Canniesburn Pty Ltd ATF Syd Recon Trust v City of Parramatta Council

[2023] NSWLEC 1567

Land and Environment Court

New South Wales

Medium Neutral Citation:

Canniesburn Pty Ltd ATF Syd Recon Trust v City of Parramatta Council [2023] NSWLEC 1567

Hearing dates:

Conciliation conference on 20 July 2023

Date of orders:

27 September 2023

Decision date:

27 September 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA/1023/2021 for staged development being, Torrens Title subdivision of the subject site into three Torrens Title allotments, construction of two dual occupancy developments, one on each of Lots 2 and 3, subsequent strata subdivision of Lots 2 and 3 with the two dual occupancy developments into two lots each at 50 Thane Street, Wentworthville, subject to Annexure A.

Catchwords:

APPEAL – development application – subdivision of land and construction of dual occupancies – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

Land and Environment Court Act 1979, s 34

Parramatta Local Environmental Plan 2011, cll 2.6, 4.1, 6.2, 6.4, 6.11

Parramatta Local Environmental Plan 2023, cl 1.8A

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

Category:

Principal judgment

Parties:

Canniesburn Pty Ltd ATF Syd Recon Trust (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
C Nuttall (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Dentons Australia (Respondent)

File Number(s):

2023/44037

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the Torrens title subdivision of a lot at 50 Thane Street, Wentworthville into three lots, the retention of the dwelling house on one of the lots and the construction of a dual occupancy on each of the other two lots and the subdivision of each of the dual occupancies. The development application was refused by the respondent on 12 August 2022. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 held on 20 July 2023. I presided over the conciliation conference.

3. Following 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 was filed on 19 September 2023, following the agreement of the Council to an amendment to the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). The amendments include changing the Torrens title subdivision of the dual occupancies to strata subdivision, updated landscaped areas, relocation of the retaining walls, and changes to the concrete surfaces, permeable paving, deep soil areas and waste bin location.

4. The development application, as amended, is a staged development with the three stages as follows:

• Stage 1 – the Torrens title subdivision of the existing lot into three lots, with retention of the existing dwelling on Lot 1 and the demolition of the existing pool and out buildings;

• Stage 2 – the construction of two dual occupancies, one on Lot 2 and one on Lot 3; and

• Stage 3 – the strata subdivision of each of the two dual occupancies such that Lot 2 is strata subdivided into two lots, and Lot 3 is subdivided into two lots.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Note that sets out the relevant jurisdictional matters that are required to be satisfied prior to the exercise of the power to grant development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The subdivision of land is permissible with development consent pursuant to cl 2.6 of the Parramatta Local Environmental Plan 2011 (PLEP 2011). The PLEP 2011 continues to apply to the development application notwithstanding the commencement of the Parramatta Local Environmental Plan 2023 (PLEP 2023), due to the savings provision in cl 1.8A of the PLEP 2023.

• The development works for the purpose of dual occupancy are permissible with consent in the R2 Low Density Residential Zone in which the site is located, pursuant to the PLEP 2011.

• The lots resulting from the Torrens title subdivision meet the minimum lot size development standard in cl 4.1 of the PLEP 2011, and there is no minimum lot size development standard that applies to the strata subdivision of the two dual occupancies.

• The proposed development complies with the height development standard in the PLEP 2011, and each of the three subdivided lots complies with the development standard for floor space ratio.

• The two subdivided lots on which dual occupancies will be constructed each comply with the minimum lot size for the development of a dual occupancy, which applies pursuant to cl 6.11 of the PLEP 2011.

• The development application includes minor earthworks. Based on the Statement of Environmental Effects dated 15 February 2023, I have considered the matters set out in cl 6.2(3) of the PLEP 2011.

• The site was previously partly mapped as Biodiversity such that cl 6.4 of the PLEP 2011 applied. However, the Department of Planning has reviewed this mapping and removed the site from that mapping. Accordingly, cl 6.4 no longer applies. However, to protect biodiversity on the adjoining site, the applicant relies on a revised arborist report dated 30 June 2023 so as to maximise tree retention. On the basis of that report, if cl 6.4 does apply, I am satisfied of the matters in cl 6.4(4).

