Awelf Construction Pty Ltd v City of Parramatta Council

[2023] NSWLEC 1108

Land and Environment Court

New South Wales

Medium Neutral Citation:

Awelf Construction Pty Ltd v City of Parramatta Council [2023] NSWLEC 1108

Hearing dates:

20-21 February 2023: final submissions on 6 March 2023

Date of orders:

14 March 2023

Decision date:

14 March 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application No 663/2021 seeking consent for the demolition of existing structures, consolidation of two lots, construction of an eight-storey residential flat building containing 33 units, and 3 levels of basement car parking, associated site works and landscaping at 8-10 Evans Road, Telopea is determined by the grant of consent, subject to conditions of consent at Annexure A.

(3) All exhibits are returned, except for Exhibits A, B, C, D and 7.

Catchwords:

DEVELOPMENT APPLICATION: residential flat building in R4 High Density Residential zone – whether proposed development exhibits design excellence – satisfactory arrangements for designated state infrastructure – public submissions are considered

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 4.46, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 3, 50, 55

Parramatta Local Environmental Plan 2011, cll 4.3, 4.4, 6.1, 6.2, 6.12, 8.1

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6-12, s 10.10

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

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

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 28, 30, Sch 1

Water Management Act 2000, s 90

Cases Cited:

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

Awelf Construction Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/332278

Publication restriction:

Nil

Judgment

1. COMMISSIONER: A residential flat building comprising 33 units with basement car parking is proposed on two existing lots at 8-10 Evans Road, Telopea (the site).

2. The proposed development is the subject of development application No 663/2021, lodged by the Applicant in these proceedings, Awelf Construction Pty Ltd (the Applicant) with the City of Parramatta Council (the Respondent) on 20 July 2021.

3. As the development application remained undetermined after a prescribed period, the Applicant filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court’s jurisdiction on 23 November 2021. On 18 January 2022, the development application was refused by the Parramatta Local Planning Panel, on behalf of the Respondent.

4. On 14 August 2022, the Applicant was granted leave to amend the development application.

5. On the eve of the hearing, the parties advised the Court that all remaining contentions raised in the Respondent’s Amended Statement of Facts and Contentions filed with the Court on 29 August 2022 had been resolved as a consequence of subsequent without prejudice discussions and documentation.

6. To this end, the Applicant filed a Notice of Motion with the Court at 4pm 17 February 2023 seeking to amend the development application, unopposed, and seek leave of the Court to rely upon the amended plans and other documents.

7. While the Respondent advised that it had not been able to obtain certain directions from the Parramatta Local Planning Panel that retains control and direction in relation to the conduct of the appeal pursuant to s 8.15(4) of the EPA Act, sufficient delegation had been secured to agree, as the relevant consent authority, to the amending of the development application in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), noting the amendments were not more than minor for the purposes of s 8.15(3) of the EPA Act.

8. Accordingly, the Applicant was granted leave to rely upon the following amended plans and other documents contained in Exhibit D:

• Amended architectural plans prepared by Architecture Design Studio Pty Ltd (Revision 06) – BASIX stamped plans

• Updated BASIX Certificate No 1216344M_02 prepared by Eco Certificates Pty Ltd dated 8 February 2023

• Updated NatHERS Certificate No #HR-161WVX-01 prepared by Eco Certificates Pty Ltd dated 8 February 2023

• Structural Engineer Letter prepared by BG&E dated 6 February 2023

• Geotechnical Letter prepared by Morrow Geotechnics Pty Ltd dated 8 February 2023

• Evidence of Satisfactory Arrangements:

                º Voluntary Planning Agreement (VPA) executed by Minister administering the EPA Act and the Applicant, and

                º Title searches for property confirming registration of VPA.

9. While the parties acknowledge the contentions are resolved by amendments to the development application, there are objector submissions contained in the Respondent’s bundle (Exhibit 2) and Supplementary bundle (Exhibit 3) that are relevant for the Court to consider.

The site and its context

10. The site is located in the R4 High Density Residential zone identified in the Parramatta Local Environmental Plan 2011 (PLEP), in which residential flat buildings are permitted with consent, where consistent with the objectives identified for the R4 zone that are:

•  To provide for the housing needs of the community within a high density residential environment.

•  To provide a variety of housing types within a high density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide opportunity for high density residential development close to major transport nodes, services and employment opportunities.

