Neomorph Projects Pty Ltd v Canterbury-Bankstown Council

Parties: Neomorph Projects Pty Ltd(Applicant)
Canterbury-Bankstown Council (Respondent)

Representation: Counsel:
T To (Applicant)
M Bonanno (solicitor) (Respondent)
Solicitors:
ZBA Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s): 2024/288182

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal by the Canterbury-Bankstown Council (the Council) of DA- 1533/2023 (the Development Application).

2. The Development Application seeks consent for the demolition of the existing cabana and garage, alterations and additions to existing dwelling including first floor extension and construction of a carport, construction of a new additional detached two storey dwelling with carport and Torrens title subdivision (the Proposed Development), on land at 14 Kerry Crescent, Roselands NSW 2196 being Lot 3 in DP 218118 (the ‘Site’).

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties. As at the date of the hearing, the parties had engaged in without prejudice discussions. As a result of the discussions and the amended Development Application the parties reached an in-principle agreement which formed the basis of the s 34 agreement before the Court. Accordingly, the parties requested that the Site visit be dispensed with and the finalisation of the matter be heard at Court which was accepted by the Court.

4. The parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to cl 38(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the class 1 appeal and grant development consent to the Proposed Development with conditions at Annexure A.

5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.

Satisfaction as to jurisdiction

6. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters.

The Site and zoning

7. The Site is described by the parties as follows:

8. is irregular in shape with an area of approximately 1,265m2. The Site has a frontage of 10.67m which splays out to 26m before reducing to a rear section with roughly parallel boundaries with a width of approximately 15.5m. The Site has an approximate depth of 80m. The Site has a natural consistent fall of about 5m from the north to south, although the rear of the Site has been largely levelled; and

9. is currently occupied by a single storey three bedroom dwelling towards the front of the Site. The Site also contains a detached brick garage, detached external storage, detached cabana and a medium size in-ground concrete pool. The existing house is setback approximately 13m from Kerry Crescent, around 1.2m from the east side boundary and a minimum of around 6.2m from the west boundary; and

10. is encumbered by a 1.8m wide drainage easement that extends from the front north west corner of the Site to the rear south east corner.

11. The Site is zoned R3 – Medium Density Residential under the Canterbury-Bankstown Local Environmental Plan 2023 (the ‘CBLEP’). Dwelling houses are permitted with development consent under this zoning.

12. The history of the Development Application is set out in the Statement.

The Statutory Controls

10. The parties agree that all of the matters contained in s 4.55 of the EPA Act that are of relevance to the proposed Development Application have been taken into consideration, and the Development Application (as amended) is acceptable, subject to the proposed conditions of consent.

11. This includes the relevant provisions of the CBLEP and the Canterbury Development Control Plan 2023. The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality; and the suitability of the site for the development have been considered by the parties and are met by the agreed position to grant consent to the amended DA.

State Environmental Planning Policies (SEPPs)

12. I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in the parties Statement at paras 21 to 29, and agree with the parties’ conclusions that no jurisdictional impediments arise pursuant to:

13. State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. State Environmental Planning Policy (Resilience and Hazards) 2021

15. State Environmental Planning Policy (Sustainable Buildings) 2022

Public Consultation

13. The Development Application was publicly notified as required and no submissions were received to be considered and as such s 4.15(1)(d) of the EPA Act has been met.

Conclusion

14. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

15. 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. 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.

Notations

16. The Court notes that:

The Canterbury-Bankstown Council as the relevant consent authority, has approved under clause 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (the ‘EPA Regulation’) the Applicant amending Development Application DA-1533/2023 in accordance with the following documents (the ‘Amended Application’):

| Item | Date | | Amended Architectural Drawings (Project K18001), prepared by Neomorph Projects Pty Ltd • Drawing Index, issue DA-01, 29/01/25; • DA-100, Site Plan-Existing, issue 1, 16/11/23; • DA-110, Existing Floor Plan, issue 1, 16/11/23; • DA-120, Existing North+West Elevation, issue 1, 16/11/23; • DA-121, Existing South+East Elevation, issue 1, 16/11/23; • DA-300, Proposed Site Plan, issue DA-04, 29/01/25; • DA-301, Stormwater Catchment Plan, issue DA-04, 29/01/25 • DA-305, Proposed Subdivision Layout, issue DA-03, 09/01/25; • DA-310, Proposed Ground Floor / Site Plan, issue DA-03, 09/01/25; • DA-321, Proposed First Floor Plan, issue DA-03, 09/01/25; • DA-340, Proposed Roof Plan, issue DA-04, 29/01/25; • DA-410, Proposed Elevations: D1 & D2, issue DA-04, 29/01/25; • DA-450, Proposed Sections, issue DA-02, 09/12/2024; • DA-450a, Driveway Sections, issue DA-03, 9/01/25; • DA-600, Shadow Diagrams: Sheet 1 – 21 June (8am-12pm), issue DA-02, 9/12/24; • DA-601, Shadows: Sheet 2 – 21 June (1pm – 4pm), issue DA-02, 9/12/24; and • DA-602, Shadows: Sheet 3 - 21 Sept + 21 Dec, issue DA-02, 9/12/24. | | | Service Protections Report prepared by A List Plumbing | 09 Jan 2025 |

Orders

17. The Court Orders that:

18. The appeal is upheld;

19. Development Application DA-1533/2023 for demolition of existing cabana and garage, alterations and additions to existing dwelling including first floor extension and construction of a carport, construction of a new additional detached two storey dwelling with carport, and Torrens title subdivision at 14 Kerry Crescent Roselands NSW 2196, is determined by the grant of consent subject to the conditions in Annexure A.

L Byrne

Acting Commissioner of the Court

Annexure A