Appwam Pty Ltd v City of Parramatta Council

[2023] NSWLEC 1536

Land and Environment Court

New South Wales

Medium Neutral Citation:

Appwam Pty Ltd v City of Parramatta Council [2023] NSWLEC 1536

Hearing dates:

Conciliation conferences on 28 June, 20 July, 10 August and 17 August 2023

Date of orders:

19 September 2023

Decision date:

19 September 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, as agreed or assessed.

(2) The appeal is upheld.

(3) Development Application No DA/878/2021, as amended, for the demolition of the existing building and construction of an eight-storey mixed use building consisting of a boarding house development with ground floor commercial/retail space over one level of basement parking at 378-380 Church Street, Parramatta (Lots 1 and 2 in DP 234143), is determined by the grant of development consent subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed use – boarding house – cl 4.6 written request – height variation - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Parramatta Local Environmental Plan 2011, cll 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2

Parramatta Local Environmental Plan 2023, cl 1.8A

State Environmental Planning (Affordable Rental Housing) 2009, Div 3, cll 29, 30, 30A

State Environmental Planning Policy (Building Sustainability Index: Basix) 2004

State Environmental Planning Policy (Housing) 2021, Sch 7A, s 2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.98, 2.99

Category:

Principal judgment

Parties:

Appwam Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor) (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
J Cole (Applicant)
Bartier Perry (Respondent)

File Number(s):

2023/57580

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA/878/2021 for the demolition of the existing building and construction of an eight-storey mixed use building consisting of a boarding house development containing 30 rooms and a managers room, with ground floor commercial/retail space over one level of basement parking (proposed development) at 378-380 Church Street, Parramatta, legally described as Lots 1 and 2 in DP 234143 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 June 2023. I have presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended application and granting development consent to the amended application, subject to amended plans and other documents being prepared for which I granted an adjournment.

4. Further information and amended plans were filed with the Court on 23 August 2023, as was a signed agreement prepared in accordance with s 34(10) of the LEC Act, in which the Respondent, as the relevant consent authority, agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application No DA/878/2021 in accordance with the documents listed at [34] (amended application). The key amendments are:

• Various reconfiguration of boarding rooms across the proposed development including changes to balconies;

• Redesign of the entry foyer and service areas;

• Changes to the stormwater design;

• Increase in size of the common indoor and outdoor areas;

• Reduction in overall gross floor area, resulting in a decreased floor space ratio (FSR) from 4.37:1 down to 4.29:1; and

• Provision of requested further documentation.

5. Accompanying the filed s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. 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.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

9. I am satisfied that owner’s consent accompanied the development application.

10. The Respondent notified the development application between 5 October 2021 to 26 October 2021. One submission was received which has been considered by the consent authority.

Parramatta Local Environmental Plan 2011 (PLEP)

11. The development application was lodged to the Respondent on 24 September 2021, prior to the commencement of the Parramatta Local Environmental Plan 2023. Pursuant to the savings provision at cl 1.8A, the PLEP applies to the amended application.

12. The subject site is zoned B4 Mixed Use pursuant to the PLEP, where the proposed development is permissible with consent. Pursuant to cl 2.3 of the PLEP, I have had regard to the objectives of the zone:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To encourage development that contributes to an active, vibrant and sustainable neighbourhood.

• To create opportunities to improve the public domain and pedestrian links.

• To support the higher order Zone B3 Commercial Core while providing for the daily commercial needs of the locality.

• To protect and enhance the unique qualities and character of special areas within the Parramatta City Centre.

13. Demolition requires consent pursuant to cl 2.7 of the PLEP, which forms part of the amended application.

14. Clause 4.3 Height of buildings of the PLEP applies, which allows a maximum height of 24m. The amended application exceeds the height limit, with an overall height of 25m or 4.17% contravention, primarily for the lift overrun. The amended application is supported by an amended cl 4.6 written request authored by Andrew Martin Planning dated July 2023 (written request). The parties agree and I am satisfied that the written request justifies the contravention and that the proposed development is in the public interest for the following reasons:

• The written request demonstrates that compliance with the height development standard is unreasonable or unnecessary in the circumstances of this case. The written request demonstrates that the objectives for the height of the buildings are achieved notwithstanding the contravention through minimising the visibility of the height contravention, minimising view impacts, achieving the sought after built form transition and a lack of environmental impacts.

• The written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard as the contravention will be barely discernible from the streetscape and adjoining properties and the contravention’s lack of environmental impacts.

• The contravention from the proposed development will be in the public interest as it is consistent with the objectives of the height development standard and I also consider that the proposed development is consistent with the zone objectives.

