A recent decision of the NSW Land and Environment Court, JS Architects Pty Ltd v Canterbury-Bankstown Council [2026] NSWLEC 1298, demonstrates how a contested development application can be successfully resolved through negotiation, amendment, and the court’s conciliation process.
The case involved a proposed five‑storey residential apartment building in Bankstown. The Council had not made a decision within the statutory timeframe (a “deemed refusal”), so the applicant lodged an appeal. After a series of conciliation conferences, the parties reached an agreement, and the Court ultimately granted development consent – but with important amendments and conditions.
This blog explains what happened, why the proposed variations to planning rules were accepted, and what property developers and applicants can learn from the outcome.
The Proposal and the Initial Issues
The applicant, JS Architects Pty Ltd, sought consent for:
Demolition of existing structures.
Construction of a five‑storey residential apartment building containing 17 residential units (including one dedicated affordable housing unit).
Two levels of basement car parking.
The site is at 2‑4 Vimy Street, Bankstown, and is zoned R4 High Density Residential under the Canterbury‑Bankstown Local Environmental Plan 2023 (CBLEP). Residential apartment development is permissible with consent in this zone.
However, the proposal faced a number of contentions from the Council, including:
Potential site isolation.
Exceedance of the height of buildings control.
Exceedance of the floor space ratio (FSR) control (though ultimately resolved).
Insufficient deep soil landscaping.
Poor internal amenity.
Urban design and streetscape concerns.
Heritage impacts (the site is near several heritage items).
Inadequate vehicle access, parking, stormwater, and waste management.
The Conciliation Process – Reaching an Agreement
Rather than proceeding straight to a contested hearing, the matter was listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979. Conferences were held on three separate dates, presided over by an Acting Commissioner of the Court.
During these conferences, the parties worked together to identify a path forward. The result was a series of amendments to the original development application, including:
Improved building relationship with the site and surrounding context.
Reconfigured internal layouts to improve amenity for future residents.
Changes to the architectural expression and building articulation.
Resolved vehicular access and parking arrangements.
Additional information on heritage, stormwater, and geotechnical matters.
Critically, the Council agreed that with these amendments (and the imposition of appropriate conditions of consent), all of its original contentions were resolved.
Varying Development Standards – The cl 4.6 Written Requests
Two key development standards under the CBLEP were not met, even after the amendments. The applicant therefore needed to rely on clause 4.6 of the CBLEP, which allows a consent authority to contravene a development standard if the applicant demonstrates that compliance is unreasonable or unnecessary and there are sufficient environmental planning grounds to justify the contravention.
1. Minimum lot size (cl 4.1B)
The standard requires a minimum site area of 1,500sqm and a frontage width of 30m.
The site had an area of 1,170.6sqm and a frontage of 25.6m.
The applicant provided a written request from OTM Planning (May 2025).
The Court accepted that the variation was justified because the amended proposal was compatible with the streetscape and desired future character, would not isolate adjacent sites, and met the objectives of the zone and the development standard itself.
2. Height of buildings (cl 4.3)
The standard allows a maximum building height of 19m.
The amended proposal reached 20.3m – an exceedance of 1.3m (about 6.8%).
The exceedance was largely due to the building core and lift overrun, which were centrally located and designed to minimise visibility.
A written request from Urbanism Planning and Development (March 2026) was accepted.
The Court found the height variation would not cause unreasonable visual impacts, overshadowing, view loss, or privacy loss, and was consistent with the objectives of the height control.
Both cl 4.6 requests were upheld. This is a practical reminder that a strict numerical standard can sometimes be varied where the design quality and site context justify it.
Other Key Planning Considerations Satisfied
The Court also confirmed that a wide range of other planning controls and policies had been addressed, including:
Heritage (cl 5.10 of CBLEP) – a Heritage Impact Statement and Addendum showed no unreasonable impacts on nearby heritage items.
Flood planning (cl 5.21) – the site is partly flood‑affected, but the proposal appropriately accounted for this.
