Neou v Canterbury-Bankstown Council

Category: Principal judgment

Parties: George Neou (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation: Counsel:
C Ters (Solicitor)(Applicant)
M Bonanno (Solicitor)(Respondent)
Solicitors:
Ters Legal (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s): 2024/474684 and 2024/474656

Publication restriction: Nil

Judgment

1. COMMISSIONER: Proceedings 2024/474684 are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Canterbury-Bankstown Council’s (Council) refusal of Development Application No. DA 13162024 (DA) for the proposed constructions of a 1.2m high front fence, a balustrade adjoining the driveway, planter boxes at the entrance of the property and landscaping in the front setback; landscaping along the southern side boundary, reduction of fill along the north-west and south-west side boundaries; and to grant consent to the use of the existing basement in relation to Lot 13 in Deposited Plan 35350 known as 7 Attunga Avenue Earlwood NSW (Site).

2. On 30 January 2025 the Court made an order for the following proceedings to be heard and determined together:

3. Proceedings 2024/252180 being an appeal against Council’s Development Control Order dated 11 June being a Stop Work Order (Order No. 2 in Sch 5, Pt 1 of s 9.34(1)(a) of the EPA Act) (DCO). The appeal was brought pursuant to s 8.18(1) of the EPA Act, and the power or function to be exercised by the Court is pursuant to s 8.18(4) of the EPA Act (DCO Proceedings).

4. Proceedings 2024/474656 being an appeal against Council’s refusal of Building Information Certificate No. BC-127/2024 (BIC) lodged with Council on 17 October 2024 (BIC Proceedings). The appeal was brought pursuant to s 8.25(1)(a) of the EPA Act and the power or function to be exercised by the Court is pursuant to s 8.25(3) of the EPA Act.

5. These proceedings being the DA Proceedings. The power or function to be exercised by the Court in determining the proceedings is ss 4.16(1) of the EPA Act.

6. All three proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

4. The Site is owned by the Applicant.

5. The Applicant is in the process of building a dwelling on the Site pursuant to the issue of a Complying Development Certificate 042/2023 on 6 June 2023 (CDC) pursuant to s 4.26(1)(a) of the EPA Act. The CDC permitted the demolition of existing dwelling house and construction of a double storey dwelling, basement parking, inground swimming pool, landscaping and associated work on the Site.

6. During the construction process the Applicant exceeded dwelling as set out in the approved CDC plans (s 4.3(1)(b) of the EPA Act).

7. On 11 June 2024 pursuant to s 9.34(1)(a) Sch 5 Pt 1 Order 1 of the EPA Act Council issued the Applicant with the DCO requiring the Applicant to Stop Work at the Site.

8. On 9 July 2024, pursuant to s 8.18(1)(a) and (3)(a) of the EPA Act the Applicant lodged the appeal against the DCO within the statutory period of 28 days.

9. On 17 October 2024 the Applicant lodged the BIC with the Council pursuant to ss 6.22(a) and 6.23(a) of the EPA Act. The BIC sought to regularise those building works which had been constructed but did not comply with the approved CDC plans (Unauthorised Works).

10. On 13 November 2024 pursuant to s 4.12(1) of the EPA Act the Applicant lodged the DA with the Council which sought prospective use of the basement at the Site and various ancillary works.

11. On 20 December 2024 the Applicant filed two appeals in the Court against the Council’s:

12. Refusal of the DA pursuant to s 8.7(1) of the EPA Act and within the time provisions of s 8.10(1)(a) of the EPA Act; and

13. The deemed refusal of the BIC pursuant to ss 8.16(1)(a) and 8.17(1) of the EPA Act, and within the time provision of s 8.16(3) of the EPA Act.

14. The Site forms a rectangular shaped allotment with a total site area of 520.2m2. The frontage of the Site is 15.24m and the side boundaries are 34.14m.

15. The Site is zoned R2 Low Density Residential under the Land Zoning Map in the Canterbury Bankstown Local Environmental Plan 2023 (CBLEP 2023).

*Figure 1 in Council’s Statement of Facts and Contentions (24/474656) p.2 ‘Aerial Photograph with the site as marked (Source: Metromaps, 2024).*The Site is marked with a red dot.

