Wakim v Canterbury- Bankstown Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.15, 8.7
Fisheries Management Act 1994 (NSW)
Land and Environment Court Act 1979 (NSW), s 34
Water Management Act 2000 (NSW)
Canterbury-Bankstown Local Environmental Plan 2023, cll 2.7, 4.1, 6.3
Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.3, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.28, 6.60, Chs 2, 6, Sch 6, Div 2, Pt 6.2
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Canterbury-Bankstown Development Control Plan 2023

Category: Principal judgment

Parties: Buddy Wakim (Applicant)
Canterbury-Bankstown Council (Respondent)

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

File Number(s): 2024/00360686

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by Buddy Wakim (the Applicant) against the actual refusal of their development application DA- 760/2024. The development application, as amended, seeks consent for subdivision, construction of a new access handle, driveways and cross overs, provision of landscaping in the front setback, alterations and building work to an existing building, demolition of an office and construction of a garage, and stormwater services. The development proposed is located at 90-92 Rogers Street, Roselands (Lot 10 DP 785152).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 21 March 2025. Following the conciliation conference, the parties were provided additional time by the court, however the conciliation was ultimately terminated and the matter listed for hearing.

3. Notwithstanding the termination of the conciliation conference, the parties continued to negotiate in relation to the form of the development and appropriate conditions of consent. These negotiations were productive. The Applicant further amended the development application in June 2025, seeking to address the Respondent's concerns. The parties continued discussions on the amended plans and reached an agreement based on the amended development application. The parties’ agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A. The parties sought a further conciliation conference which was arranged for 4 July 2025. I presided over the further conciliation conference.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties agreed resolution: see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]. I form this state of satisfaction on the basis that:

5. The development application is accompanied with the written consent of the owner of the land as required by s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW).

6. Notification of the development application occurred from 31 July 2024 to 14 August 2024. No submissions were received.

7. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The Respondent and the Applicant agree, and I accept, that the site has a long history of residential and warehouse/storage purposes and no known records of contaminating activity being conducted on the site. This history is detailed in the Statement of Environmental Effects (SEE). Further, no excavation works are proposed in the development application. The annexed conditions include the imposition of a condition of consent requiring a hazardous material survey prior to demolition. I find that s 4.6(1) of SEPP RH is satisfied.

8. Pursuant to s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Ch 2 ‘Vegetation in Non-Rural Areas’ applies to the development application. The proposed development seeks consent for the removal of a single palm tree to facilitate the creation of a new driveway to Proposed Lot 1. Further, planting is proposed in the front setback of the site. The parties agree, and I accept, that the relevant provisions of Ch 2 of the SEPP BC are met.

9. The site is located within the Georges River Catchment in accordance with the maps associated with the SEPP BC and is subject to the provisions in Chapter 6 of the SEPP BC, but it is located outside the Foreshores and Waterways Area identified in the relevant map (see s 6.28 of the SEPP BC).

10. In deciding whether to grant development consent, the consent authority must consider ss 6.6(1), 6.7(1), 6.8(1) and 6.9(1) in Ch 6 of the SEPP BC which require consideration of the impacts of development on land located within the Georges River Catchment, which is a "regulated catchment" as defined in Sch 6 – Dictionary to Ch 6 of the SEPP BC.

11. Sections 6.6(2), 6.7(2), 6.8(2) and 6.9(2) in Div 2 of Pt 6.2 of the SEPP BC precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to:

(a) Water quality and quantity; (b) Aquatic ecology; (c) Flooding; (d) Recreation and public access; and (e) Total catchment management.

8. The Applicant’s development application includes stormwater engineering plans and modelling. On the basis of these stormwater plans and the minor nature of the works for which consent is sought under the development application as a whole, I accept the agreement of the parties in relation to the s 6.6(1) considerations, that:

(a) Subject to the installation and maintenance of sediment controls during building works, the development will have a neutral effect on the quality of water entering a waterway. Such erosion and sediment control measures are required by the consent conditions in Annexure A; (b) The development will not have an adverse impact on water flow in a natural waterbody; (c) There will be no discernible increase to stormwater runoff that would adversely affect downstream land; (d) The development does not incorporate on-site stormwater retention, infiltration or reuse; (e) The development does not involve significant excavation and will have no impact on the level and quality of the water table; (f) Cumulative environmental impacts from the development on the regulated catchment are negligible; and (g) The development makes adequate provision to protect the quality and quantity of groundwater.

9. On the same reasoning as (8) above, I accept the agreement of the parties in relation to the s 6.6(2) considerations, that:

(a) The effect on the quality of water entering a natural waterbody will be as close as possible to neutral; and (b) The development has negligible and satisfactory water flow impacts for a natural waterbody.

10. On the same reasoning as (8) above, I accept the agreement of the parties in relation to the s 6.7(1) considerations, that:

(a) To the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor and not determinative of the application; (b) The development does not involve the clearing of riparian vegetation; (c) The development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway; (d) The development will not have an adverse impact on wetlands; (e) The development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures; and (f) The development does not adjoin a natural waterbody.

11. On the same reasoning as (8) above, I accept the agreement of the parties in relation to the s 6.7(2) considerations, that:

(a) Any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development; (b) The development will not have a direct, indirect or cumulative adverse impact on aquatic reserves; (c) No approval or permit is required under the Water Management Act 2000 (NSW) or the Fisheries Management Act 1994 (NSW); (d) The land does not abut a natural waterbody; and (e) There will be no adverse impact on wetlands.