Acid sulfate soils (cl 6.1) – not an issue.
Earthworks (cl 6.2) – a geotechnical report was provided, with conditions to manage excavation.
Stormwater (cl 6.3) – amended stormwater plans satisfied the relevant criteria.
Essential services (cl 6.9) – available.
Design excellence (cl 6.15) – the amended design achieved an acceptable standard.
State environmental planning policies were also considered:
Biodiversity and Conservation (SEPP BC) – the proposal would not adversely affect the Georges River Catchment, and conditions would manage erosion and sediment.
Resilience and Hazards (SEPP Resilience) – the site’s previous residential use meant contamination was unlikely.
Sustainable Buildings (SEPP Sustainable Buildings) – a BASIX certificate was provided, quantifying embodied emissions.
Housing (SEPP Housing) – Chapter 4 (residential apartment design) – a Design Verification Statement from a registered architect confirmed compliance with the Apartment Design Guide.
Public Submissions and Costs
The original DA was publicly notified, and 17 submissions were received from local residents raising concerns. The Court was satisfied that the amended proposal and agreed conditions had properly addressed those concerns.
As part of the agreement, the applicant was ordered to pay the Council’s costs thrown away as a result of amending the development application – a fixed sum of $5,500 (payable within 28 days). This is a common outcome under s 8.15(3) of the Environmental Planning and Assessment Act 1979 when a DA is amended after being lodged.
The Final Outcome
The Court made the following orders:
Leave granted to rely on the amended plans and documents.
The applicant to pay the Council $5,500 for costs thrown away.
The appeal is upheld.
Development consent granted to the amended DA, subject to conditions (set out in Annexure A to the judgment).
Key Takeaways for Developers and Applicants
This case offers several practical lessons for anyone navigating the development approval process in NSW:
An appeal against deemed refusal is a valuable tool. If a council fails to determine a DA within the statutory time frame, an applicant can appeal to the Land and Environment Court – a faster and often more collaborative path than waiting indefinitely.
Use the s 34 conciliation process. The Court’s ability to bring the parties together for a without‑prejudice conference is highly effective. In this case, three conferences allowed the parties to resolve complex technical issues without a drawn‑out hearing.
Be prepared to amend your proposal. The original DA had multiple contentions. By working with the council and making genuine design improvements, the applicant turned a refusal (or deemed refusal) into an approval.
Clause 4.6 written requests can work – but they need proper justification. You can seek to vary a development standard, but you must provide a detailed written request that explains why compliance is unreasonable and why the proposal still achieves the standard’s objectives. The requests here were accepted because the overall design was high‑quality and the variations were minor.
Affordable housing can be a positive feature. The proposal included one affordable housing unit. While not the sole reason for approval, it aligns with state and local housing policies and can strengthen an application.
Expect to pay “costs thrown away” if you amend your DA after lodging an appeal. This is a standard order to compensate the council for the time and resources spent on the original (now superseded) application. The agreed sum here was modest – $5,500 – but it is a cost that should be factored in.
Public submissions must be taken seriously. The Council received 17 objections. The Court specifically noted that the amended DA and conditions had satisfactorily addressed those concerns. Ignoring community feedback is rarely a successful strategy.
Conclusion
JS Architects Pty Ltd v Canterbury-Bankstown Council is a textbook example of how a development application can be saved through negotiation, good design, and a pragmatic use of the Land and Environment Court’s processes. The decision also shows that strict development standards are not absolute – where a proposal is otherwise excellent, a minor variation can be justified.
If you are facing a difficult DA process or a council refusal (or deemed refusal), seeking expert legal advice early – and being open to amendment – can turn a contested case into a consent.
This blog post is based on a summary of the published court judgment JS Architects Pty Ltd v Canterbury-Bankstown Council [2026] NSWLEC 1298 and is intended for general informational purposes only. It does not constitute legal advice. You should consult with one of our qualified lawyers for advice regarding your specific development or planning matter.