13. The immediate surrounding area is residential low density comprising a range of dwelling houses of varying architectural styles and designs. The surrounding area is undergoing transitional change from single storey dwelling houses to larger contemporary dwelling houses.

14. The Court arranged two concurrent conciliation conferences under s 34(1) of the LEC Act being for the DCO and BIC proceedings between the parties, together with a mediation for the DA proceedings pursuant to s 26 of the Civil Procedure Act 2005 (CP Act). The conciliation conferences and the mediation were held on 11 February, 19 March, 15 April, 2 and 20 May 2025. The Court terminated the mediation held under s 26(1) of the CP Act, and pursuant to s 34AA(1) ordered a conciliation and hearing for the DA on 28 May 2025. I presided over the conciliation conferences, the mediation and the s 34AA conciliation and hearing of these matters.

15. At or after the conciliation conferences, the mediation and the s 34AA conciliation (the matter settled prior to a hearing) the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved:

16. The Council revoking the DCO with the consequence that the Applicant filed a Notice of Discontinuance on 23 May 2025 in the DCO proceedings;

17. The appeals in the BIC and DA proceedings being upheld;

18. Council being directed to issue the BIC; and

19. The Court granting consent to the DA.

Legislation (BIC)

Environmental Planning and Assessment Act 1979

6.25 Issue, nature and effect of building information certificate

(cf previous ss 149D, 149E)

(1) A building information certificate is to be issued by a council only if it appears that—

(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993—

(i) to order the building to be repaired, demolished, altered, added to or rebuilt, or

(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

(2) A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4).

(3) A building information certificate operates to prevent the council—

(a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and

(b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,

in relation to matters existing or occurring before the date of issue of the certificate.

(4) A building information certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate—

(a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and

(b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,

in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear.

(5) However, a building information certificate does not operate to prevent a council from making a development control order that is a fire safety order or a building product rectification order (within the meaning of the Building Products (Safety) Act 2017).

(6) An order or proceeding that is made or taken in contravention of this section is of no effect.

8.25 Appeals with respect to building information certificates

(cf previous s 149F)

(1) An applicant—

(a) who is dissatisfied with a council’s refusal to issue a building information certificate under Part 6, or

(b) who is dissatisfied with a council’s failure to issue a building information certificate within the period prescribed by the regulations, or

(c) who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate,

may appeal to the Court.

(2) The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (1).

(3) On hearing the appeal, the Court may do any one or more of the following—

(a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

……

16. 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. The parties’ decision involves the Court exercising the function:

17. To uphold the BIC appeal, and direct the Council to issue the BIC in Annexure A pursuant to s 6.25(1)(a) of the EPA Act.

18. To uphold the DA appeal, and grant consent to the DA subject to Annexure B pursuant to s 4.16(1)(a) of the EPA Act.

19. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how each jurisdictional prerequisite has been satisfied:

20. As set out above, the Applicant is the owner of the Site and authorised to lodge both the BIC and DA, and also commenced the proceedings in both matters.

21. During the conciliation/mediation conferences the Applicant provided the following documents which were formally filed on 16, 19 and 27 May 2025. The documents were provided as further information in the BIC proceedings, and as amendments to the DA (with the consent of Council):