•  To provide opportunities for people to carry out a reasonable range of activities from their homes if such activities will not adversely affect the amenity of the neighbourhood.

11. The two lots comprising the site are identified as Lots 386 and 387 in DP 36692, with a combined area of 1,226.8m².

12. While the area is known for its steep topography, the Respondent identifies a slope of 3 degrees from the eastern corner to the western corner of the site in the Amended Statement of Facts and Contentions (Exhibit 1).

13. The existing lots contain two brick buildings, fibre cement garage structures and concrete driveways, similar to the description of existing development on Evans Road.

14. Opposite the site to the west is an existing low rise commercial precinct, landscaped open space and large expanse of concrete car parking within an area zoned B1 Neighbourhood Centre.

Public submissions

15. The development application was notified between 29 July 2021 to 26 August 2021, and again following amendments, between 11 August to 8 September 2022.

16. Public submissions were received by the Respondent as a result of both notification periods. The issues raised in submissions are summarised as follows:

1. Overshadowing of surrounding properties

2. Traffic and parking in the street are likely to be adversely affected

3. Exceedance of height and setback controls results in overdevelopment

4. Inconsistent with existing character of the area

5. The proposed scale of housing is not required in the market

6. Privacy and overlooking to surrounding properties

7. Extent of excavation risks neighbouring properties

8. Local wildlife may be adversely affected

17. For various reasons, the hearing commenced with in-person appearances, and an audio visual link (AVL) for the convenience of experts and residents. However, the Court became aware of limitations with the AVL and directed that provision be made to hear submissions the following day.

18. The Court understands that objectors rely upon their written submissions. For this purpose, two further written submissions were provided by the Respondent in lieu of oral submissions.

19. A resident of Simpson Street, located behind the subject site, objects to the height of the proposal on the grounds that it exceeds the height envisaged by the relevant development control plan. The objection is twofold; that firstly, the site is on the extreme edge of the area identified in the Parramatta Development Control Plan 2011 (PDCP) as the ‘Core’ and secondly, that existing development at 11-13 Evans Road is the appropriate scale for future development in the area.

20. The ‘Core’ appears a reference to Section 4.3.9 of the PDCP, in which the Telopea Precinct is described in the following relevant terms:

“Anchored by the Parramatta Light Rail, the Telopea Precinct is placed to become a transit-oriented development where the distribution of densities and land uses enable a more compact, walkable and sustainable community delivering improved access to public transport and a range of community and retail services.

The planning controls for Telopea facilitate the transformation of the Precinct, including the provision of new retail, community facilities, roads, and the renewal of existing buildings to deliver additional social, affordable and private market housing.

The highest densities will be located in the street block opposite the light rail stop known as the ‘Core’ where retail offerings and community facilities are to be located…”

21. The ‘Core’ is an area opposite which the highest densities are to be located, according to the PDCP. This appears consistent with controls permitting greater intensity of development evident in the Height of Building Map at cl 4.3 of the PLEP, and the Floor Space Ratio (FSR) map at cl 4.4 of the PLEP.

22. The Height of Buildings Map is re-produced below, in part, and the site marked in red:

23. The FSR Map is also re-produced below, in part, and the site marked in red:

24. The development at 11-13 Evans Road is also identified by a resident of Tilley Street, located further to the east of the site, as the preferred bulk and scale for future development. As observed above, this preference appears to be in some contrast to the intensity of development permitted, or encouraged, by the controls on land opposite the ‘Core’ as to “facilitate the transformation of the Precinct, including the provision of new retail, community facilities, roads, and the renewal of existing buildings to deliver additional social, affordable and private market housing.”.

25. The Respondent helpfully notes in the Assessment Report prepared 18 January 2023 (Assessment Report) that the site was subject to an amendment to the PLEP that came into effect on 20 February 2020. At that time, the permitted height on the site was lifted from 15m to 28m, and the FSR was increased from 2:1, to 2.4:1. As stated earlier, the development complies with the height and FSR controls and so cannot be said to represent a scale that is at odds with the character intended by the controls for the area.

26. The resident of Tilley Street also considers the extent of excavation to be at risk from groundwater and potential flooding. The site is not identified as flood affected and appropriate onsite water detention and bio-retention basins are provided.

