Abdul-Rahman v Cumberland Council

[2020] NSWLEC 1162

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Abdul-Rahman v Cumberland Council [2020] NSWLEC 1162
Hearing dates:	Conciliation conference on 25 March 2020
Date of orders:	07 April 2020
Decision date:	07 April 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1) The Applicant is granted leave to rely on the amended plans, copies of which are contained in Annexure ‘A’. (2) The Applicant is to pay the Respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 and agreed in the amount of $7,350.00 within 28 days. (3) The appeal is upheld. (4) Development application DA-495/2017 for the demolition of all existing buildings and ancillary structures, construction of a residential flat building, comprising one (2) basement levels containing car parking (18 spaces), and 5 levels (containing 16 units) at 26 Railway Terrace, Granville, is approved subject to conditions in Annexure ‘B’.
Catchwords:	DEVELOPMENT APPLICATION – Residential Flat Building – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Parramatta Local Environmental Plan 2010 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Category:	Principal judgment
Parties:	Omar Abdul-Rahman (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: R O’Gorman Hughes (Applicant) A Gough (Solicitor) (Respondent)   Solicitors: HWL Ebsworth (Applicant) Storey & Gough Lawyers (Respondent)
File Number(s):	2018/391562
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) by the Applicant against the refusal by Cumberland Council of its development application DA-495/2017. The development application seeks consent for demolition of existing apartments and construction of a six storey residential flat building, comprising 20 apartments, over two levels of basement parking. The subject site is 26 Railway Terrace, Granville (Lot 4 DP 86648).

2. On 14 November 2017, the Applicant lodged a development application with Cumberland Council. The Cumberland Local Planning Panel refused the development application on 11 July 2018; the Applicant is appealing that refusal.

3. In accordance with the Court’s usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was held on 20 August 2019. By consent of the parties a further conciliation conference was held on 25 March 2020. Through the conciliation process, the parties have agreed amendments to the proposed development. The agreed orders provide leave to the Applicant to rely on this amended material in their development application.

4. Following the conciliation, an agreement under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. Landowners consent was provided by the owner of the land at the time of the lodgement of the Development Application.

2. Consistent with the requirements of cl 7 of State Environmental Planning Policy No 55—Remediation of Land I have given consideration to the potential contamination of the land. I note that the Statement of Environmental Effects accompanying the application states that: the land is not within an investigation area; and development for a purpose referred to in Table 1 of the Contaminated Land Planning Guidelines is not known to have been carried out on the land.

3. Consistent with cl. 3 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been submitted [877314M-02].

4. The proposed development complies with the applicable development standards in the State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”).

5. Consideration has been given as to whether the design of the development is compatible with the character of the local area, as required by cl 16A of the SEPP ARH. The parties agree that, as a result of amendments to the plans, the design is compatible with the local character.

6. Consideration has been given to the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development, as required by cl 15 of the SEPP ARH.

7. The development is required to comply with the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and the provisions of the Environmental Planning and Assessment Regulation 2000 (‘Regulation’). The Applicant has filed a Design Verification Statement that meets the requirements of cll 50(1AB) and 143A of the Regulation: Registered architect number: 7542.

8. The site is subject to the provisions of the Parramatta Local Environmental Plan 2011 (LEP 2011) and is zoned R4 High Density Residential. Residential Flat Buildings is a permissible use with consent. Demolition is permissible pursuant to cl. 2.7.

9. The proposed development is compliant with the development standards in LEP 2011.

10. The original application was notified in accordance with the relevant development control plan and the submissions have been considered.

6. 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

8. The final orders to give effect to the parties’ agreement under s 34(3) of the Court are:

1. The Applicant is granted leave to rely on the amended plans, copies of which are contained in Annexure ‘A’.

2. The Applicant is to pay the Respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 and agreed in the amount of $7,350.00 within 28 days.

3. The appeal is upheld.

4. Development application DA-495/2017 for the demolition of all existing buildings and ancillary structures, construction of a residential flat building, comprising one (2) basement levels containing car parking (18 spaces), and 5 levels (containing 16 units) at 26 Railway Terrace, Granville, is approved subject to conditions in Annexure ‘B’.

…………………………

D M Dickson

Commissioner of the Court

Annexure A Part 1 (12.5 MB)

Annexure A Part 2 (7.22 MB)

Annexure A Part 3 (19.8 MB)

Annexure A Part 4 (19.4 MB)

Annexure B (242 KB)

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Amendments

08 April 2020 - Representation details listed on cover sheet corrected.

Decision last updated: 08 April 2020