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential dwelling houses, it is unlikely to be contaminated.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation 2000.

7. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. 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.

9. The Court notes that:

1. The City of Parramatta Council, as the relevant consent authority, has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA/1023/2021 in accordance with the documents below:

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Architectural Plans
Demolition and Subdivision Plan	A001	E	10 May 2023	IDA Design Group
Site Plan and Section (sheet 1)	A002	E	10 May 2023	IDA Design Group
Site Plan and Section (sheet 2)	A002	E	10 May 2023	IDA Design Group
Site Plan and Section (sheet 3)	A002	E	10 May 2023	IDA Design Group
Floor Plans	A003	E	10 May 2023	IDA Design Group
Driveway Section	A004	D	10 May 2023	IDA Design Group
Driveway Section	A004a	D	10 May 2023	IDA Design Group
Elevations and Sections	A005	D	10 May 2023	IDA Design Group
Deep Soil, Landscape Calculations and Cut and Fill Plan and BASIX Note	A006	D	10 May 2023	IDA Design Group
Site Plan	A007	C	10 May 2023	IDA Design Group
Sedimentation and Waste Management Plan	A008	C	10 May 2023	IDA Design Group
Driveway Cross Sections	A009	A	7 July 2023	IDA Design Group
Amended Stormwater Plans
Cover Sheet Plan	000	D	21 July 2023	Telford Civil
Stormwater Concept Plan	101	D	21 July 2023	Telford Civil
On-Site Detention Details and Calculations Sheets Lot 2A	102	D	21 July 2023	Telford Civil
On-Site Detention Details and Calculations Sheets Lot 2B	103	D	21 July 2023	Telford Civil
On-Site Detention Details and Calculations Sheets Lot 3A	104	D	21 July 2023	Telford Civil
On-Site Detention Details and Calculations Sheets Lot 3B	105	D	21 July 2023	Telford Civil
Miscellaneous Details Sheet	106	D	21 July 2023	Telford Civil
Longitudinal Section and Miscellaneous Details	107	D	21 July 2023	Telford Civil
DS21 Detail	108	D	21 July 2023	Telford Civil
Amended Civil Engineering Plans
General Notes, Locality Plan and Drawing Schedule	C000	A	21 July 2023	Telford Civil
Cut and Fill Plan	C100	A	21 July 2023	Telford Civil
Civil Works Layout Plan Sheet 1	C101	A	21 July 2023	Telford Civil
Civil Works Layout Plan Sheet 2	C102	A	21 July 2023	Telford Civil
Driveway Profile Longitudinal Sections Sheet 1	C201	A	21 July 2023	Telford Civil
Driveway Profile Longitudinal Sections Sheet 2	C202	A	21 July 2023	Telford Civil
Driveway Typical Sections	C301	A	21 July 2023	Telford Civil
Construction Notes and Details Sheet 1	C401	A	21 July 2023	Telford Civil
Construction Notes and Details Sheet 2	C402	A	21 July 2023	Telford Civil
Amended Landscape Plans
Landscape General Arrangements Plan	DA-L101	B	5 July 2023	Canvas Landscape Architects
Landscape Plan (Lot 2) Ground Floor	DA-L102	B	5 July 2023	Canvas Landscape Architects
Landscape Plan (Lot 3) Ground Floor	DA-L103	B	5 July 2023	Canvas Landscape Architects
Landscape Typical Details and Maintenance Schedule	DA-L104	B	5 July 2023	Canvas Landscape Architects
Reports
Traffic Response Letter prepared by Stanbury dated 9 May 2023
Updated Arborist Report prepared by Laurence Co dated 30 June 2023
Updated Waste Management Plan prepared by Canniesburn Pty Ltd dated 10 May 2023

10. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA/1023/2021 for staged development being, Torrens Title subdivision of the subject site into three Torrens Title allotments, construction of two dual occupancy developments, one on each of Lots 2 and 3, subsequent strata subdivision of Lots 2 and 3 with the two dual occupancy developments into two lots each at 50 Thane Street, Wentworthville, subject to Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A (342541, pdf)

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Decision last updated: 27 September 2023