(a) Amended Plans

| Approved plans (to be approved) | | Plan No. | Rev. | Plan title | Drawn by | Dated | | DA2001 | E | Site Plan | DBG Group | 5/5/2025 | | DA2002 | H | Basement Plan | DBG Group | 13/5/2025 | | S100 | 0 | Backfill Detail Job No: V241370 | Vanguard | 2/5/2025 | | DA2003 | E | Ground Floor Plan | DBG Group | 5/5/2025 | | DA2004 | E | First Floor Plan | DBG Group | 5/5/2025 | | DA2005 | G | Roof Plan | DBG Group | 5/5/2025 | | DA2006 | H | Unauthorised Works (CDC Approved vs As Built) | DBG Group | 13/5/2025 | | DA2007 | E | Basement Plan (CDC Approved vs As Built vs DA) | DBG Group | 13/5/2025 | | DA2008 | C | Ground Floor (CDC Approved vs As Built vs DA) | DBG Group | 5/5/2025 | | DA2009 | C | First Floor (CDC Approved vs As Built vs DA) | DBG Group | 5/5/2025 | | DA3001 | C | Attunga Ave Streetscape (North-East) Elevation | DBG Group | 5/5/2025 | | DA3002 | D | South-West Elevation | DBG Group | 5/5/2025 | | DA3003 | D | North-West Elevation | DBG Group | 5/5/2025 | | DA3004 | D | South-East Elevation | DBG Group | 5/5/2025 | | DA3005 | F | Section A-A | DBG Group | 5/5/2025 | | DA3006 | F | Section B-B | DBG Group | 5/5/2025 | | DA4001 | B | Cut & Fill Diagram | DBG Group | 3/3/2025 | | DA4002 | C | Building Height Plane Diagram | DBG Group | 5/5/2025 | | DA4003 | C | Wall Height Plane Diagram | DBG Group | 5/5/2025 | | DA4004 | F | Privacy Section Diagrams | DBG Group | 5/5/2025 | | DA4005 | B | Boundary Fence/Retaining Wall Details | DBG Group | 3/3/2025 | | DA4006 | B | Waste Management Plan | DBG Group | 3/3/2025 | | DA5001 | G | Area Calculation Diagrams | DBG Group | 5/5/2025 | | DA7001 | B | Schedule of External Finishes, Materials and Colours | DBG Group | 5/5/2025 | | Ground Condition Assessment Report | Ground Consult | 7/4/2025 | | Contamination Report | IROS Australia | 25/4/2025 | | Addendum to Contamination Report | IROS Australia | 8/5/2025 | | Statement of Environmental Effects | Maximus Developments | 1/5/2025 | | BASIX Certificate Number 793360S_02 | | 6/5/2025 |

(b) Together with:

1. (A) DA6001 Rev D Shadow Analysis Diagrams dated 5/52025 by DBG.
2. (B) Vanguard Consulting Engineers’ Stormwater Drainage Diagrams Ref V241370:
3. Cover Sheet Rev C dated 5/5/2025
4. Drawing No. SW001 Rev C General Notes dated 6/5/2025
5. Drawing No. SW100 Rev C As built Basement Drainage Plan dated 6/5/2025
6. Drawing No. SW101 Rev C Ground Floor Drainage Plan dated 6/5/25
7. Drawing No. SW102 Rev C First Floor Drainage Plan dated 6/5/25
8. Drawing No. SW103 Roof Drainage Plan Rev C dated 6/5/25
9. Drawing No. SW200 Post-Development Catchment Plan Rev C dated 6/5/25
10. Drawing No. SW300 Rev C Stormwater Details Sheet 1 dated 6/5/25
11. Drawing No. SW400 Rev C Erosion and Sediment Control Plan dated 6/5/25
12. Drawing No. SW401 Rev C Erosion and Sediment Control Details dated 6/5/25
13. (C) Drawing No. L.01 Landscape Concept by Outside Design Group dated 27/3/25
14. (D) Drawing No. L.02 Landscape Area Diagrams by Outside Design Group dated 3/01/24
15. (E) Vanguard Consulting Engineers Structural Appraisal for the basement over-excavation dated 7/2/25
16. (F) 3D Renders prepared by Outside Design Group (undated) (including Camera Location Plan; North view; North-west view; West view; South-west view; South View and Scenes 7 – 11).

BIC Proceedings

18. In relation to the BIC proceedings, the parties are in agreement that the Court can make an order in accordance with s 8.25(3)(a) of the EPA Act to direct the Council issue the BIC in relation to the works which are highlighted in pink in the DBG Plans in Annexure A (relevantly Plan DA 2006 Rev H Unauthorised Works (CDC Approved vs As Built) dated 13/5/25; Plan DA 2007 Rev E Basement Plan (CDC Approved vs As built vs DA) dated 13/5/25 and Plan DA 2008 Rev C First Floor 9CDC Approved vs As Built vs DA) dated 5/5/25), and includes the following as-built works on the Site:

19. In relation to the Basement and Ground Floor:

(a) Extension of Basement size; (b) Mechanical turntable for motor vehicles; (c) Pool pump/solar battery storage room, and mechanical plant room; (d) Reconfiguration of internal stair (2); (e) Widening of lift corridor; mechanical shaft; (f) 500mm thick ground floor concrete slab; (g) Stormwater works; (h) Reconfiguration and enlargement of swimming pool including deletion of bar; (i) Reconfiguration of rear steps from alfresco; (j) Retaining walls boundary fencing; (k) Change in soil levels.

