Background
St Wanas Coptic Orthodox Church brought a Class 1 development appeal against Canterbury Bankstown Council’s refusal of an application to demolish existing structures at 2, 4 and 6–8 Margaret Street, Belfield, and construct a Coptic church complex. The proposal included a 93-space basement car park, meeting and congregation rooms, a food servery, bookshop, living quarters, an outdoor multipurpose court and landscaping.
During court-arranged conciliation, the Church submitted amended plans reducing building and wall heights, increasing setbacks and deep-soil landscaping, changing the church façade and southern windows, and providing further information about overshadowing and adjoining amenity. The amendments resolved the Council’s contentions, and the parties agreed that the appeal should be upheld and consent granted subject to conditions.
The Court’s Holding
The Court upheld the appeal and granted consent to the amended development application subject to the conditions in Annexure A. Because the agreement arose through conciliation under s 34 of the Land and Environment Court Act 1979 (NSW), the Court did not undertake a merits assessment of the issues originally disputed. Its task was to determine whether the parties’ agreed decision was one the Court could lawfully make.
The Court was not satisfied that every part exceeding the 8.5-metre height standard qualified as an architectural roof feature under cl 5.6 of the Canterbury-Bankstown Local Environmental Plan 2023, because the exceedance included portions of the roof structure itself. It nevertheless accepted the Church’s cl 4.6 variation request, finding that strict compliance was unreasonable or unnecessary and that sufficient environmental-planning grounds justified the height contravention. The Court also found the relevant stormwater, essential-services, contamination, acid-sulfate-soils and sustainability requirements satisfied. Consent was subject to deferred commencement, requiring registration of a stormwater drainage easement over adjoining bowling-club land within 24 months, and the Church was ordered to pay the Council’s costs thrown away by the amendments.
Key Takeaways
- A court may formalize a conciliation agreement only after determining that the agreed outcome is within its lawful powers.
- Where height exceedances extend beyond qualifying decorative roof features, a properly supported cl 4.6 variation may provide an alternative basis for approval.
- Deferred commencement conditions can ensure that a required stormwater easement is secured before development consent becomes operative.
Why It Matters
The decision illustrates the legal scrutiny that remains necessary when parties settle a New South Wales development appeal: agreement alone does not dispense with jurisdictional prerequisites. It also shows how substantial height exceedances associated with religious architecture may be approved through a cl 4.6 variation even when the architectural-roof-feature pathway is unavailable.
For developers and consent authorities, the case highlights the importance of precise height analysis, documented planning grounds and enforceable arrangements for infrastructure crossing adjoining land. It also confirms that applicants may bear costs wasted when amended plans are introduced during an appeal.