Brown v City of Parramatta Council

[2024] NSWLEC 1098

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brown v City of Parramatta Council [2024] NSWLEC 1098

Hearing dates:

Conciliation conference held on 26 February 2024

Date of orders:

07 March 2024

Decision date:

07 March 2024

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA/648/2021 seeking demolition of existing structures, tree removal and construction of attached dual occupancy dwellings with Torrens title subdivision into two lots on Lot 18 Sec 2 Deposited Plan 1026, also known as 9 Mars Street, Epping is determined by the grant of consent, and subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy dwellings – Torrens title subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2000, cll 49, 55, 55A

Parramatta Local Environmental Plan 2011, cll 2.3, 5.21

Parramatta Local Environmental Plan 2023, cl 1.8A

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

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

Texts Cited:

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

Hilton Thomas Brown (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
G Visentin (Solicitor) (Applicant)
M Podinic (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Bartier Perry (Respondent)

File Number(s):

2023/69039

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA/648/2021 by the City of Parramatta Council (the Council), seeking demolition of existing structures, tree removal and construction of attached dual occupancy dwellings with Torrens title subdivision into two lots on Lot 18 Sec 2 Deposited Plan 1026, also known as 9 Mars Street, Epping (hereafter the site).

Background

2. Development Application DA/648/2021 (the DA) was lodged with Council on 15 July 2021, with one submission in objection received during the notification period.

3. After being internally reviewed, the DA was refused, with the Applicant advised of the determination on 9 September 2022.

4. The Applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing with an onsite view, and then held in person.

6. The Council agreed for the Applicant to amend the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

7. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings, pursuant to s 34(3) of the LEC Act. The parties agree that the contentions of Council have been resolved, and that the issue raised by the resident objector has been considered in the merit assessment.

8. Pursuant to s 34(3) of the LEC Act, 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 of the EPA Act and being satisfied, in consideration of s 4.15(1), to grant consent to Development Application DA/648/2021, subject to conditions in Annexure A.

Jurisdictional prerequisites

9. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the DA. The following jurisdictional requirements have been specifically considered and are considered satisfied:

1. Parramatta Local Environmental Plan 2011 (PLEP):

1. Pursuant to cl 2.3 of the PLEP, the proposed development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent in this zone and addresses the relevant zone objectives. The DA is saved from consideration of the recently gazetted Parramatta Local Environmental Plan 2023, based on the date of lodgement, pursuant to cl 1.8A.

2. The amended application is supported by plans and documents, that sufficiently address the relevant objectives, aims, standards and provisions of the PLEP.

3. Relevant to the contentions raised by Council, the site is located with an area mapped as being flood prone. The amended DA relies on an Overland Flood Report, prepared by GRC Hydro, dated 21 April 2022, which is augmented by Flood Maps, prepared by ACOR Consultants, dated 7 August 2023. The amended design of the dwellings considered the results of the flood mapping. The requirements of cl 5.21 of the PLEP are assessed and considered satisfied.

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

1. Pursuant to the requirements established in cl 55A of the EPA Reg, a BASIX Certificate (1178138M_03) issued on 23 February 2024 is relevant to the proposed development, as amended, and is prepared consistent with the requirements of the SEPP BASIX and EPA Reg.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The site has historically been used as a residence and Council is satisfied there are no records of contamination relating to the site. The contamination status of the site is appropriately considered, and the relevant requirements of s 4.6 of the SEPP Resilience are addressed.

4. Parramatta Development Control Plan 2011 (PDCP):

1. The relevant requirements of the PDCP are generally complied with based on the amended plans, supporting documents to the amended DA and the conditions of consent.

2. The original application was publicly notified in accordance with the PDCP. The submission received during the notification period has been considered in Council’s merit assessment of the DA, with the issue of privacy addressed by amendments to the building design.

3. The Council agrees that the proposed development is assessed as not causing unsatisfactory amenity impacts to adjoining properties or the streetscape.

10. Pursuant to cl 49 of the EPA Reg, the Applicant has satisfied the Court with the provision of consent from the landowner relevant to the site. All proposed works are explained to the Court as being within the site.

Grant of consent

11. Based on the amended plans and supporting documents to the DA, together with a jurisdictional assessment and expert report, the parties confirm to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to the orders sought and that Development Application DA/648/2021, as amended, should be determined by the grant of consent.

13. As the parties' agreement 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.

14. The Court notes that:

1. The Court granted leave to amend the Development Application DA/648/2021 by way of Notice of Motion with supporting affidavits on 21 July 2023, 10 August 2023 and 25 September 2023.

2. The City of Parramatta Council, as the relevant consent authority, has agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, for the Applicant to amend Development Application DA/648/2021, as follows:

1. Driveway sections, prepared by ACOR Consultants, Drawing No. C7, Issue H, dated 14 November 2023,

2. BASIX Certificate 1178138M_03, prepared by Fry’s Energywise, dated 23 February 2024, and

3. Flood Maps, prepared by ACOR Consultants, Revision A, dated 7 August 2023, comprising:

Sheet	Title
FS1	Pre-Development 1% AEP Flood Depth and Level Plan (2080 Climate Change) + 19% Rainfall Increase
FS2	Pre-Development 1% AEP Flood Velocity Plan (2080 Climate Change) + 19% Rainfall Increase
FS3	Pre-Development 1% AEP Provisional Flood Hazard Plan (2080 Climate Change) + 19% Rainfall Increase
FS4	Pre-Development 1% AEP Flood Hazard Vulnerability Classification Plan (2080 Climate Change) + 19% Rainfall Increase
FS5	Post-Development 1% AEP Flood Depth and Level Plan (2080 Climate Change) + 19% Rainfall Increase
FS6	Post-Development 1% AEP Flood Velocity Plan (2080 Climate Change) + 19% Rainfall Increase
FS7	Post-Development 1% AEP Provisional Flood Hazard Plan (2080 Climate Change) + 19% Rainfall Increase
FS8	Post-Development 1% AEP Flood Hazard Vulnerability Classification Plan (2080 Climate Change) + 19% Rainfall Increase
FS9	Post-Development 1% AEP Flood Depth and Level Plan (2080 Climate Change) + 19% Rainfall Increase
FS10	Post-Development 1% AEP Flood Velocity Plan (2080 Climate Change) + 19% Rainfall Increase
FS11	Post-Development 1% AEP Provisional Flood Hazard Plan (2080 Climate Change) + 19% Rainfall Increase
FS12	Post-Development 1% AEP Flood Hazard Vulnerability Classification Plan (2080 Climate Change) + 19% Rainfall Increase
FS13	Post-Development 1% AEP Flood Level Impact Plan (2080 Climate) + 19% Rainfall
FS14	Post-Development 1% AEP Flood Level Impact Plan (2080 Climate) + 19% Rainfall
FS15	Flood Level Impact Plan (Existing VS 2080 Climate + 19% Rainfall Conditions)

3. The Applicant has filed the amendments to the DA on 23 and 26 February 2024.

15. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/648/2021 seeking demolition of existing structures, tree removal and construction of attached dual occupancy dwellings with Torrens title subdivision into two lots on Lot 18 Sec 2 Deposited Plan 1026, also known as 9 Mars Street, Epping is determined by the grant of consent, and subject to the conditions set out in Annexure A.

…………………………

S Bish

Commissioner of the Court

Annexure A (297529, pdf)

**********

Decision last updated: 07 March 2024