• In accordance with 4.6(5), I have considered the provisions and am satisfied that the contravention will not infringe on those matters.

15. Accordingly, I am satisfied that the written request and proposed contravention to the height development standard is adequately justified in accordance with the matters set out in cl 4.6 of the PLEP.

16. As such, the Applicant’s written request, pursuant to cl 4.6 of the PLEP, seeking to vary the development standard for height of buildings as set out at cl 4.3 of the PLEP, is upheld.

17. Clause 4.4 Floor space ratio of the PLEP applies, which allows a maximum FSR of 4:1. Statement Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) allows a 20% bonus up to 4.8:1 pursuant to cl 29 of the SEPP ARH. The parties agree and I am satisfied on the basis of the amended architectural plans prepared by Habitation Design + Interiors dated 17 July 2023 that the amended application complies with the FSR, at 4.29:1.

18. Clause 5.10 Heritage conservation of the PLEP applies to the site. The amended application is accompanied by an Aboriginal Archaeology Assessment prepared by Comber Consultants dated 8 September 2021 (Aboriginal Archaeology Report). The Aboriginal Archaeology Report concludes that the site has the potential to contain sub-surface Aboriginal objects and identifies the need for an Aboriginal Heritage Impact Permit to undertake the initial testing. In accordance with the agreed jurisdiction statement, the parties have set out the Aboriginal Heritage Impact Permit process which I have reproduced as follows:

“Division 2 of the National Parks and Wildlife Act 1974 enables applicants to obtain an Aboriginal Heritage Impact Permit to undertake works which could disturb heritage items and therefore might otherwise be considered an offence under that Act. There is no specified timeframe for obtaining such a permit and it is not a pre-condition to development consent being issued; and

Page 5 of the Office of Environment and Heritage’s Applying for an Aboriginal Heritage Impact Permit: Guide for Applicants dated 1 May 2011 notes that “if your proposed activity also requires consent or a determination under Part 4 or Part 5 of the EP&A Act you should obtain this first, and then lodge your application for an AHIP…as a general rule OEH will not issue (where it is determined that an application should be granted) an AHIP before any necessary development consent has been obtained or determination made”.

19. I accept the parties’ agreed evidence that the provisions of cl 5.10 of the PLEP have been considered and appropriate conditions of consent are included at Annexure A regarding Aboriginal heritage.

20. The site is also located within close proximity to State and locally listed heritage items, including Prince Alfred Square, Alfred Park Chambers, 366 Church Street and 356 Church Street. I have considered the Statement of Environmental Effects prepared by Andrew Martin Planning dated September 2021 and cl 5.10 of the PLEP and consider that the provisions of cl 5.10 have been met.

21. Clause 5.21 Flood planning of the PLEP applies. The parties agree and I am satisfied that the requirements of cl 5.21 have been met on the basis of the Flood Compliance Report prepared by Molino Stewart dated 2 September 2021 and the stormwater plans at Annexure A.

22. Clause 6.1 Acid sulfate soils applies to the site. The parties agree and I accept that the provisions of cl 6.1 are met with consideration of the Preliminary Site Investigation dated 16 August 2021 and the Detailed Site Investigation Report dated 23 September 2021 both prepared by NEO Consulting Pty Ltd.

23. Clause 6.2 Earthworks of the PLEP applies to the proposed development. I have considered the provisions of cl 6.2, the Statement of Environmental Effects prepared by Andrew Martin Planning dated September 2021, the Geotechnical Investigation Report prepared by Geotechnical Consultants Australia dated 27 September 2021 and the conditions of consent. I agree with the parties that the requirements of cl 6.2 Earthworks have been met.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

24. The development application was submitted prior to the commencement of the Housing SEPP. In accordance with Sch 7A s 2(1)(a), the provisions of the Housing SEPP do not apply.

State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH)

25. As the Housing SEPP does not apply, the provisions of the SEPP ARH apply. Division 3 of the SEPP ARH applies to development for the purposes of boarding houses. The parties agree that the proposed development meets the requirements of cl 29 of the SEPP ARH.

26. On the basis of the Statement of Environmental Effects prepared by Andrew Martin Planning dated September 2021, Plan of Management dated September 2021, and the architectural plans prepared by Habitation Design + Interiors at Annexure A, I am satisfied that the proposed development meets the standards set out in cl 30 of the SEPP ARH through the provision of an appropriate communal area, adequately sized rooms and facilities, maximum occupants and provision of a boarding house manager.

27. The parties agree and I accept that the design of the development is compatible with the character of the local area, in that the proposed built form reflects the rapidly changing Parramatta CBD and its future desired character, in accordance with cl 30A of the SEPP ARH.