27. A lack of local infrastructure is also identified as a reason for objection, with limited capacity at the local high school, and the potential for local shops to be demolished in the future development of the Telopea Precinct, neither of which I regard as grounds for refusal of development of a kind permitted in the R4 zone.

28. The development application was accompanied by a Traffic Assessment Report prepared by Terrafic Pty Ltd dated 29 June 2021, that I note was subject to a detailed assessment by the Respondent’s traffic engineer. The parties agree no adverse impact on the surrounding road network will arise. I accept the parties’ agreement, noting the provision of 40 car parking spaces, including eight visitor parking spaces and 35 bicycle spaces.

29. According to the Assessment Report, resident concerns at the potential adverse impacts of the development on local wildlife have been considered by the Respondent’s Open Space and Natural Resources Officer, reaching the conclusion that as the site is a suburban landscape without a natural waterway or waterbody, it is unlikely to be a habitat for threatened species.

Expert evidence

30. The Court was assisted by written expert evidence from the following:

1. On behalf of the Respondent: Mr Brett Newbold, urban design and Mr Darren Wan, town planning.

2. On behalf of the Applicant: Mr Peter Smith, urban design, and Mr Andrew Robinson, town planning.

31. The experts conferred in the preparation of a joint report filed with the Court on 14 September 2022 (Exhibit 4).

32. As a result of the discussions and amendments at [8], the Court directed that the experts confer further, which resulted in a supplementary joint expert report filed 17 February 2023 (Exhibit 5).

33. The supplementary joint expert report records agreement between the experts that the amendments at [8] demonstrates a high regard for the design quality principles at Sch 1 of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65), and the Apartment Design Guide (ADG).

34. The experts also agree that the amended application exhibits design excellence in accordance with those matters set out at cl 6.12 of the PLEP, and positively responds to the principles and objectives at Section 4.3.9 of the PDCP.

The proposed development exhibits design excellence

35. As stated, the experts agree the proposal exhibits design excellence, and record their reasons in a design excellence statement filed with the Court.

36. While the particularising of those matters set out at 6.12 of the PLEP is unquestionably of assistance to the Court, for the reasons shown by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 (Toga), it is not sufficient for the Court to form an opinion as to whether the proposed development does or does not exhibit design excellence by having regard to the evidence of the urban design experts alone.

37. Instead, cl 6.12 of the PLEP prescribes a framework for deciding whether a development exhibits design excellence (Toga, at [70]) and the Court must have regard to the particular terms of, and answer the particular questions raised by, the matters in the design excellence provisions (Toga, at [75]).

38. Clause 6.12 of the PLEP is in the following terms:

6.12 Design excellence

(1) The objective of this clause is to ensure that development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Parramatta.

(2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land identified as “Parramatta North Urban Renewal Area” and “Telopea Precinct” on the Key Sites Map or as “B” on the Design Excellence Map.

(3) Development consent must not be granted for development to which this clause applies unless the consent authority considers that the development exhibits design excellence.

(4) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters—

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c) whether the development detrimentally impacts on view corridors,

(d) whether the development detrimentally impacts on any land protected by solar access controls established in the Parramatta Development Control Plan,

(e) the requirements of the Parramatta Development Control Plan,

(f) how the development addresses the following matters—

(i) the suitability of the land for development,

(ii) existing and proposed uses and use mix,

(iii) heritage issues and streetscape constraints,

(iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v) bulk, massing and modulation of buildings,

(vi) street frontage heights,

(vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity,

(viii) the achievement of the principles of ecologically sustainable development,

(ix) pedestrian, cycle, vehicular and service access, circulation and requirements,

(x) the impact on, and any proposed improvements to, the public domain.

…

(8) In this clause—

Parramatta Development Control Plan means the Parramatta Development Control Plan, as in force at the commencement of State Environmental Planning Policy Amendment (Telopea Precinct) 2018.

39. The parties agree, as I do, that the matters at subcll 6.12(4)(c) and (d) do not apply in the circumstances of this proposal.

40. In considering whether the proposal exhibits design excellence, I have formed the following opinions with regard to those matters set out at subcll 6.12(4)(a)-(f) of the PLEP.

41. Firstly, in respect of suitability of the land (subcl 6.12(4)(a)), I agree with and adopt the position of the experts that the Telopea Precinct is an area in transition, where a transformation is likely from the existing low density residential neighbourhood to a future character as a transit-oriented development where the distribution of densities and land uses enable a more compact, walkable and sustainable community delivering improved access to public transport and a range of community and retail services.

