Sinclair v Canterbury-Bankstown Council

Representation: Counsel:
P Vergotis (Solicitor) (Applicants)
M Bonanno (Solicitor) (Respondent)
Solicitors:
Madison Marcus Law Firm (Applicants)
Canterbury Bankstown Council (Respondent)

File Number(s): 2024/92772

Publication restriction: Nil

Judgment

1. COMMISSIONER: Pursuant to s 87(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) on 11 March 2024 the Applicants appealed Canterbury-Bankstown Council’s (Council) refusal of development consent to Development Application No. DA948/2023 (DA) for completion of a double garage and prospective use of built elements which comprise base walls, concrete floor slab and ramp (proposed development) at Lot 1 in Deposited Plan 167557 known as 67 Second Avenue, Ashbury, NSW (Land).

2. The 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).

3. The statutory power or function to be exercised in determining the proceedings is s 4.16(1) of the EPA Act and s 34(3) of the EPA Act.

4. The Land has a frontage of 9.146m to Second Avenue, a secondary frontage of 39.625m deep on its western boundary to publicly accessible land being Lot 2 in Deposited Plan 16814, and a further secondary frontage at the rear of the Land with a width of 9.148m to a publicly accessible lane on Lot 2 Deposited Plan 118672 (rear lane).

5. The proposed development backs onto the rear lane. The built garage slab (the subject of proceedings No. 24/92795) sits a maximum of 310mm above the rear lane and as a result of the fall on the Land a minimum of 1.08 above the rear garden between the slab and the residence.

6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 May 2025. I presided over the conciliation conference.

7. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal, and granting consent to the DA subject to Annexure A.

8. 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 under s 4.16(1) and 4.17(1) of the EPA Act to uphold the appeal and grant consent to the DA subject to Annexure A. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how the jurisdictional prerequisites have been satisfied as set out below:

9. The Applicants are the owners of the Land and authorised to lodge the DA pursuant to s 23(1) of the Environmental Planning and Assessment Regulation 2021.

10. The Council is the appropriate consent authority pursuant to s 4.5(d) of the EPA Act.

11. The DA was lodged with Council on 14 August 2023, and Council refused the DA on 13 October 2023.

12. The Applicants filed their appeal to this Court on 11 March 2024, within the six month period required under s 8.10(1)(a) of the EPA Act.

13. The Land is zoned R2 Low Density Residential (R2 Zone) pursuant to Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP 2023), and the objectives of the R2 Zone are:

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

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To allow for certain non-residential uses that are compatible with residential uses and do not adversely affect the living environment or amenity of the area.

To ensure suitable landscaping in the low density residential environment.

To minimise and manage traffic and parking impacts.

To minimise conflict between land uses with this zone and land uses within adjoining zones.

To promote a high standard of urban design and local amenity.”

6. Development for the purposes of ancillary development such as garages are permitted within the R2 Zone, with development consent in accordance with the Land Use Table in CBLEP 2023.
7. The locality in the R2 Low Density Residential Zone are characterised by small lots generally of the same area and dimensions of the Land. Dwelling houses in the immediate vicinity are predominantly single storey brick and tile roof dwellings. The Land falls within the Wattle Hill Precinct of the Ashbury Conservation Area. The character of the rear lane is dominated by boundary fences with rear access to predominantly brick garages with gabled roof forms, although skillion and hip roof forms are also present with some carports.

Figure 1 - NE view from the Lane across western and northern boundary of the Site, taken from par [2] of Council’s Statement of Facts and Contentions filed 12 April 2024 (SOFAC)

1. The Wattle Hill Precinct of the Ashbury Conservation Area is of local heritage significance as an area largely developed by a small number of speculative builders from re-subdivision into the 1920’s, of the original Wattle Hill subdivision offered for sale between 1914 - 1916. The Wattle Hill Precinct is of aesthetic significance for:

(a) Its grid pattern of relatively wide east-west streets with some laneways in the southern portion; and (b) The uniformity of smaller allotments developed with narrow-fronted 1920’s single storey brick freestanding inter-war California Bungalow style housing.

