Byron Clima trading as Sydney Drafting Concepts and Design v City of Parramatta

[2021] NSWLEC 1192

Land and Environment Court

New South Wales

Medium Neutral Citation:

Byron Clima trading as Sydney Drafting Concepts & Design v City of Parramatta [2021] NSWLEC 1192

Hearing dates:

Conciliation conference on 6 April 2021

Date of orders:

23 April 2021

Decision date:

23 April 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

Refer to orders below at [12]

Catchwords:

APPEAL – development application – dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

Draft Parramatta Local Environmental Plan 2020

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Parramatta (former The Hills) Local Environmental Plan 2012

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

State Environmental Planning Policy No 55—Remediation of Land

Category:

Principal judgment

Parties:

Byron Clima trading as Sydney Drafting Concepts & Design (Applicant)
City of Parramatta (Respondent)

Representation:

Counsel:
M Seymour (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Fazzini Lawyers & Consultants (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/356007

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a two-storey dwelling house on the land described as Lot 7 DP 24530 known as 65 Bettington Road Oatlands (the Site). The application also seeks consent for the demolition and removal of the existing structures on the Site. The Site is a regular shaped allotment with an area of 696.7 m². It has a frontage of 18.29 m to Bettington Road and is 38.1 metres deep.

2. The applicant was dissatisfied with the determination of the development application, which was refused by the Council on 3 February 2021. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court’s jurisdiction.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act. The final orders in this appeal, outlined in [12] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

4. The appeal was listed for mandatory conciliation on 6 April 2021, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation.

5. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.  The agreement is supported by a Jurisdictional Note provided by respondent on 6 April 2021.

6. The decision involves leave being granted to the applicant to amend the development application and for development consent to be granted subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments to the development application include:

1. the reduction of the ground floor level by 1.02 m from RL 32.647 to RL 31.6;

2. the relocation of the ‘alfresco’ area to the northern side of the dwelling; and

3. the deletion of any reference to a swimming pool in the landscape plan.

7. These changes reduce the height and bulk of the proposed dwelling house and provide a greater opportunity for landscaping. The parties agree that they also remove the perception of the development presenting as a three-storey building when viewed from Bettington Road.

8. Under 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.

9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons:

1. The appeal was brought pursuant to s 8.7 and was made within the time required by s 8.10 of the EPA Act.

2. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000, consent to the making of the development application has been provided by the owners of the Site.

3. The proposed development is for the purposes of a dwelling house. The site is within zone R2 Low Density Residential under the Parramatta (former The Hills) Local Environmental Plan 2012 (the LEP). The proposed development:

1. is permissible with development consent on land within that zone; and

2. complies with the maximum building height of 9 m prescribed by cl 4.3(2) of the LEP and the associated Height of Buildings Maps.

4. In determining the development application, I have had regard to the objectives of the R2 Low Density Residential zone. Those objectives are:

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

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

• To maintain the existing low density residential character of the area.

5. Council’s records indicate that the Site is identified as being subject to overland flow and, as such, the provisions of cl 7.3 ‘Flood planning’ of the LEP apply to the Site. In accordance with the requirements of cl 7.3(3) of the LEP, I am satisfied that the development:

1. is compatible with the flood hazard of the land;

2. is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties;

3. incorporates appropriate measures to manage risk to life from flood;

4. is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses; and

5. is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

6. The State Environmental Planning Policy No 55—Remediation of Land applies to the site. The site has been used for residential purposes for many years and I am satisfied that the site is unlikely to be contaminated.

7. In accordance with the provisions of the State Environmental Planning Policy (Building & Sustainability Index: BASIX) 2004, BASIX Certificate No 1128916S_02 dated 29 March 2021 has been issued for the proposed development.  I am satisfied that, in combination with the conditions of consent, the requirements of this Policy have been met.

8. The draft Parramatta Local Environmental Plan 2020 (the draft LEP) is in the course of preparation and, when made, is intended to replace the LEP. The draft LEP was placed on public exhibition between 31 August 2020 and 12 October 2020. A report on the draft LEP and the submissions made in relation to it during the exhibition period has not yet been considered by the Council.

9. The draft LEP proposes the introduction of a floor space ratio control that does not currently exist in the LEP and with which the proposed development would not comply.