42. I find a high standard of architectural design, materials and detailing appropriate to the building type and location (subcl 6.12(4)(a)) will be achieved because:

1. Selected materials such as face brick with appropriate capping detailing, prefinished metal cladding and concrete provide a durable finish that is relatively easy to maintain for the life of the building, minimises reflectivity and provides modulation to the built form.

2. The shape and orientation of openings has regard to the privacy impacts on adjacent land (considering the likely future context), and respond to different orientations through shading to windows to the northern and western façades.

3. Apartment layouts achieve very high levels of natural cross ventilation (82%), and midwinter solar access for balconies and living areas (82%).

4. Consistency with the desired future character, general objectives and design principles for the Telopea Precinct as set out in 4.3.9 of the PDCP.

43. I also find the form and external appearance of the development will improve the quality and amenity of the public domain (subcl 6.12(4)(b)) because:

1. The amended landscape plans prepared by Zenith Landscaping Designs, dated 27 July 2022 depict a depth, extent and planting plan for landscaped areas that, when understood in relation to built form, provides for a positive relationship with future redevelopments on neighbouring properties.

2. Appropriate massing and modulation of built form is demonstrated by conforming to the street wall height and upper level setback preferred by Section 4.3.9.2 of the PDCP, and the proposed street frontage is sympathetic with recent development opposite the site.

3. Appropriate building separation is provided that protects amenity, daylight penetration, privacy between adjoining developments and increases opportunities for solar access and amenity to the public domain.

4. Convenient pedestrian and cycle access is proposed, that are both elements of a transit-oriented redevelopment precinct, which is a stated objective in the Telopea Precinct, according to Section 4.3.9 of the PDCP.

5. Service access has been integrated into the building façade, rather than in the landscape and an appropriate quantum and quality of landscape planting is proposed within the front setback to the extent that the PDCP setback allows, that will improve the public domain on Evans Road.

44. I have also had regard to the requirements of the PLEP (subcl 6.12(4)(e)) as follows:

1. I note Section 4.3.9.2 ‘Development and design’ provides for design excellence, as defined by the PLEP, to ensure that new development contributes positively to the natural, cultural, visual and built character values of the area.

2. The site frontage to Evans Road is between 30.48m, as stated in the Amended Statement of Environmental Effects (Amended SEE) (Exhibit B, Tab 2) and 31.7m, as stated in the Assessment report (Exhibit 2, Tab 16). On either assessment, the frontage exceeds the minimum of 24m required Section 4.3.9.2, Control C.2 and the architectural plans depict front setbacks between 4m and 6m, consistent with Control C.3. The rear setback is 10m at the ground floor, consistent with Control 5. Excavation and basement car parking appears consistent with Controls C.11-C.14. A six-storey street wall is provided, with a further setback to the levels above, in accordance with Control C.20.

45. Accordingly, I conclude that the proposed development exhibits design excellence.

Other jurisdictional matters

Parramatta Local Environmental Plan 2011 (PLEP)

46. The proposal is within the height of 28m permitted by cl 4.3 of the PLEP and is within the FSR of 2.4:1 permitted by cl 4.4 of the PLEP.

47. The site is located within an area identified by the relevant map at cl 6.1(2) of the PLEP as affected by Class 5 Acid Sulfate Soils. However, the site is not within 500m of land identified of another class, and excavation is not proposed below the level of 5m Australian Height Datum and so there is no impediment to consent posed by this provision.

48. The proposed development comprises excavation for basement car parking. In deciding whether development consent for earthworks is warranted, the Court must consider the following matters set out at cl 6.2(3) of the PLEP:

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

(b)  the effect of the proposed development on the likely future use or redevelopment of the land,

(c)  the quality of the fill or the soil to be excavated, or both,

(d)  the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e)  the source of any fill material and the destination of any excavated material,

(f)  the likelihood of disturbing relics,

(g)  the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

49. I have considered the matters above by reference to the following plans and other documents:

1. The Geotechnical Report prepared by Morrow Geotechnics Pty Ltd dated 10 May 2022 (Exhibit B, Tab 7) notes four bore holes were drilled to a depth of 12m in locations shown in Figure 1 with limited or no groundwater encountered, suggesting localised saturation and not presence of a water table in the vicinity.

