Epping Surgery Centre Property Pty Ltd v City of Parramatta Council

[2019] NSWLEC 1406

Land and Environment Court

New South Wales

Medium Neutral Citation:	Epping Surgery Centre Property Pty Ltd v City of Parramatta Council [2019] NSWLEC 1406
Hearing dates:	28 August 2019 conciliation conference
Date of orders:	03 September 2019
Decision date:	03 September 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	See orders at [10]
Catchwords:	DEVELOPMENT APPEAL – conciliation conference – agreement between parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Parramatta Local Environmental Plan 2011 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No.55
Category:	Principal judgment
Parties:	Epping Surgery Centre Property Pty Ltd (Applicant) City of Parramatta Council (Respondent)
Representation:	Solicitors: Pikes and Verekers (Applicant) Matthews Folbigg Pty Ltd (Respondent)
File Number(s):	2018/390614
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the determination by the City of Parramatta Council (the Respondent) of Development Application No. DA/769/2018 (the DA) which imposes a deferred commencement condition related to the demolition of two existing dwellings and construction of class 9a Day Surgery.

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 28 August 2019. I presided over the conciliation conference.

3. Prior to 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 involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 28 August 2019.

4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development by grant of the Certificate subject to agreed conditions annexed to the s 34 agreement.

5. 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. There are jurisdictional prerequisites contained in the provisions of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), and the Parramatta Local Environmental Plan 2011 (PLEP).

6. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [11]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is located within the R2 Low Density Residential zone under the PLEP in which Health consulting rooms and hospitals are permitted with consent.

2. The proposed development is identified as a ‘health services facility’ for the purposes of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure), which is permitted by cl 57(1) of the SEPP (Infrastructure), and I am satisfied is compatible with the character of the local area.

3. As State Environmental Planning Policy No.55 (SEPP 55) applies to the site, I have considered the Phase 1 preliminary environmental site assessment report prepared by Envirotech, dated 17 October 2018 and I am satisfied that the site is considered to be suitable for the proposed land use in accordance with sub cll 7(1) and (2) of SEPP 55 and does not require any further testing. Furthermore, I am satisfied that the site is within land classified as Class 5, pursuant to cl 6.1 Acid Sulfate Soils, and not within 500m of land that is Class 1-4.

4. I am satisfied that the proposed development complies with the minimum lot size, height of buildings, floor space ratio as required by the PLEP.

7. 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.

8. 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.

9. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

10. The Court orders that:

1. The Applicant is granted leave to rely upon the following:

1. Amended stormwater Management Plans prepared by Jones Nicholson Engineers:

1. C200-7 rev:7 dated: 16/08/19

2. C053-3 rev:3 dated: 16/08/19

3. C051-6 rev:6 dated: 16/08/19

4. C050-5 rev:5 dated 08/08/19

5. C001-6 rev:6 dated 08/08/19

6. C052-6 rev:6 dated 08/08/19

7. ESM1-5 rev:5 dated 08/08/19

8. ESM2-5 rev:5 dated 08/08/19

2. Arboricultural Impact Assessment & Tree Protection Specification by Lauren and Co (final version) dated 9/05/2019

2. The Appeal is upheld

3. Development Application DA 769/2018 for the demolition of existing structures and construction of a single level health facility above semi-basement parking and services at 34-38 Boronia Avenue, Epping is approved subject to the conditions annexed hereto and marked ‘A’.

……………………

T Horton

Commissioner of the Court

Annexure A (414 KB)

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Decision last updated: 04 September 2019