Australia YMCI Pty Ltd v City of Parramatta Council

[2025] NSWLEC 1283

Land and Environment Court

New South Wales

Medium Neutral Citation:

Australia YMCI Pty Ltd v City of Parramatta Council [2025] NSWLEC 1283

Hearing dates:

Conciliation conference on 28 April 2025

Date of orders:

28 April 2025

Decision date:

28 April 2025

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The orders of the Court, as amended on 29 April 2025, are as follows:

The Court orders:

(1) The applicant is to pay the Council’s costs thrown away as a result of the amendment of the application, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2)   The appeal is upheld.

(3)   Development Application No DA/965/2022 for the proposed 3 lot Torrens title subdivision, bulk earthworks, remediation works, site infrastructure works including construction of a new road, utility services, drainage works, and works to create a future public open space at 15-35 Carter Street, Lidcombe and Lot 1 DP1260687, as amended, is determined by grant of consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – based on amended plans and conditions – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 8.7

Land and Environment Court Act 1979, s 34 

Sydney Water Act 1994, s 78

Auburn Local Environmental Plan 2010, cll 2.2, 2.3, 2.6, 6.1, 6.2, 6.5, 7.1

Environmental Planning and Assessment Regulation 2021, ss 23, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 ss 6.6, 6.7, 6.8, 6.9, 6.10

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Parramatta Local Environmental Plan 2023, cl 1.8A

Category:

Principal judgment

Parties:

Australia YMCI Pty (Applicant)
City of Parramatta Council (First Respondent)
Minister for Education and Early Learning (Second Respondent)

Representation:

Counsel:
N Rodwell (Solicitor)(Applicant)
K Huxley (Solicitor) (First Respondent)

Solicitors:
Addisons (Applicant)
Holding Redlich (First Respondent)
Maddocks (Second Applicant)

File Number(s):

2024/00121594

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal against the City of Parramatta Council’s refusal of development application DA/965/2022, which sought consent for development described as three-lot Torrens title subdivision, bulk earthworks and site infrastructure within the Carter Street Precinct including remediation works, stormwater and drainage works, construction of a new road, utility services works, and landscaping on land known as 15, 29 and 35 Carter Street, Lidcombe (Lot 301 in DP541070, Lot 1 in DP1260687, Lot 12 in DP1217641, Lots 26 – 28 in DP225350) (site).

2. The site is located within the Carter Street Priority Precinct (Precinct), in the City of Paramatta Local Government Area. The Site is bound by Hill Road to the west, Stockyard Boulevard to the north-east, Ibis Street to the south-east and Carter Street to the south.

3. The site comprises an area of 5.276 hectares.

4. The DA was notified from 16 December 2022 to 11 January 2023. No submissions were received during this period.

5. On 13 January 2025, the Sydney Olympic Park Authority, being the authority for area comprising Sydney Olympic Park made a submission in relation to the DA.

6. Pursuant to s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP), the DA was referred to the electricity supply authority for the area, being Ausgrid. On 14 December 2022, Ausgrid recommended the approval of the DA, subject to the imposition of conditions, which are incorporated into the conditions of development consent at Annexure A.

7. The Council referred the DA to Sydney Water in accordance with s 78 of the Sydney Water Act 1994. On 10 January 2023, Sydney Water indicated that it could not confirm servicing availability for the DA. The Council imposed condition 85, requiring the applicant obtain a compliance certificate from Sydney Water prior to the issue of any Occupation Certificate.

8. On 23 November 2023, the Council approved the DA, subject to conditions of development consent.

9. On 2 April 2024, the applicant filed the Class 1 Application (Application) with the Court, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), in relation to the Council’s decision to impose certain conditions of consent, as set out in the Application.

10. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was first held on 28 April 2025.

11. The parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s 34 written agreement dated 16 April 2025 (Agreement).

12. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant consent to the DA.

13. The pre-conditions that must be satisfied before the Court can exercise its functions are identified in a written submission by the parties.

14. After a consideration of the submission 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 for the following reasons.

Preconditions

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. Chapter 6 (Water Catchments) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the DA as the site is on land in the Sydney Harbour Catchment Area.

16. For the purposes of s 6.6(2) of the Biodiversity and Conservation SEPP the parties agree and I am satisfied that:

1. the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial having regard to the conditions of consent imposed to regulate sediment and erosion control (conditions 45 and 46 at Annexure A), dust minimisation (condition 55 at Annexure A) and the collection and discharge of stormwater (conditions 76 and 31 at Annexure A); and

2. the impact on water flow in a natural waterbody will be minimised by reason of the conditions of consent.

17. For the purposes of s 6.7(2) of the Biodiversity and Conservation SEPP, the parties agree and I am satisfied that:

1. the DA will have a minimal direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation;

2. the DA will not have a direct, indirect or cumulative adverse impact on aquatic reserves;

3. the DA does not involve the clearing of riparian vegetation;

4. the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody will be minimised; and

5. the DA will not have an adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area.

18. For the purposes of s 6.8(2) of the Biodiversity and Conservation SEPP, the parties agree and I am satisfied that the DA will not:

1. if there is a flood, result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody; and

2. have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

19. For the purposes of s 6.9(2) of the Biodiversity and Conservation SEPP, the parties agree and I accept that the land does not currently provide public access to and from natural waterbodies, and no public access is proposed to and from natural waterbodies as part of the development the subject of the DA.

