AZ No. 7 Investments Pty Ltd v City of Parramatta Council
[2019] NSWLEC 1161
•29 March 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: AZ No. 7 Investments Pty Ltd v City of Parramatta Council [2019] NSWLEC 1161 Hearing dates: Conciliation conference on 4 March 2019 Date of orders: 29 March 2019 Decision date: 29 March 2019 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [12] below
Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979
Hornsby Local Environment Plan 2013
Land and Environment Court Act 1979Texts Cited: Hornsby Development Control Plan 2013 Category: Principal judgment Parties: AZ No. 7 Investments Pty Ltd (Applicant)
City of Parramatta Council (Respondent)Representation: Solicitors:
G McKee, McKees Legal Solutions (Applicant)
C Drury, Sparke Helmore Lawyers (Respondent)
File Number(s): 2018/253416 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal against refusal by the City of Parramatta Council (hereafter the Council) of Development Application (DA) 1003/2017, which seeks demolition of structures and Torrens title subdivision of one lot into two lots on Lot 90 DP 203054, also known as 42 Bambara Crescent, Beecroft (the site).
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This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979).
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The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 4 March 2019. I presided over the conciliation conference. There was one resident heard in objection at this conciliation, on issues relating to existing flooding and potential privacy impacts.
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Following a brief adjournment of 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 is to uphold the appeal for DA/1003/2017 and grant consent with conditions.
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Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to DA/1003/2017 under appeal with conditions.
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The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: Hornsby Local Environment Plan 2013 (HLEP 2013); and Hornsby Development Control Plan 2013 (HDCP 2013).
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With regards to the HLEP 2013, the parties have agreed that the proposed development does not contravene any relevant development standards and resolves the contentions, and therefore satisfies the specific requirements of the HLEP 2013 as follows:
Clauses 1.2 and 2.3 - the site is located within an R2 Low Density Residential zone. The proposed subdivision is permissible in the zone, and is not inconsistent with the aims of the plan and zone objectives.
Clause 6.2 – the requirements of this clause are satisfied based on the further supporting information and amended plans which relate to fill and stormwater management.
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Based on the plans and supporting documents there is no inconsistency with the HDCP 2013.
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The issue of existing and potential future adverse flooding raised by the resident is resolved to the parties’ satisfaction by the proposed stormwater management plan and earthworks.
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I am satisfied that there are no jurisdictional impediments to the agreements for this appeal, and that the DA, based on the amended plans with supporting documentation as provided in the conditions of consent satisfies the requirements of s 4.15(1) of the EPA Act 1979.
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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 1979 to dispose of the proceedings in accordance with the parties' decision.
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The Court orders:
Leave is granted to the Applicant to rely upon the amended plans and document listed in condition 1 of Annexure “A” hereto.
Pursuant to section 8.15(3) of the EP&A Act, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in the sum of $4,500.
The appeal is upheld.
Development Application DA/1003/2017 for the demolition of existing structures and Torrens Title subdivision of 1 lot (being Lot 90 in Deposited Plan 203054) into 2 lots at 42 Bambara Crescent, Beecroft, NSW is approved subject to the conditions set out in Annexure “A” to this agreement.
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Sarah Bish
Commissioner of the Court
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Annexure A
Decision last updated: 11 April 2019
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