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

28. The parties agree and I am satisfied that the proposed development is accompanied by a BASIX Certificate that meets the provisions of the SEPP BASIX.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI)

29. Sections 2.98 and 2.99 of the SEPP TI apply as the proposed development is adjacent to a rail corridor and proposes excavation adjacent to a rail corridor. Transport for NSW have provided their General Terms of Approval for the proposed development, which have been incorporated into the conditions of approval at Annexure A.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

30. The provisions of s 4.6 of the SEPP Resilience and Hazards apply to the site. The proposed development is accompanied by a Preliminary Site Investigation report dated 16 August 2021, Detailed Site Investigation report dated 23 September 2021 and Remedial Action Plan dated 27 July 2023 (RAP) all prepared by NEO Consulting Pty Ltd. The RAP concludes that the site can be made suitable for the proposed development based on the implementation of measures outlined within the report. The RAP has been included as a condition of consent in addition to other suitable remediation conditions. Accordingly, the parties agree and I am satisfied that the provisions of s 4.6 of the SEPP Resilience and Hazards have been adequately addressed.

Conclusion

31. 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.

32. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

33. 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.

34. The Court notes that the Respondent has agreed, as the relevant consent authority, under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application No DA/878/2021 to rely upon the following amended plans and documents:

Document

Date

Amended Architectural Plans prepared by Habitation Design + Interiors:

• Cover Page – F101

• BASIX – F102

• Site Analysis – F103

• 3D Site Analysis – F104

• Site Plan – F105

• Basement Floor Plan – F106

• Ground Floor Plan – F107

• Level One – F108

• Levels Two – Three – F109

• Level Four – F110

• Level Five-Six – F111

• Level Seven – F112

• Roof Plan – F113

• East Elevations – F114

• West Elevations – F115

• North Elevation – F116

• South Elevation – F117

• Section 1 – F118

• Section 2 – F119

• Section 3 – F120

• Section Callout 1 – F121

• Section Callout 2 – F122

• Front Façade Details – F123

• Materials and Finishes – F124

• 3D Montage Views – F125

• Driveway Detail – F126

• CPTED Plans – F127

• Calculation Sheet - F128

• Future Development Plan – F129

• Future Development Roof Plan – F130

• Shadow Diagram 9am – F131

• Shadow Diagram 10am – F132

• Shadow Diagram 11am – F133

• Shadow Diagram 12pm – F134

• Shadow Diagram 1pm – F135

• Shadow Diagram 2pm – F136

• Shadow Diagram 3pm – F137

17 July 2023

Landscape Plans prepared by Paul Scrivener Landscape:

• Landscape site plan & Ground Floor – Issue E Sheet 1 of 2

• Level 4 & 7 Landscape Plan – Issue E Sheet 2 of 2

10 July 2023

Stormwater Plans prepared by Danmor consulting engineers:

• Basement Drainage Plan – ST01 Issue G

• Ground Floor Stormwater Drainage Plan – ST02 Issue G

• Stormwater Drainage Detail Plan – ST03 Issue G

• Upper Level Stormwater Drainage Plan – ST04 Issue G

• Music Catchment and Modelling – ST05 Issue G

31 July 2023

Clause 4.6 Request for Variation to Clause 4.3(2)(Height of Buildings) of Parramatta Local Environmental Plan 2011 prepared by Andrew Martin Planning

July 2023

Design Verification Statement prepared by Habitation Design + Interiors

13 July 2023

National Construction Code Report prepared by Design Right Consulting

7 July 2023

Energy Efficiency Report prepared by Ecoplus Consultants Dynamic Optimum

11 July 2023

Geotechnical Investigation Report prepared by Geotechnical Consultants Australia

27 September 2021

Detailed Site Investigation prepared by NEO Consulting Pty Ltd

23 September 2021

Remedial Actional Plan prepared by NEO Consulting Pty Ltd

27 July 2023

35. The Applicant filed the amended application with the Court on 23 August 2023.

Orders:

36. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, as agreed or assessed.

2. The appeal is upheld.

3. Development Application No DA/878/2021, as amended, for the demolition of the existing building and construction of an eight-storey mixed use building consisting of a boarding house development with ground floor commercial/retail space over one level of basement parking at 378-380 Church Street, Parramatta (Lots 1 and 2 in DP 234143), is determined by the grant of development consent subject to the conditions of consent in Annexure A.

……………………….

S Porter

Commissioner of the Court

Annexure A (389241, pdf)

**********

Decision last updated: 19 September 2023