20. For the purposes of s 6.10 of the Biodiversity and Conservation SEPP, the parties agree and I accept that the development is not likely to have an adverse environmental impact on any adjacent or downstream local government areas (See Table 7, assessment table p 31 of the statement of environmental effects – Tab 2 to the Class 1 Application).

Statement Environmental Planning Policy (Resilience and Hazards) 2021

21. For the purposes of s 4.6 of the Statement Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the parties agree and I accept that:

1. the detailed site investigation (Detailed Site Investigation Report – Tab 09 to the Class 1 Application) concluded that:

1. there were no identified contaminants within each media assessed as part of the investigation that would present an unacceptable risk to future on-site receptors under the proposed land uses; and

2. it is considered that the site is or can, in cases where impacts are identified and subject to appropriate management, be made suitable for the purpose for which the development is proposed to be carried out;

2. the land will be suitable, after remediation in accordance with conditions 12 and 13, for the purpose for which the DA is proposed to be carried out (Assessment Report p 9).

22. Relevantly, conditions 12 and 13 of the conditions of consent at Annexure A, require remediation to be carried out in accordance with any approved Remediation Action Plan endorsed by an independent NSW EPA accredited auditor, to satisfy the requirements of the Resilience and Hazards SEPP.

Auburn Local Environmental Plan 2010

23. The DA was made before the commencement of the Parramatta Local Environmental Plan 2023 (PLEP). Accordingly, by reason of cl 1.8A(1) of the PLEP, the Auburn Local Environmental Plan 2010 (ALEP) continues to apply to the DA.

24. The site has multiple zones including RE1 public recreation, SP2 infrastructure and R4 high density residential. Subdivision is permissible within all zones under cl 2.6 of the ALEP.

25. Clause 2.3 requires the consent authority to have regard to the zone objectives when determining a development application. Given the nature and scope of the DA, the parties agree and I accept that the DA is not inconsistent with the objectives of the zones.

26. For the purposes of cl 6.1(4) of the ALEP, the parties agree and I accept that:

1. The Detailed Site Investigation Report (DSI) assesses acid sulfate soils, based on Acid Sulphate Soils Management Plan, stage 3C & 3D Carter Street Priority Precinct, prepared by DLA Environmental Services Pty Ltd dated December 2016 (2016 Management Plan) prepared for the wider Precinct development (referred to at p 11, Detailed Site Investigation – Tab 09 to the Class 1 Application). The Detailed Site Investigation indicates that the 2016 Management Plan sufficiently informed the findings of the DSI. Accordingly, an acid sulfate soils management plan is not required for the works the subject of this DA (part 3.7.2, Detailed Site Investigation – Tab 09 to the Application); and

2. the consent authority has confirmed the assessment by notice in writing to the person proposing to carry out the works (p 10, Council’s Assessment Report).

27. The parties have considered the matters pertaining to earthworks in cl 6.2(3) of the ALEP (Table 7, SEE – Tab 02 to the Class 1 Application).

28. For the purposes of cl 6.5 of the ALEP, the parties agree and I am also satisfied that services essential for the proposed development are available or that adequate arrangements have been made to make them available when required (p 10, Council’s Assessment Report).

29. The parties have considered the Carter Street Precinct development framework for the purposes of cl 7.1 of the ALEP (page 11, Council’s Assessment Report).

Environmental Planning and Assessment Regulation 2021

30. Pursuant to s 23 of the Environmental Planning and Assessment Regulation 2021, the DA is made with the written consent of the owner of the land (Tab 3 of the Class 1 Application).

31. The conditions of development consent annexed to the section 34 agreement are reasonable, and relate to the development for which consent is sought, and are for a proper planning purpose and otherwise permissible pursuant to s 4.17 of the EPA Act.

Conclusion and orders

32. The Court notes that:

1. The Council has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application No DA/965/2022 to rely on the amended plans and documents specified in the table below and referred to in Condition 3 of Annexure A.

Document/Plan Revision and Issue No.	Document/Plan Name	Date
Drawing No. S400 Issue 01	Option 3 – General Arrangement Plan	21.09.23
Drawing No. S401 Issue 01	Option 3 – Bulk Earthworks Plan	21.09.23
Drawing No. S402 Issue 01	Option 3 – Section Plan 1	21.09.23
Drawing No. S403 Issue 01	Option 3 – Section Plan 2	21.09.23

33. The orders of the Court, as amended on 29 April 2025, are as follows:

34. The Court orders that:

1. The applicant is to pay the Council’s costs thrown away as a result of the amendment of the application, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The appeal is upheld.

3. Development Application No DA/965/2022 for the proposed 3 lot Torrens title subdivision, bulk earthworks, remediation works, site infrastructure works including construction of a new road, utility services, drainage works, and works to create a future public open space at 15-35 Carter Street, Lidcombe and Lot 1 DP1260687, as amended, is determined by grant of consent, subject to the conditions set out in Annexure A.

S Dixon

Senior Commissioner of the Court

Annexure A

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Decision last updated: 29 April 2025