12. On the same reasoning as (8) above, I accept the agreement of the parties in relation to s 6.9(1) considerations, that:

(a) The development will have no impact on recreational land uses in the Georges River Catchment; and (b) The development has no impact on public access to and around foreshores.

13. On the same reasoning as (8) above, I accept the agreement of the parties in relation to s 6.9(2) considerations, that:

(a) The development has no impact on public access to and from natural waterbodies for recreational purposes; (b) The development does not involve new or existing points of public access to natural waterbodies; and (c) The land does not form part of a foreshore of a natural waterbody.

14. On the same reasoning as (8) above, I accept the parties’ position that the development will not have an adverse environmental impact for adjacent and downstream local government areas: s.6.10 of the SEPP BC.
15. In relation to s 6.11 of the SEPP BC, the land is not within 100m of a natural waterbody. The site is not within a riverine scenic area (s 6.12), a Hawkesbury-Nepean conservation area sub-catchment (s 6.13) or the Sydney Drinking Water Catchment (s 6.60) and does not involve temporary use of land (s 6.14).
16. The requirements of SEPP BC are met by the amended development application.
17. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the development as it is located within 5 metres of an existing power pole. That provision requires the development application to be notified to the electricity supply authority. The parties agree, and I accept, that written notice of the development application was provided to the electricity supply authority.
18. Canterbury-Bankstown Local Environmental Plan 2023 (LEP 2023) applies to the site. Pursuant to LEP 2023 the site is zoned E4 General Industrial. In determining the development application, I have given consideration to the objectives of the zone, which are:

• To provide a range of industrial, warehouse, logistics and related land uses.

• To ensure the efficient and viable use of land for industrial uses.

• To minimise any adverse effect of industry on other land uses.

• To encourage employment opportunities.

• To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

• To support and protect industrial land for industrial uses.

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

19. The proposed development is a permitted use with consent in the zone. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2023.
20. The development application is compliant with the minimum lot size development standard at cl 4.1 of LEP 2023.
21. Clause 6.3(3) of LEP 2023 ‘Stormwater Management’ applies to the development application. The details in the Stormwater Management Plans which are part of the development application allow me to be satisfied of the matters at cl 6.3(3), namely that the development:

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids significant adverse impacts of stormwater runoff on the land on which the development is carried out, adjoining properties and infrastructure, native bushland and receiving waters, or if the impact cannot be reasonably avoided, minimises and mitigates the impact, and

(d) includes riparian, stormwater and flooding measures, and

(e) is designed to incorporate the following water sensitive urban design principles—

(i) protection and enhancement of water quality, by improving the quality of stormwater runoff from urban catchments,

(ii) minimisation of harmful impacts of urban development on water balance and on surface and groundwater flow regimes,

(iii) integration of stormwater management systems into the landscape in a way that provides multiple benefits, including water quality protection, stormwater retention and detention, public open space and recreational and visual amenity.

22. Canterbury-Bankstown Development Control Plan 2023 (DCP) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP. In determining the development application, I have considered the provisions of the DCP: s 4.15(1) of the EPA Act.

23. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

24. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

7. The Court notes that:

8. Canterbury-Bankstown Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending Development Application No DA0333/21 in accordance with the documents listed below:

| Plan name | Drawing Number / Revision | Prepared by | Dated | | Amended Architectural Plans | | Site Plan/Roof Plan | S.34_1.00A | Graphio | 9 May 2024 | | Calculations Plan | S.34_2.00A | Graphio | 9 May 2024 | | Subdivision Plan | S.34_2.01A | Graphio | 9 May 2024 | | Subdivision Plan Cont | S.34_2.0A | Graphio | 9 May 2024 | | Ground Floor Plan | S.34_3.00A | Graphio | 9 May 2024 | | Ground Floor Demo Plan | S.34_3.01A | Graphio | 9 May 2024 | | First Floor Plan | S.34_4.00A | Graphio | 9 May 2024 | | Roof Plan | S.34_5.00A | Graphio | 9 May 2024 | | Roof Demo Plan | S.34_5.01A | Graphio | 9 May 2024 | | Section A-A | S.34_6.00A | Graphio | 9 May 2024 | | Elevations | S.34_7.00A | Graphio | 9 May 2024 | | Elevations | S.34_7.01A | Graphio | 9 May 2024 | | Amended Stormwater Engineering Plans | | Details, Notes & Legend | D1, issue B | NY Civil Engineering | 12 May 2025 | | Stormwater Management Plan | D2, issue B | NY Civil Engineering | 12 May 2025 | | Cut and Fill Plan | D3, issue B | NY Civil Engineering | 12 May 2025 | | Driveway Plan | D4, issue B | NY Civil Engineering | 12 May 2025 | | Driveway Plan | D5, issue B | NY Civil Engineering | 12 May 2025 | | Stormwater and Sediment Control Plan | D6, issue B | NY Civil Engineering | 12 May 2025 | | Sediment Control Plan | D7, issue B | NY Civil Engineering | 12 May 2025 |

Orders

8. The Court orders that

9. The Applicant is to pay the Respondent costs thrown away as a result of the amendment of the development application under s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the sum of $2000 within 28 days.

10. The appeal is upheld.

11. Development Application No DA-760/2024 for demolition of existing awning and office and alterations and additions to the existing units including removal of roller door and installation of new roller door, removal of window door and installation of a new door, installation of new vehicular access and associated footpath crossing, new landscaping and a two lot Torrens title subdivision at 90-92 Rogers Street, Roselands, being Lot 10 DP 785152, is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

D Dickson

Commissioner of the Court

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Annexure A (443 KB, pdf)