19. The works as listed in the BIC at par [18] above explicitly exclude those works properly carried out pursuant to the CDC, and those works which will be carried out under the DA consent. Therefore the BIC will only apply to part of the building consistent with the power in s 6.26(1) of the EPA Act.

20. The Council has confirmed that it does not propose to make any order or take any proceedings of the type identified in s 6.25(1)(a) of the EPA Act in relation to the items listed in par [17(2)(a) and (b)]which are included in the BIC.

21. The Court can therefore make the orders in accordance with s 8.25(3)(a) of the EPA Act.

22. The parties further agree that the contentions as set out in the Council’s SOFAC have been resolved and that there are no other jurisdictional matters required to be addressed.

23. For the reasons set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I shall uphold the appeal, and direct the Council to issue the BIC in accordance with s 8.25(3)(a) of the EPA Act.

DA Proceedings

24. The CDC was approved and carried out with regard to s 4.12(5) of the EPA Act – those parts of the works which are in compliance with the CDC were constructed with consent.

25. Those parts of the proposed works which are not in compliance with the CDC require consent by the Council pursuant to s 4.2(1) of the EPA Act.

26. During the s26 mediation conferences, and subsequently the s 34AA conciliation conference for the DA on 28 May 2025, the Applicant filed the amended documents as set out in pars [17(2)(a) and (b)] above. The DBG amended architectural plans (particularly Plans DA2006-DA3006) provide a comparison of the CDC Approved vs As-Built vs DA works as follows:

27. Black line – as built (CDC and unauthorised building works)

28. Grey line or dark pink line – proposed to be built (DA)

29. Light pink shading – unauthorised building works (BIC).

30. In summary, the Amended Plans propose the following works:

31. Three areas blocked off within the confines of the basement. The blocked off areas reduce the amount of space available for use in the basement.

32. The existing agricultural line within the basement is identified.

33. The proposed Powder Room and storage cupboard removed from the basement.

34. The mechanical plant and air conditioning condenser units relocated in the basement.

35. The mechanical turntable for motor vehicles adjusted to reflect the as-built location of it.

36. The pergola removed from the alfresco area and swimming pool on ground floor.

37. Privacy screens and frosted glass incorporated around the alfresco area and swimming pool on the ground floor.

38. Minor presentation adjustments to the exterior of the dwelling.

39. The parties agree that all contentions have now been resolved by the Amended Plans and Documents set out in par [17(2)(a) and (b)] above for the following reasons:

40. The size of the basements has been reduced by the internal partial closure of three rooms, one of which partly protrudes past the front building line. Sufficient space has been kept in those three rooms to permit access for stormwater drainage maintenance.

41. The inclusion of the privacy screens at the rear of the dwelling (swimming pool and alfresco area) results in the reduction of privacy impacts to the adjoining properties.

42. The proposed screen planting along the southern and western boundaries also reduced privacy impacts on the adjoining properties.

43. A comprehensive schedule of works has been provided in the updated Statement of Environmental Effects by Maximus Developments dated 1 May 2025.

44. The amendments to the DA application have been justified on environmental planning grounds.

45. Inconsistencies on all sets of plans have been resolved.

46. The jurisdictional prerequisites set out in s 4.15(1)(a) of the EPA Act have been resolved as follows:

47. ”(i) any environmental planning instrument, and”

(a) State Environmental Planning Policy (Resilience and Hazards) 2021: Council records reveal that the Site has only been used for residential purposes, however, fill has been placed on the Site. The IROS dated 25 April 2025 concerning the fill placed on the northern boundary confirms that no contamination was detected in the fill. The parties have considered the state of the Site under s4.6(1)(a) of the said SEPP, and determined that the Site is fit for purpose. (b) State Environmental Planning Policy (Biodiversity and Conservation ) 2021 does not apply as the proposed development did not require the removal of vegetation. (c) State Environmental Planning Policy (Sustainable Buildings) 2022: this policy has been met by BASIX Certificate No. 793360S dated 6 May 2025. (d) In accordance with Canterbury-Bankstown Local Environmental Plan 2023 the Site is zoned R2 Low Density Residential, the objectives of which are:

To promote for the housing needs of the community within a low density residential environment.