10. While the provisions of the draft LEP must be taken into consideration in the determination of the appeal in accordance with s 4.15(1)(a)(ii) of the EPA Act, I accept the parties’ agreed submission that the draft LEP is neither imminent nor certain and should therefore be accorded little weight in the determination of the development application: see Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289. I also accept the parties’ joint submission that, despite its non-compliance with the proposed new floor space ratio controls in the draft LEP, the proposed development is nevertheless consistent with the relevant zone objectives in the draft LEP. In particular, the existing character of the area includes larger dwelling sizes and the proposed dwelling house will be compatible with the existing scale and character of the area despite its non-compliance with the proposed floor space ratio controls in the draft LEP.

11. In determining the development application I have also had regard to relevant provisions of The Hills Development Control Plan 2012 (the DCP).

12. The development application was publicly notified by the Council between 7 October 2020 and 21 October 2020. Two submissions, one of which included a petition with 43 signatures, were received by the Council. The issues raised in these submissions were summarised in the Council’s Statement of Facts and Contentions as follows:

1. The scale of the proposed development and removal of vegetation would result in overlooking and privacy impacts;

2. The positioning of the proposed windows would give rise to overlooking and privacy impacts;

3. The bulk and scale of the proposed development would be inconsistent with the existing properties in the street;

4. The proposed development would create a traffic hazard;

5. The impacts associated with earthworks on the Site; and

6. The management of stormwater in the basement level would be inadequate.

13. The Court was told that the objectors were notified on 15 February 2021 of the date of the hearing and invited to attend and/or make a further written presentation. However, no response was received.

10. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

11. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

12. The Court orders that:

1. The Applicant is granted leave to rely on the following amended plans and documents:

DWG NO.	DESCRIPTION	PREPARED BY	REV	DATE
1	Cover Sheet	Sydney Drafting Concepts & Design	12	30.03.2021
3	Site Plan	Sydney Drafting Concepts & Design	12	30.03.2021
4	Basement Floor Plan	Sydney Drafting Concepts & Design	12	30.03.2021
5	Ground Floor Plan	Sydney Drafting Concepts & Design	12	30.03.2021
6	First Floor Plan	Sydney Drafting Concepts & Design	12	30.03.2021
7	Roof Plan	Sydney Drafting Concepts & Design	12	30.03.2021
8	Eastern and Northern Elevations	Sydney Drafting Concepts & Design	12	30.03.2021
9	Western and Southern Elevations	Sydney Drafting Concepts & Design	12	30.03.2021
10	Section A-A	Sydney Drafting Concepts & Design	12	30.03.2021
11	Driveway Gradient Profile/Fence Plan/Front Fence Detail	Sydney Drafting Concepts & Design	12	30.03.2021
15	9am Shadow Diagram	Sydney Drafting Concepts & Design	12	30.03.2021
16	12pm Shadow Diagram	Sydney Drafting Concepts & Design	12	30.03.2021
17	3pm Shadow Diagram	Sydney Drafting Concepts & Design	12	30.03.2021
18	Site Analysis Plan	Sydney Drafting Concepts & Design	12	30.03.2021
19	Construction Management Plan/ Erosion & Sediment Control Plan	Sydney Drafting Concepts & Design	12	30.03.2021
20	Demolition Plan	Sydney Drafting Concepts & Design	12	30.03.2021
L/01	Proposed Landscape Plan	ATC Landscape Architects and Swimming Pool Designers	-	20.09.2020
L/02	Landscape Detail	ATC Landscape Architects and Swimming Pool Designers	-	20.09.2020
L/03	Landscape Specifications	ATC Landscape Architects and Swimming Pool Designers	-	20.09.2020
DOCUMENT		PREPARED BY	REV	DATE
Flood Risk Management Plan		TCSM Engineering Consultants	C	07.02.2021
Colour Schedule		-	-	Filed 01.04.2021
BASIX Certificate No. 1128916S_02		Energy Advance	-	29.03.2021

2. The appeal is upheld.

3. Development Application No. DA/560/2020 for the demolition of existing structures and construction of a 2 storey dwelling house containing a total of 5 bedrooms and 1 study over a basement level and associated stormwater and landscaping works for the on the land at 65 Bettington Road, Oatlands is approved subject to the conditions of consent annexed hereto and marked “A”.

………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (296320, pdf)

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Decision last updated: 23 April 2021