Chowsons Investment Pty Ltd v City of Parramatta Council

[2019] NSWLEC 1228

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chowsons Investment Pty Ltd v City of Parramatta Council [2019] NSWLEC 1228
Hearing dates:	Conciliation conference on 27 March 2019 and 26 April 2019.
Date of orders:	24 May 2019
Decision date:	24 May 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1) Leave is granted to the Applicant to rely upon the amended plans and documents listed in condition 1 of Annexure “A” hereto. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum of $10,000. (3) Development Application No DA111/2018 for the demolition of the existing structures and construction of a (3) storey residential flat building pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009, with associated basement parking on land at 37 South Street, Rydalmere, is approved subject to conditions annexed hereto and marked “A”.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Parramatta Local Environmental Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy No 55—Remediation of Land
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	Chowsons Investment Pty Ltd (Applicant) City of Parramatta Council (Respondent)
Representation:	Solicitors: P Saab, Macquarie Lawyers (Applicant) C Morton, Sparke Helmore Lawyers (Respondent)
File Number(s):	2018/268315
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Parramatta Local Planning Panel's deemed refusal of development application DA/111/2018. Under DA/111/2018, the applicant seeks consent for the demolition of existing structures and construction of a three storey residential flat building, pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009, with basement car parking and other associated works.

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 27 March 2019. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified certain jurisdictional prerequisites of relevance in these proceedings and explained how they have been or could be satisfied.

6. I note the advice of the parties that in regard to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), and in particular cl 30(2) therein:

• The Applicant’s architect has prepared a design verification statement in satisfaction of cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000.

• The design verification statement is referred to in condition 1 of the conditions annexed to the Agreement at “A”.

• For the purposes of cll 143A and 154A of the Environmental Planning and Assessment Regulation, compliance with SEPP 65 is required.

7. It is demonstrated that in regard to SEPP 65, adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria.

8. I note the advice of the parties in regard to cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). I note that Council has undertaken checks on whether the land is contaminated, and concluded that, based on these initial checks, no further site investigations were appropriate or necessary in this instance. Condition 4 requires Council to be notified should any demolition or construction work present new information in regard to potential contamination. In regard to cl 7 of SEPP 55, I have given consideration to whether the site is contaminated, and note Council’s advice that this is unlikely. I believe adequate arrangements are in place should further information come forward in regard to this matter.

9. I note the advice that the proposal is permissible development and does not breach any development standards contained in Parramatta Local Environmental Plan 2011.

10. Based on the above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

11. 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 to dispose of the proceedings in accordance with the parties’ decision. In this instance the Court has not considered the overall merits of the proposal, nor need it do so.

12. The Court orders:

1. Leave is granted to the Applicant to rely upon the amended plans and documents listed in condition 1 of Annexure “A” hereto.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum of $10,000.

3. Development Application No DA111/2018 for the demolition of the existing structures and construction of a (3) storey residential flat building pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009, with associated basement parking on land at 37 South Street, Rydalmere, is approved subject to conditions annexed hereto and marked “A”.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A

Plans

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Decision last updated: 24 May 2019