To ensure suitable landscaping in the low density residential environment.

To minimise and manage traffic and parking impacts.

(e) And the objectives have been considered by the parties in accordance with cl 2.3(2) of CBLEP 2023. (f) Further in relation to CBLEP 2023:

(i) The building height complies with the relevant maximum height of building (cl 4.3). (ii) The building complies with the FSR control pursuant to cl 4.4. (iii) The building complies with cl 6.1 of CBLEP 2023 in relation to being mapped as class 5 Acid Sulfate Soils as the DA will not lower the water table on any adjacent land to the Site. (iv) The minor earthworks required for the Site have been satisfactorily considered by the parties in accordance with s 6.2. (v) Pursuant to cl 6.3 the amended DA includes amended stormwater plans that demonstrate appropriate measures to maximise the use of water permeable surfaces, harvest rainwater for use as an alternative to mains water, and avoids significant adverse impacts of stormwater runoff. (vi) In accordance with s 6.9 the essential services are available to the Site.

30. The jurisdictional prerequisites set out in s 4.15(1)(d) and (e):

(i) Subs(1)(d): On 21 November 2024 to 4 December 2024 the DA was notified in accordance with the Canterbury-Bankstown Community Participation Plan 2019. There were 3 written objections. On 11 February 2025 I heard from the objectors on site, after having perused their written objections. The Council considers that the Amended Plans do not require re-notification given the minor nature of the revisions made to the original plans. (ii) The Council has taken into account submissions made by the Objectors. The parties agree that the objections of the neighbours have been met for the following reasons: (iii) (A) The introduction of louvres to the rear of the building and the screen planting along the rear boundary has improved and reduced any privacy impact to the neighbouring lots. (iv) (B) The parties agree that the proposed landscape area on the Site is sufficient and includes a variety of different species of plants. (v) (C) The proposed building envelope complies with all the required setbacks and will be built below the maximum permissible height plane.

1. Sub(1)(e): the parties agree that the development is in the public interest.

2. For the reasons set out above, I agree that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

3. I am not required to consider (and I have not so considered) the merits issues in relation to the DA Proceedings.

4. In Proceedings No. 2024/474656 the Court notes that:

5. The Applicant provided the following further plans and documents in support of its application:

(a) Amended Plans

| Approved plans (to be approved) | | Plan No. | Rev. | Plan title | Drawn by | Dated | | DA2001 | E | Site Plan | DBG Group | 5/5/2025 | | DA2002 | H | Basement Plan | DBG Group | 13/5/2025 | | S100 | 0 | Backfill Detail Job No: V241370 | Vanguard | 2/5/2025 | | DA2003 | E | Ground Floor Plan | DBG Group | 5/5/2025 | | DA2004 | E | First Floor Plan | DBG Group | 5/5/2025 | | DA2005 | G | Roof Plan | DBG Group | 5/5/2025 | | DA2006 | H | Unauthorised Works (CDC Approved vs As Built) | DBG Group | 13/5/2025 | | DA2007 | E | Basement Plan (CDC Approved vs As Built vs DA) | DBG Group | 13/5/2025 | | DA2008 | C | Ground Floor (CDC Approved vs As Built vs DA) | DBG Group | 5/5/2025 | | DA2009 | C | First Floor (CDC Approved vs As Built vs DA) | DBG Group | 5/5/2025 | | DA3001 | C | Attunga Ave Streetscape (North-East) Elevation | DBG Group | 5/5/2025 | | DA3002 | D | South-West Elevation | DBG Group | 5/5/2025 | | DA3003 | D | North-West Elevation | DBG Group | 5/5/2025 | | DA3004 | D | South-East Elevation | DBG Group | 5/5/2025 | | DA3005 | F | Section A-A | DBG Group | 5/5/2025 | | DA3006 | F | Section B-B | DBG Group | 5/5/2025 | | DA4001 | B | Cut & Fill Diagram | DBG Group | 3/3/2025 | | DA4002 | C | Building Height Plane Diagram | DBG Group | 5/5/2025 | | DA4003 | C | Wall Height Plane Diagram | DBG Group | 5/5/2025 | | DA4004 | F | Privacy Section Diagrams | DBG Group | 5/5/2025 | | DA4005 | B | Boundary Fence/Retaining Wall Details | DBG Group | 3/3/2025 | | DA4006 | B | Waste Management Plan | DBG Group | 3/3/2025 | | DA5001 | G | Area Calculation Diagrams | DBG Group | 5/5/2025 | | DA7001 | B | Schedule of External Finishes, Materials and Colours | DBG Group | 5/5/2025 | | Ground Condition Assessment Report | Ground Consult | 7/4/2025 | | Contamination Report | IROS Australia | 25/4/2025 | | Addendum to Contamination Report | IROS Australia | 8/5/2025 | | Statement of Environmental Effects | Maximus Developments | 1/5/2025 | | BASIX Certificate Number 793360S_02 | | 6/5/2025 |

