surface "on bin presentation areas".
31. According to Mr To, this control is complied with, as the bin storage area has a concrete finish. However, the proposed development also complies with Control C4 which states requirements for the path of travel for bins in the following terms: "Provide a clear travel path, minimum 1.2 m wide and maximum gradient of 1:8, between the street and the waste collection point, and ensure there are no steps or obstructions in the travel path."
32. As there is no stated preference in the material or finish for the travel path, the Applicant considers it reasonable for the path to be permeable so it is consistent with the desire for a deep soil landscape setback of 5m to the rear.
33. Relevantly, the bin storage encroaches into the 6m setback required to the rear by Part C, Section 4.3.2.3, Control C2(a) of the CDCP, which has the potential to inhibit the growth of canopy trees in the rear yard, according to Ms McCaffrey.

Conclusion

1. While I consider the invocation by Mr Moroz of Objective 1 of Part C, Section 4.3.1.2 of the CDCP to be misapplied, clearly for any development on the site to be 'economic and orderly', it must contravene, to some degree, the controls that seek to regulate setback in particular.
2. Balanced against this is the reasonable expectation for any development on the subject site to consider the amenity of the future occupants of the development on the site, and the residents of adjoining properties, such as No.448 Canterbury Road.
3. For reasons stated earlier, the particular provisions set out in cl 4.1C of the CLEP, and C7 of the DCP are set aside.
4. The question of character in the circumstances of this case is determined, primarily, on consideration of the height and setbacks evident in the proposed development.
5. While it is true that the roof pitch varies from the pitch on adjoining properties, and an additional storey is evident when compared to those same properties, the variation in roof design and the number of storeys is, in my view, within the range of what can be expected along Canterbury Road given the controls in the CLEP.
6. The height is well below that permitted by cl 4.3 of the CLEP, and I accept the Applicant's argument that the ridgeline is a reasonable datum from which to measure the similarity in height between the proposed development and existing development that adjoins on Canterbury Road and Vicliffe Avenue.
7. While it is also true that the building is a more narrow and taller form than the adjoining residential flat buildings, I do not understand there to be some ratio of width to height at which a building can be said to be jarring.
8. The setback to the landscaped area fronting Canterbury Road, and the predominant use of face brick as a material are both reflective of the built form in the immediate vicinity.
9. I also accept that the orientation of the site to Canterbury Road suggests the setback to Vicliffe Avenue is properly considered a side setback and not a front setback as otherwise predominates in the street.
10. In saying this, I consider the isolated, or compromised circumstances of the site to be a reason, along with its location on a corner intersection in an R4 zone, to extend some tolerance to the requirement for setbacks to boundaries.
11. The zero setback to Vicliffe Avenue at the ground floor is softened by vertical landscaping and, as the area is dedicated to car parking, is free of windows, balconies and the like that can result in conflicts between the public and private domain and in which circumstances a setback would generally be desirable.
12. The setback dimension of 1.5m to No. 448 Canterbury Road contributes to overshadowing of living spaces in the adjoining property, according to the Respondent.
13. As the application before the Court was lodged, but not finally determined, prior to the gazettal of Amendment 16 of the CLEP, the effect of solar access and overshadowing provisions contained in Section C7 of the CDCP have no effect.
14. However, on an assessment of the overshadowing resulting from the proposed development that is a particular concern of resident objections, I note firstly that a similar shadow profile could be expected from a development envelope that exploits the permissible height of 18m, and has a 4m setback to this boundary.
15. Secondly, I share Mr Moroz's observation that the apartments that are overshadowed have the benefit of openings and balconies that are unaffected by shadowing of the proposed development.
16. I also note that the setback at this boundary adjoins what appears to be a former driveway at No. 448 Canterbury Road, and to which the proposed development presents an external, covered and screened circulation space, and not habitable rooms that would be the source of overlooking.
17. Accordingly, after consideration of the visual and physical impacts of the proposed development, I conclude that the proposed development is compatible with the local area in accordance with cl 30A of the SEPP ARH.
18. I also conclude that the proposed front landscaped area is compatible with the streetscape and so refusal of the appeal on the ground of landscape character is precluded by operation of cl 29(2)(b) of the SEPP ARH.
19. While the landscape area to the rear setback is less than the 6m desired by Part C, Section 4.3.2.3 of the CDCP, I consider the proposed arrangement acceptable given the particular circumstances of the site which, at the rear, addresses firstly the shared driveway between adjoining residential flat buildings, and beyond this, not a dwelling, but the front yard setback to No.7 Vicliffe Avenue.
20. In this context, and given the objections raised by the Respondent to the proposed relocation of the bin storage, I accept the Applicant's preference for the path serving the bin storage to be permeable.
21. While the provisions found in Section C7 of the CDCP do not apply in this instance, an assessment of the merits of the building depth that are otherwise set out in Part C, Section 4.3.2.4 lead me to conclude the form is consistent with the terms of Control C4 which seek to limit the building depth to 25m unless deep soil courtyards are provided in which case a dept of 35m is applicable.
22. In arriving at this conclusion, I also note articulation is provided to the Vicliffe Avenue elevation through a change in materials and in the void forming the breezeway adjacent to the lift and stairs core that avoids a continuous street wall.
23. On the basis of the letter prepared by Mr Rodney Stevens of Rodney Stevens Acoustics dated 22 February 2021 (Exhibit D), I accept that the requirements set out in Table 1-1 of Exhibit D are sufficient to address potential conflicts arsing from use of the communal room, adjacent to Room 11.
24. I also accept the conclusion contained at p16 of the Statement of Environmental Effects (Exhibit B), founded upon review of the aerial photo from 1943 and a search of the Protection of the Environment Operations Act 1997 public register, that the site's history is residential and is unlikely to be contaminated for the purposes of being satisfied in respect of those matters at cl 7 of State Environmental Planning Policy No 55 - Remediation of Land.
25. The application is also accompanied by a BASIX certificate (Certificate No. 1152302M, dated 6 November 2020) prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

