Yuan v Canterbury-Bankstown Council

Category: Principal judgment

Parties: Congying Yuan (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation: Counsel:
V Conomos (solicitor) (Applicant)
M Bonanno (solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s): 2024/277576; 2024/277588; 2024/277589

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Canterbury-Bankstown Council (the Council) of DA 323/2024 (the DA appeal) for works identified on the approved plans, and for use of the rooms of the dwellings at 25A and 25B Richard Avenue, Earlwood, NSW, being Lot 2 DP 1131276 (the Site), in a different layout and different areas from that approved for the dwellings under CDC-14/731 and CDC-14/732 (the Proposed Development).

Background

2. These proceedings are linked with appeals No 2024/277588 and No 2024/277589 being appeals pursuant to s 8.25 of the EPA Act from the failure by the Council to issue Building Information Certificates (BIC appeals) relating to the same development on the same land as the DA appeal. The BIC appeals and the DA appeal concern dwelling houses in an advanced stage of construction at the time of the Court’s on-site inspection. The DA Appeal was initially listed as a mediation and the two BIC appeals as s 34 conferences all listed on the same day. The parties requested that the DA Appeal be dealt with as a s34 Conference which was accepted by the Court. The parties ultimately resolved the DA appeal by an agreement under s 34(1) of the L**and E**nvironment C**ourt Act 1979 (LEC Act) which is the subject of this judgment.

3. It is noted that the two Building Information Certificate Applications the subject of the BIC Appeals, are consistent with the architectural plans the subject of the amended architectural plans of the DA. The parties are in agreement that, upon the upholding of this appeal and the granting of development consent, Council will approve the two Building Information Certificate Applications, with a consequent discontinuance of the two BIC Appeals. The BIC appeals are otherwise not part of this judgment as no orders are required to be made in respect of the BIC appeals.

4. The conciliation conference on Site and back at Council of all three class 1 appeals together enabled the parties to reach agreement as to the terms of a decision in the DA appeal proceedings that would be acceptable to the parties and resolved the unlawful works carried out. The agreed position is for the Court to uphold the Class 1 DA appeal and grant development consent to the proposed development with conditions at Annexure A.

5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement). The statutory planning controls relevant to the Site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

Satisfaction as to Jurisdiction

6. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters.

Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP)

7. The subject site is situated within the R2 – Low Density Residential Zone of the CBLEP. Development for the purpose of dwellings is permissible in the zone.

8. Clause 4.3 of CBLEP 2023 provides a maximum height development standard of 9.5 metres and the amended proposal complies with that development standard.

9. Clause 6.1 to CBLEP 2023 relates to Acid Sulfate Soils. As identified at page 37 of the Statement of Environmental of Effects of ABC Planning dated March 2024, the subject site is located within an area identified as Class 5 Acid Sulfate Soils. The proposal includes excavation in association with the works to the basement level, the proposal is unlikely to lower the water table. An Acid Sulfate Soils Management Plan is therefore not required.

10. I have considered the jurisdictional provisions applicable to the proposed development that are raised by the following State Environmental Planning Policies, discussed in detail in the parties’ Statement, and agree with the parties’ conclusions that no jurisdictional impediments arise pursuant to:

11. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

12. State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. State Environmental Planning Policy (Resilience and Hazards) 2021

Public Consultation

11. The DA was notified by the Council in accordance with the Council notifications policy. The parties advise that the submissions of objectors are a relevant consideration under s 4.15(1)(d) of the EPA Act and that the Final Plans address the issues raised by the submissions of the objectors.

12. In addition to [11] above, the parties advise that the amended plans the subject of the s 34 agreement were directly notified to the adjoining owners who originally objected to the proposal. The adjoining owners addressed the Court at the on-site inspection. Having taken into account any further submissions from those objectors, the parties remain of the position that the amended plans address the objectors’ concerns.

13. I am satisfied that the objectors’ reasonable concerns were considered by the parties and the objectors were accorded procedural fairness.

Conclusion

14. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

15. 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. 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.

Notations

16. The Court notes that:

17. The Respondent has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant’s application for an amendment to Development Application No DA 323/2024 to rely on the following plans and documents:

(a) Architectural Plans (Revision D), prepared by ES Design, dated 28 February 2025. (b) Landscape Plans (Revision F) prepared by Melissa Wilson Architects, dated 27 February 2025. (c) BASIX Certificate 1735610S_02, dated 21 March 2025. (d) BASIX Certificate 1735613S_02, dated 21 March 2025. (e) Planning Statement, prepared by ABC Planning, dated March 2025. (f) Flood Impact Assessment Report, prepared by Landdev Engineering Consulting, dated 5 February 2025. (g) Stormwater Plans, Greenview Consulting, dated 5 March 2025. (h) Contamination Report, prepared by Australian Ground Sciences, dated 19 February 2025.

Orders

17. The Court orders:

18. The appeal is upheld.

19. Development Consent is granted to Development Application DA-323/2024, as amended, for works identified on the approved plans, and for use of the rooms of the dwellings at 25A and 25B Richard Avenue, Earlwood NSW, being Lot 2 DP 1131276, in a different layout and different areas from that approved for the dwellings under CDC-14/731 and CDC-14/732, subject to conditions set out in Annexure “A”.

20. The Applicant is to pay the costs of the Respondent thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $2,000 within 28 days of this judgment.

L Byrne

Acting Commissioner of the Court

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Annexure A.324 KB.pdf