2. In relation to the Contentions listed in Council’s SOFAC , the Council is satisfied that the Contentions have been satisfied because:

(a) Contention (1) - Height, shape, bulk and scale: These issues are now acceptable. The encroachment has now been eliminated and the wall to the garage set off from the boundary. The height has been deemed satisfactory by the Council. Privacy concerns are addressed by Condition 2(b) in Annexure A requiring a privacy screen off the garage exit. Council is of the view that if the DA had been made prospectively it would have been approved on merit. (b) Contention (2) - Safe Vehicular Access and Egress: Information sought by the Council satisfied the officers that the proposal now complies with the Australian Standard ASL 2890 and the Council’s policies. (c) Contention (3) - Heritage: The proposed works will not detract from the aesthetic significance of the Wattle Hill Precinct as the allotment size is not being altered, and the proposed works are adjacent to the rear laneway which is utilised by the adjoining residences for vehicular access to their particular garages or carports. The parties are satisfied that the DA is consistent with the heritage objectives in cl 5.10(1)(a) of CBLEP 2023 when the context of the Land is considered, and it is consistent with the eclectic mix of garages and rear exits of the residences opening onto this laneway. (d) Contention (4) - Stormwater and Contention (5) - Flooding: Revised plans by Martens & Associates numbered PS01-A000 Revision A dated 12 September 2024, PS01-E100 Rev A dated 12 September 2024, and PS01-E700 Rev A dated 12 September 2024 have satisfied these contentions. (e) Contention (6) - Insufficient information: The information has now been provided to the satisfaction of Council.

(i) Structural certification has been provided via the Halina Engineers’ Report dated 30 April 2025. (ii) Council officers report that the levels are satisfactory, and the ramp within the Land and on Council’s land is satisfactory following engineering certification.

3. Clause 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 precludes the granting of consent to the DA if the Land is contaminated. In the present case there is no change of residential use of the Land as it has been used as residential land since approximately 1920, and therefore a report specifying the findings of a preliminary investigation of the possible contamination on the Land is not necessary.

4. Clause 6.1 of CBLEP 2023 requires the development consent for the carrying out of works on land which is shown on the Acid Sulfate Soils Map. The Land is mapped as ‘Class 5 Land’. Clause 6.1(2) of CBLEP 2023 requires development consent for the carrying out of works on Class 5 lands which are within 500m of adjacent Class 1, 2, 3, or 4 land that is below 5m AHD, and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3, or 4 land. In this matter works will not be carried out within 500m of Class 1, 2, 3 or 4 land. The Court can be satisfied that there will be no disturbance of acid sulfate soils resulting from the works as they will not have any adverse impact on natural water bodies, wetlands, native vegetation, agriculture, fishing, aquaculture and infrastructure activities.

5. Clause 6.2 of CBLEP 2023 requires various matters to be taken into consideration in determining whether to grant consent for earthworks. The Council is satisfied that the DA complies with the requirements of cl 6.2.

6. The DA was notified along with Building Information Certificate BC-55/2023 (BIC) (PAN No BIC-16248) from 18 to 31 August 2023. Two submissions were received. Council considered the submissions. On 15 May 2025 the Council notified the two objectors by email that further reports and revised plans had been received which satisfied Council’s concerns. The objectors were notified of the hearing commencing onsite at 9.30am on 20 May 2025 and were invited to make oral submissions. I was the presiding officer, and attended the site at 9.30am on 20 May 2025. No objectors appeared, but a representative of the owners of a nearby property appeared on their behalf: Mr Matthew Fortunatto, town planner with Corona Projects. Mr Fortunatto had previously lodged a written submission on behalf of those owners, and gave an oral submission at the commencement of the hearing. As a result of Mr Fortunatto’s written and oral submission, Council agreed to imposing a requirement for the Applicant to provide a privacy screen at the rear garage door to alleviate an amenity issue to a nearby neighbour..

7. On return to the Court, the parties made application to the Court to consider converting the hearing to a conciliation conference. Pursuant to s 34(1) of the LEC Act the proceedings were listed for a s 34(1) Conciliation Conference at 2pm on 20 May 2025.

8. The conditions of consent in Annexure A comply with s 4.17(1) of the EPA Act.

9. The parties submit that there are no jurisdictional issues or impediments preventing the Court from making the orders sought in the s 34(3) Agreement.

10. 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.

11. 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. I shall uphold the appeal and grant consent to the DA subject to conditions in accordance with s 4.16(1) of the EPA Act.

