Queen Street S.a Pty Ltd v Canterbury-Bankstown Council

Parties: Queen Street S.a Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation: Counsel:
C Gough (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)
Solicitors:
Storey & Gough (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s): 2024/293259

Publication restriction: Nil

Judgment

COMMISSIONER:

Introduction

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application (DA-598/2020) (Development Application) seeking consent for change of use from a car wash café to a charcoal chicken takeaway restaurant including an amended carparking layout and new waste storeroom on land identified as Lot 10 in Deposited Plan 1008562, known as 2 Queen Street, Revesby NSW (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Development Application was lodged with the respondent on 31 July 2020.

4. The Development Application was referred to Transport for NSW in October 2020 and again in April 2023.

5. On 26 February 2024, the Development Application was refused by the respondent.

6. On 9 August 2024, the proceedings were commenced, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. Following an initial conciliation conference arranged under s 34 of the LEC Act which was unsuccessful and terminated on 21 February 2025, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties therefore requested a second conciliation conference. The Court granted this request and a second conciliation conference was listed on 6 June 2025. I presided over this conciliation conference.

8. Amended documents were filed with the Court on 6 June 2025 (Amended Development Application) cited at [26]. The amendments can be summarised as including:

9. extending the median strip as required by Transport for NSW; and

10. reallocating carparking spaces from the car wash to the chicken shop.

11. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

12. 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.

Jurisdictional considerations

11. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

12. The applicant is the registered proprietor of the Subject Land and provided landowner’s consent to the Development Application as per the Development Application Form dated 31 July 2020.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. I accept the parties’ submission that the requirements of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because the Amended Development Application does not propose any earthworks or changes to the previously approved infrastructure on the Subject Land and the site will continue to be covered in hardstand.

Bankstown Local Environmental Plan 2015

14. Clause 1.8A of the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP) entitled “savings provisions relating to development applications”, relevantly provides that:

If a development application has been made before the commencement of this plan in relation to land to which this plan applies and the application has not been finally determined before that commencement, the application must be determined as if this plan had not commenced

15. As the Development Application was lodged on 31 July 2020 and not finally determined prior to the commencement of the CBLEP, the provisions of the (now repealed) Bankstown Local Environmental Plan 2015 (BLEP) apply to the Amended Development Application.

16. The Subject Land is zoned IN1 General Industrial under the BLEP. Accordingly, food and drink premises are permitted with consent in the IN1 zone.

17. As the Amended Development Application proposes a formal change of use to an existing building (which is in fact, already being operated as a charcoal chicken takeaway restaurant and car wash), the parties agree that the development standards set out in the BLEP do not apply, but in any event, are complied with. The parties also agree that no other provisions of the BLEP apply to the Amended Development Application.

Bankstown Development Control Plan 2015

18. At the Ordinary Meeting of 25 May 2021, Council resolved that the Canterbury-Bankstown Development Control Plan 2023 will only apply to development applications lodged on or after 23 June 2023. Therefore, the parties agree that the former Bankstown Development Control Plan 2015 (BDCP) applies to the Amended Development Application.

19. I note that the parties have considered the BDCP in relation to the Amended Development Application and are satisfied that the Amended Development Application is acceptable and can be granted subject to conditions.

Remaining matters in s 4.15(1) of the EPA Act

20. The matters set out in s 4.15(1)(b), (c), and (e) of the EPA Act are generally addressed in the Statement of Environmental Effects prepared by Mr Graeme Nichols (undated) (Class 1 Application, tab 4).

21. In relation to s 4.15(d), the Development Application as lodged, was notified between 6 and 19 August 2020. One written submission objecting to the proposed development was received in response to the notification raising concerns regarding odour, smoke affectation, traffic and safety.

22. I am satisfied that the written submission has been taken into consideration in the assessment and determination of the Amended Development Application.

23. The parties agree, and I accept that the Amended Development Application can be approved having regard to the matters set out in s 4.15(1)(b)-(e) of the EPA Act.

Conclusion

24. 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.

25. 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.

26. The Court notes that:

27. The respondent, as the relevant consent authority has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application DA-598/2020 the subject of these proceedings as shown in the following amended plans and reports:

(a) Plan No 10, Ground Floor Plan by Campbell Hill Group dated 11 February 2025; and (b) Traffic and Parking Impact Assessment by Hemanote Consultants dated 17 February 2025.

2. The applicant filed the documents outlined above with the Court on 6 June 2025.

Orders

27. The Court orders that:

28. The appeal is upheld.

29. The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the agreed sum of ($2,000) within 28 days of the date of these orders.

30. Development Application DA-598/2020, as amended, for a change of use from a car wash café to a charcoal chicken takeaway restaurant at 2 Queen Street, Revesby, is determined by the grant of consent subject to the conditions set out in Annexure A.

N Targett

Commissioner of the Court

Annexure A (337 KB, pdf)

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