(i) Together with:

1. (A) DA6001 Rev D Shadow Analysis Diagrams dated 5/52025 by DBG.

2. (B) Vanguard Consulting Engineers’ Stormwater Drainage Diagrams Ref V241370:

3. Cover Sheet Rev C dated 5/5/2025

4. Drawing No. SW001 Rev C General Notes dated 6/5/2025

5. Drawing No. SW100 Rev C As built Basement Drainage Plan dated 6/5/2025

6. Drawing No. SW101 Rev C Ground Floor Drainage Plan dated 6/5/25

7. Drawing No. SW102 Rev C First Floor Drainage Plan dated 6/5/25

8. Drawing No. SW103 Roof Drainage Plan Rev C dated 6/5/25

9. Drawing No. SW200 Post-Development Catchment Plan Rev C dated 6/5/25

10. Drawing No. SW300 Rev C Stormwater Details Sheet 1 dated 6/5/25

11. Drawing No. SW400 Rev C Erosion and Sediment Control Plan dated 6/5/25

12. Drawing No. SW401 Rev C Erosion and Sediment Control Details dated 6/5/25

13. (C) Drawing No. L.01 Landscape Concept by Outside Design Group dated 27/3/25

14. (D) Drawing No. L.02 Landscape Area Diagrams by Outside Design Group dated 3/01/24

15. (E) Vanguard Consulting Engineers Structural Appraisal for the basement over-excavation dated 7/2/25

16. (F) 3D Renders prepared by Outside Design Group (undated) (including Camera Location Plan; North view; North-west view; West view; South-west view; South View and Scenes 7 – 11).

17. The parties have agreed that each party will pay its own costs of these proceedings.

18. In Proceedings No 2024/474656 the Court orders:

19. The appeal is upheld;

20. Canterbury-Bankstown Council is directed to issue within fourteen (14) days of the making of this order a Building Information Certificate in accordance with Building Information Certificate No. BC-127/2024 for the property at Lot 13 in Deposited Plan 35350 known as 7 Attunga Avenue Earlwood NSW 2206 as highlighted in pink on the plans in Annexure A Condition 1 being relevantly DBG Plan DA 2006 Rev H Unauthorised Works (CDC Approved vs As Built) dated 13/5/25; DBG Plan DA 2007 Rev E Basement Plan (CDC Approved vs As built vs DA) dated 13/5/25 and DBG Plan DA 2008 Rev C First Floor 9CDC Approved vs As Built vs DA) dated 5/5/25.

21. In Proceedings No. 2024/474684 the Court notes that:

22. Canterbury-Bankstown Council as the relevant consent authority has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA 1316/2024 in accordance with the following documents:

(a) Amended Architectural Plans

| Approved plans (to be approved) | | Plan No. | Rev. | Plan title | Drawn by | Dated | | DA2001 | E | Site Plan | DBG Group | 5/5/2025 | | DA2002 | H | Basement Plan | DBG Group | 13/5/2025 | | S100 | 0 | Backfill Detail Job No: V241370 | Vanguard | 2/5/2025 | | DA2003 | E | Ground Floor Plan | DBG Group | 5/5/2025 | | DA2004 | E | First Floor Plan | DBG Group | 5/5/2025 | | DA2005 | G | Roof Plan | DBG Group | 5/5/2025 | | DA2006 | H | Unauthorised Works (CDC Approved vs As Built) | DBG Group | 13/5/2025 | | DA2007 | E | Basement Plan (CDC Approved vs As Built vs DA) | DBG Group | 13/5/2025 | | DA2008 | C | Ground Floor (CDC Approved vs As Built vs DA) | DBG Group | 5/5/2025 | | DA2009 | C | First Floor (CDC Approved vs As Built vs DA) | DBG Group | 5/5/2025 | | DA3001 | C | Attunga Ave Streetscape (North-East) Elevation | DBG Group | 5/5/2025 | | DA3002 | D | South-West Elevation | DBG Group | 5/5/2025 | | DA3003 | D | North-West Elevation | DBG Group | 5/5/2025 | | DA3004 | D | South-East Elevation | DBG Group | 5/5/2025 | | DA3005 | F | Section A-A | DBG Group | 5/5/2025 | | DA3006 | F | Section B-B | DBG Group | 5/5/2025 | | DA4001 | B | Cut & Fill Diagram | DBG Group | 3/3/2025 | | DA4002 | C | Building Height Plane Diagram | DBG Group | 5/5/2025 | | DA4003 | C | Wall Height Plane Diagram | DBG Group | 5/5/2025 | | DA4004 | F | Privacy Section Diagrams | DBG Group | 5/5/2025 | | DA4005 | B | Boundary Fence/Retaining Wall Details | DBG Group | 3/3/2025 | | DA4006 | B | Waste Management Plan | DBG Group | 3/3/2025 | | DA5001 | G | Area Calculation Diagrams | DBG Group | 5/5/2025 | | DA7001 | B | Schedule of External Finishes, Materials and Colours | DBG Group | 5/5/2025 | | Ground Condition Assessment Report | Ground Consult | 7/4/2025 | | Contamination Report | IROS Australia | 25/4/2025 | | Addendum to Contamination Report | IROS Australia | 8/5/2025 | | Statement of Environmental Effects | Maximus Developments | 1/5/2025 | | BASIX Certificate Number 793360S_02 | | 6/5/2025 |

(b) Amended Stormwater Drainage Plans prepared by Vanguard:

(i) Drawing No. V241370-SW000, Revision C, dated 6 May 2025; (ii) Drawing No. V241370-SW001, Revision C, dated 6 May 2025; (iii) Drawing No. V241370-SW100, Revision C, dated 6 May 2025; (iv) Drawing No. V241370-SW101, Revision C, dated 6 May 2025; (v) Drawing No. V241370-SW102, Revision C, dated 6 May 2025; (vi) Drawing No. V241370-SW103, Revision C, dated 6 May 2025; (vii) Drawing No. V241370-SW200, Revision C, dated 6 May 2025; (viii) Drawing No. V241370-SW300, Revision C, dated 6 May 2025; (ix) Drawing No. V241370-SW400, Revision C, dated 6 May 2025; (x) Drawing No. V241370-SW401, Revision C, dated 6 May 2025.

(c) Amended Landscape Plans prepared by Outside In Design Group:

(i) Drawing No. L-01, Revision D, dated 27 March 2025; and (ii) Drawing No. L-02, Revision C, dated 3 October 2024.

(d) 3D Renders prepared by Outside In Design Group. (e) NatHER Certificate Number 0011886330-01 dated 30 April 2025.

2. The parties have agreed that the Applicant will pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment 1979 in the sum of $4,500 within 60 days from the date of these Orders.

3. In proceedings No 2024/474864 the Court Orders;

4. The appeal is upheld;

5. Development consent is granted to Development Application No. DA 1316/2024 Lot 13 in Deposited Plan 35350 known as 7 Attunga Avenue Earlwood NSW 2206 for the expansion of the basement and vehicular turntable, the 500mm thick slabs on the ground and first floor, alterations to the dwelling including backfilling three basement rooms, landscaping, retaining walls in the northern and southern setbacks and expansion of the swimming pool, in accordance with Annexure A.

M Peatman

Acting Commissioner of the Court

Annexure A (304 KB, pdf)

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