12. The Court notes that Canterbury-Bankstown Council has consented to amended plans and documents in accordance with s 37(1) and 37(7), and 38(1) and 38(4) of the Environmental Planning and Assessment Regulation 2021 as set out below:

| Approved plans Plan number Revision number Plan title Drawn by Date of plan 2276 – DA-01 02 Cover Page Archisoul Architects 09/10/2024 2276 – DA-02 02 Existing Survey Archisoul Architects 09/10/2024 2276 – DA-03 02 Proposed Site Plan Archisoul Architects 09/10/2024 2276 – DA-04 02 Proposed Garage Floor Plan and Section Archisoul Architects 09/10/2024 2276 – DA-05 02 Proposed Elevations + Window and Door Schedules Archisoul Architects 09/10/2024 2276 – DA-06 02 Proposed 3D Views + External Finishes Archisoul Architects 09/10/2024 PS01-E100 A Drainage Plan Martens & Associates Pty Ltd 12/09/2024 PS01-E700 A Water Quality Catchment Plan, Model and Results Martens & Associates Pty Ltd 12/09/2024 20241008 – Sheet 1 1 Longitudinal Sections Wongala Consulting Engineers 08/10/2024 20241008 – Sheet 2 1 Longitudinal Sections Wongala Consulting Engineers 08/10/2024 Approved documents Document title Version number Prepared by Date of document Structural Certification Report 3576-SL03_A - Halina Engineers 30/04/2025 Engineering Report P2410358JR01V01 – Proposed Outbuilding Issue 1 Martens & Associates Pty Ltd 12/09/2024 Parking Assessment & Compliance Report – TR524_2 - Wongala Consulting Engineers 10/10/2024 Structural Certification 3576-SL03_B Halina Engineers 12 May 2025 | | Approved plans | | Plan number | Revision number | Plan title | Drawn by | Date of plan | | 2276 – DA-01 | 02 | Cover Page | Archisoul Architects | 09/10/2024 | | 2276 – DA-02 | 02 | Existing Survey | Archisoul Architects | 09/10/2024 | | 2276 – DA-03 | 02 | Proposed Site Plan | Archisoul Architects | 09/10/2024 | | 2276 – DA-04 | 02 | Proposed Garage Floor Plan and Section | Archisoul Architects | 09/10/2024 | | 2276 – DA-05 | 02 | Proposed Elevations + Window and Door Schedules | Archisoul Architects | 09/10/2024 | | 2276 – DA-06 | 02 | Proposed 3D Views + External Finishes | Archisoul Architects | 09/10/2024 | | PS01-E100 | A | Drainage Plan | Martens & Associates Pty Ltd | 12/09/2024 | | PS01-E700 | A | Water Quality Catchment Plan, Model and Results | Martens & Associates Pty Ltd | 12/09/2024 | | 20241008 – Sheet 1 | 1 | Longitudinal Sections | Wongala Consulting Engineers | 08/10/2024 | | 20241008 – Sheet 2 | 1 | Longitudinal Sections | Wongala Consulting Engineers | 08/10/2024 | | Approved documents | | Document title | Version number | Prepared by | Date of document | | Structural Certification Report 3576-SL03_A | - | Halina Engineers | 30/04/2025 | | Engineering Report P2410358JR01V01 – Proposed Outbuilding | Issue 1 | Martens & Associates Pty Ltd | 12/09/2024 | | Parking Assessment & Compliance Report – TR524_2 | - | Wongala Consulting Engineers | 10/10/2024 | | Structural Certification 3576-SL03_B | | Halina Engineers | 12 May 2025 |

12. I am not required to consider the merit issues in this matter, and I have not done so.

Orders

13. The Court orders:

14. The appeal is upheld.

15. Pursuant to s 4.16(1) of the Environmental Planning and Assessment Act 1979 consent is granted to development application No DA 948/2023 for the completion of a double garage and use of the existing as built elements which comprise of base walls, concrete slab and ramp on Lot 1 in Deposited Plan 167557 known as 67 Second Avenue, Ashbury subject to Annexure A.

…………………………

M Peatman

Acting Commissioner of the Court

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Amendments

06 August 2025

Following the request of the Respondent; pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), correction made to paragraph 8(13) to include the submission of the objectors’ representative, Mr Matthew Fortunatto, town planner with Corona Projects.