2. Amended stormwater plans prepared by Telford Civil dated 27 July 2022 (Exhibit 2, Tab 11) indicating the catchment plan, and extent of onsite retention.

3. The Amended SEE states, at p 18 that excavated material will be disposed of at a licensed facility, identified in the Waster Management Plan (Exhibit A, Tab 15) as the Elizabeth Drive, Kemps Creek facility.

4. Structural Engineer Letter prepared by BG&E dated 6 February 2023 advising on the method of excavation and support. (Exhibit D, Tab 6).

50. Clause 8.1 of the PLEP requires satisfactory arrangements to be made for the provision of designated State public infrastructure in certain circumstances. Subclause (2) precludes the grant of consent unless the Secretary has certified in writing that satisfactory arrangements have been made in respect of the development, where that development is for the purposes of residential accommodation in an intensive urban development area.

51. The site is located within the Telopea Precinct, on the Intensive Urban Development Area Map – Sheet IUD_014 of the PLEP.

52. The Applicant submitted a letter of offer to enter into a VPA to the Minister for Planning dated 18 May 2022 (Exhibit B, Tab 3). The VPA was exhibited between 21 September 2022 to 20 October 2022, and was subsequently registered on the title for the site (Exhibit D, Tab 8).

53. After the Court reserved its decision, and consistent with direction of the Court, the Applicant also provided a document titled “Secretary’s Certificate Satisfactory Arrangements for designated State public infrastructure”, dated 22 February 2023, stating that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure.

State Environmental Planning Policy (Resilience and Hazards) 2021

54. On the basis of the assessment evident in the Assessment Report prepared by the Respondent, and the statements contained in the Amended SEE, I accept that the site is not contaminated, and is suitable for the purpose for which development is proposed, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65)

55. Where an application relates to residential apartment development, cl 50 (1A) of the EPA Regulation requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50 (1AB), which include attestations of a kind found at cl 28 (2)(b) and (c) of SEPP 65.

56. The design statement, prepared by Mr Pavlo Doroch (Arch Reg No 9170) (Exhibit E), assists the Court in considering the design quality of the proposal when evaluated in accordance with the design quality principles contained at Sch 1 of SEPP 65, as required by cl 28 of SEPP 65.

57. The design statement is in a form consistent with cl 50(1AB) of the EPA Regulation, and so addresses the design quality principles and relevant parts of the ADG, which also satisfies me as to those matters about which I must form an opinion at cl 30(2) of SEPP 65.

Water Management Act 2000

58. The proposal is integrated development, pursuant to s 4.46 of the EPA Act, and was referred to Water NSW under s 90(2) of the Water Management Act 2000. On 9 February 2023, Water NSW advised of General Terms of Approval that are incorporated in proposed conditions of consent.

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

59. I am satisfied that the development application is accompanied by a BASIX certificate (Cert No. 1216344M_02 dated 8 February 2023), prepared by Eco Certificates Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

60. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site and clearing of existing vegetation is proposed.

61. An Arboricultural Impact Assessment Report prepared by Arbor Skills dated 23 March 2022 (Exhibit B, Tab 8) identifies the number and species of trees proposed to be removed by the proposal, and those proposed to be retained.

62. By virtue of certain savings and transitional provisions, Chs 6-12 of the Biodiversity SEPP as at 20 November 2022 apply.

63. The site is within the Sydney Harbour Catchment, and I have considered the relevant planning principles at s 10.10 of the Biodiversity SEPP. By reference to those documents at [49(2)], and with particular regard to MUSIC modelling results on sheet 108 of the Stormwater Concept Plans, I have formed the view that the development will improve water quality of urban runoff, and reduce the frequency of urban runoff, that will have the effect of protecting The Ponds Creek cited in public submissions.

Orders

64. The Court orders that:

1. The appeal is upheld.

2. Development application No 663/2021 seeking consent for the demolition of existing structures, consolidation of two lots, construction of an eight-storey residential flat building containing 33 units, and 3 levels of basement car parking, associated site works and landscaping at 8-10 Evans Road, Telopea is determined by the grant of consent, subject to conditions of consent at Annexure A.

3. All exhibits are returned, except for Exhibits A, B, C, D and 7.

……………………

T Horton

Commissioner of the Court

Annexure A (347636, pdf)

**********

Decision last updated: 14 March 2023