Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

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 actual refusal by the Canterbury-Bankstown Council (the Council) of DA- 1533/2023 (the Development Application).

2. The Development Application seeks consent for the demolition of the existing cabana and garage, alterations and additions to existing dwelling including first floor extension and construction of a carport, construction of a new additional detached two storey dwelling with carport and Torrens title subdivision (the Proposed Development), on land at 14 Kerry Crescent, Roselands NSW 2196 being Lot 3 in DP 218118 (the 'Site').

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties. As at the date of the hearing, the parties had engaged in without prejudice discussions. As a result of the discussions and the amended Development Application the parties reached an in-principle agreement which formed the basis of the s 34 agreement before the Court. Accordingly, the parties requested that the Site visit be dispensed with and the finalisation of the matter be heard at Court which was accepted by the Court.

4. The parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council's contentions. This decision involved Council approving an application to amend the Applicant's plans pursuant to cl 38(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the class 1 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) provided to the Court. 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.

The Site and zoning

7. The Site is described by the parties as follows:

1) is irregular in shape with an area of approximately 1,265m2. The Site has a frontage of 10.67m which splays out to 26m before reducing to a rear section with roughly parallel boundaries with a width of approximately 15.5m. The Site has an approximate depth of 80m. The Site has a natural consistent fall of about 5m from the north to south, although the rear of the Site has been largely levelled; and

2) is currently occupied by a single storey three bedroom dwelling towards the front of the Site. The Site also contains a detached brick garage, detached external storage, detached cabana and a medium size in-ground concrete pool. The existing house is setback approximately 13m from Kerry Crescent, around 1.2m from the east side boundary and a minimum of around 6.2m from the west boundary; and

3) is encumbered by a 1.8m wide drainage easement that extends from the front north west corner of the Site to the rear south east corner.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1968a66049ea0b9b352444f7)

Disclaimer: Curated by HT Syndication.