Conditions of consent

1. At the conclusion of the hearing, parties were directed to settle agreed conditions of consent, pending the resolution of the location of the bin storage.
2. On 16 March 2021, Conditions of consent were provided by the Respondent, which adopted the Applicant's proposed conditions except for Condition 28 which states: "No approval is granted for the siting of any substation on the site. A modification application must be lodged to Council if a substation is required. Any such application must demonstrate how the structure/ facility will be integrated into the design of the building without relying on the front setback area."
3. The Respondent considers Condition 28 necessary on two grounds: 1. Firstly, that a substation is apparently not needed; 2. Secondly, if that situation changes, the Respondent seeks to have the location to be the subject of a further application, given the potential impact on the 6m set back proposed to Canterbury Road.
4. Conditions of consent were then received from the Applicant on 24 March 2021, prepared in accordance with the Court's template. These conditions accepted the imposition of Condition 28, but proposed the removal of two notes which are standard inclusions in respect to determination by a Council, and subject to review under s 8.2 of the EPA Act.
5. As the Court's template provides on the cover page for the date of consent to be effective from the date the consent is registered on the NSW Planning Portal, I accept the deletion of note (2).
6. As note (3) provides, firstly, for review under s 8.2 of the EPA Act and, secondly, for an appeal to be brought to the Court under ss 8.7 and 8.10 of the EPA Act, I also accept this note may be deleted.
7. As the parties are agreed on the imposition of Condition 28, it is unnecessary for the Court to deal with this condition.

Orders

1. The Court orders that: 1. The Applicant is granted leave to amend its application and rely upon amended plans marked Exhibit A. 2. The appeal is upheld. 3. Development consent is granted to Development Application No.570/2019 for the demolition of existing structures, and the construction of a four-storey boarding house development at 446 Canterbury Road, Campsie, subject to the conditions of consent at Annexure A. 4. All exhibits are returned, except for Exhibits A, B and 5.

Amendments 15 April 2021 - Pursuant to UCPR r 36.17, and by the Court's own motion, the conditions of consent at Annexure A are amended to correct the Drawings listed in the table at Condition 2. 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: 15 April 2021