WY Constructions v Canterbury-Bankstown Council

Texts Cited: Canterbury Bankston Development Control Plan 2023

Category: Principal judgment

Parties: WY Constructions Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation: Counsel
V Conomos (Solicitor)(Applicants)
T Ward (Solicitor)(Respondent)
Solicitors:
Conomos Legal (Applicants)
Pikes and Verekers Lawyers (Respondent)

File Number(s): 2024/238741

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal of modification application DA-186/2016/A to modify the Development Consent granted by the Land and Environment Court in proceeding 2017/63175, for 27 Fletcher Street, Campsie (Lot 89 in Deposited Plan 4178).

2. On 28 November 2017 the Land and Environment Court granted development consent to DA-186/2016 in Land and Environment Court proceeding WY Constructions Pty Ltd v Canterbury - Bankstown Council [2017] NSWLEC 1671 (WY Construction Pty Ltd 2017). This appeal concerns a modification of this consent for the development including demolition of existing structures and construction of a three storey residential flat building with basement car parking.

3. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

Conciliation and agreement between the parties

4. 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 9 December 2024. I presided over the conciliation conference. In the course of the conciliation conference, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The terms of the agreement between the parties involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

6. As part of this agreement the Council agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), to the applicant amending the development application. These amendments included:

7. Amended Architectural Plans (Revision 3), prepared by SWA Group dated 13 December 2024, but for sheet DA101, being Revision 4, dated 14 January 2025.

8. Amended Landscape Plans (Revision B), prepared by Site Design + Studios, dated 12 December 2024.

9. Operational Waste Management Plan (Revision D), prepared by Elephants Foot Consulting, dated 13 December 2024.

10. Town Planning Statement, prepared by Minto Planning Services, dated 18 December 2024.

11. Parking Design Statement, prepared by PDC Consultants, dated 12 December 2024.

12. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.

Jurisdiction

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites they saw as of relevance in these proceedings and explained how they have been satisfied. Mindful of this advice I make the following findings in relation to jurisdiction.

9. Environmental Planning & Assessment Act 1979

10. The Applicant is the landowner of the Site being 27 Fletcher Street, Campsie. I am satisfied that owner’s consent was given for the lodgement of the Development Application.

11. Environmental Planning & Assessment Regulation 2021

12. The Development Application was submitted with the consent, in writing, of the owners of the land as required by s 23 of the EPA Reg.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires a consent authority to be satisfied that appropriate consideration has been given to whether the site is contaminated, the suitability of the Site to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so. I am satisfied with the advice of the parties and evidence that the site was previously residential, that the site carries a low risk of contamination and that the site is suitable for residential development.

State Environmental Planning Policy (Housing) 2021 (SEPP Housing)

14. The original development consent was approved utilising State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) which has been repealed by State Environmental Planning Policy (Housing) 2021 (SEPP Housing). I am satisfied with the advice of the parties that Schedule 7A (Savings and transitional provisions) provides savings provision and therefore SEPP ARH continues to apply for the subject development.

State Environmental Planning Policy (Affordable Rental Housing) 2009

15. Clause 14(1)(c) of SEPP ARH is a discretionary development standard and requires that a minimum of 30% of the site area is to be landscaped. The proposal as detailed on the plans accompanying this submission provides for 180m2 or 27.9% of the site as landscape area. It is understood that the reduction is attributable to an incorrect calculation of the landscape area as part of the original application, and the need to include an additional egress stair from the basement.

16. Clause 14(1)(d) of SEPP ARH is a discretionary development standard and requires that a minimum of 15% of the site area is to be provided as deep soil. The proposal as detailed on the plans accompanying this submission provides for 87m2 or 13.5% of the site as deep soil area. It is understood that the reduction is attributable to an incorrect calculation of the deep soil area as part of the original application, and to the need to include an additional egress stair from the basement.

17. The parties consider that the amended landscape plan, prepared by Site Design + Studios, dated 12 December 2024, maximises the amount of landscape area provided as part of the proposal. I am satisfied with the advice of the parties and the information in the Statement of Environmental Effects prepared by Just Property & Planning dated 8 December 2023 (SEE) that the requirements of SEPP ARH have been met.

Canterbury-Bankstown Local Environmental Plan 2023

18. The Site is located within Zone R4 High Density Residential. The use of the Site as a Residential Flat Building is permissible with consent.

19. Demolition is permissible with development consent pursuant to cl 2.7 of the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP 2023). I am satisfied with the advice of the parties and the information in the SEE that the requirements of cl 2.7 have been met.

20. Clause 4.3 specifies a maximum permissible height of buildings for the site of 8.5m. The proposed development seeks a maximum building height of 9.13m, which is an increase of 0.34m or 3.58% from the original development consent, which had maximum height of 8.79m. I am satisfied with the advice of the parties and the information in the SEE that the requirements of cl 4.3 have been met.

21. Clause 4.4 specifies the maximum FSR for the site is 0.75:1. The proposal provides a FSR of 0.91:1 which is a slight reduction from the original DA consent. However, the SEPP ARH permits bonus FSR, allowing for an FSR of 1.099:1. I am satisfied with the advice of the parties and the information in the SEE that the requirements of cl 4.4 have been met.

22. The proposed development application involves excavation, and a geotechnical report, prepared by Geo-Environmental Engineering, dated 5 February 2016, was provided as part of the original application. I am satisfied with the advice of the parties and the information in the SEE and the above engineering report that the requirements of cl 6.2 have been met.

23. The original stormwater plans were submitted as part of the modification application which were accepted by the Council and the Court in LEC proceeding WY Construction Pty Ltd 2017. I am satisfied with the advice of the parties and the information in SEE that the requirements of cl 6.4 (Stormwater) have been met.

24. The subject site is currently serviced by water, electricity, sewer as well as direct vehicular and pedestrian access services, as required by the cl 6.10 of the CBLEP 2023. I am satisfied with the advice of the parties and the information in the SEE that the requirements of cl. 6.10 (Essential Service) have been met.

Development control plan

25. I take the parties’ advice that the Development Application can be approved having regard to the Canterbury-Bankston Development Control Plan. I take the parties’ advice that the Development Application can be approved taking into consideration the matters in subss 4.15(1)(b) – (e) of the EPA Act based on the amended plans and agreed conditions of consent.

26. The parties have agreed on conditions of consent. I take the parties advice that the conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles.

Conclusion

27. 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)). The orders I make below have this effect.

28. In making the orders to give effect to the agreement between the parties, 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.

29. The Court notes that:

30. Canterbury Bankston Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification Application DA-186/2016/A and to rely upon the plans and documents in Condition 1 of Annexure A.

31. The Applicant filed the amended development application with the Court on 20 February 2025.

32. The Court orders that:

33. The appeal is upheld.

34. Development Consent No 186/2016/A is modified in the terms in Annexure A for the demolition of existing structures and construction of a three storey residential flat building with basement car parking at 27 Fletcher Street, Campsie.

P Nichols

Acting Commissioner of the Court

**********

Annexure A