Parnell Strathfield Pty Ltd v Canterbury-Bankstown Council

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) for a boarding house in Campsie. The land the subject of the DA comprises Lots 1 and 2 DP 901237 and is known as 15 and 17 Fourth Ave, Campsie (the Site).
2. The DA was made to the Council on 16 June 2021. When the DA had not been determined by the Council within the period after which it was taken to have been refused, on 25 November 2021 the Applicant appealed to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court's jurisdiction. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.
3. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 27 June 2022. I presided over the conciliation conference.
4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 21 June 2022 (Annexure A to the agreement, which contains the agreed conditions of consent, was lodged with the Court on 28 June 2022) and is supported by an amended Agreed Statement - Jurisdictional Prerequisites provided by the parties on 28 June 2022.
5. The agreement involves the Court exercising the functions of the consent authority in accordance with s 4.16(1) of the EPA Act by granting development consent to the DA, as amended with the agreement of the Council as consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), subject to conditions of consent. The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a development application made but not finally determined before that date: 2021 Regulation, Sch 6 Pt 1 cl 3. The DA was made before but had not been finally determined by 1 March 2022, so the EPA Regulation continues to apply to the DA.