Fourth Avenue Developments Pty Ltd v City of Parramatta Council

[2020] NSWLEC 1494

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fourth Avenue Developments Pty Ltd v City of Parramatta Council [2020] NSWLEC 1494

Hearing dates:

Conciliation conference on 28 August 2020

Date of orders:

16 October 2020

Decision date:

16 October 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Orders of the Court are:
(1) The applicant is granted leave to amend the application to rely upon the amended plans and documents referred to in condition 1 of the consolidated conditions of consent at Annexure A.
(2) The appeal is upheld.
(3) Development Consent No. 203/2019 for the demolition of buildings, the removal of trees and subdivision of two lots into four lots, at 4 Farnell Avenue, Carlingford, granted by the respondent on 24 March 2020, is modified in accordance with the consolidated conditions of consent at Annexure A.

Catchwords:

MODIFICATION APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Biodiversity Conservation Act 2016

Biodiversity Conservation Regulation 2017

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Parramatta (former The Hills) Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Fourth Avenue Developments Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
C Gough (Solicitor) (Respondent)

Solicitors:
Michael Flaherty Solicitor (Applicant)
Storey & Gough Lawyers (Respondent)

File Number(s):

2020/182254

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a modification application to modify conditions 16, 30 and 37 of Development Consent No. 203/2019 (the proposal) by Parramatta Council (the Council).

2. Development Consent No. 203/2019, granted by the Council on 24 March 2020, is for the demolition of buildings, the removal of trees and the subdivision of two lots into four lots, at 4 Farnell Avenue, Carlingford (the site).

3. The proposal is as follows:

• To modify condition 16, which requires measures to be implemented for the viable protection of trees numbered 1 to 7 and 10 to 50, to only reference trees numbered 10, 11, 14, 15, 17, 18, 27, 28, 33, 41 and 42;

• To modify condition 30, which approves the removal of trees numbered 8 and 9 to include trees numbered 4, 6, 7, 8, 9, 13, 20, 21, 22, 23, 24, 25, 26, 31, 32, 35, 36, 37 and 39 for removal;

• To modify condition 37, which requires a Restriction on the Use of Land and Positive Covenant placed on all lots to prevent any future development of the lots unless such development includes the provision of on-site stormwater detention facilities, be to lots 2, 3 and 4 only.

4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 28 August 2020. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

6. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. I am satisfied, pursuant to s 4.55(2) of the EPA Act, that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, because the modification is confined to the removal of certain trees to provide an indicative building footprint on each subdivided allotment for which consent has already been granted. The original grant of consent for the residential subdivision of the site must have contemplated an indicative building footprint on the vacant lots.

9. I accept the written submissions of the parties that the jurisdictional preconditions under the Biodiversity Conservation Act 2016 (BC Act) and the Biodiversity Conservation Regulation 2017 (Regulation) are met by the modification application. Those submissions are:

“1. The modified development exceeds the biodiversity offsets scheme threshold because it involves the clearing of native vegetation on land included on the Biodiversity Values Map (cl 7.1 Regulation; s 7.4 BC Act).

2. The modified development is likely to significantly affect threatened species as it exceeds the biodiversity offsets scheme threshold (cl 7.2(1)(b) BC Act).

3. The original application for development consent was accompanied by a biodiversity development assessment report, as required by s 7.7 of the BC Act.

4. Section 7.12 prevents a consent authority from granting consent in certain circumstances. The requirements of the section were satisfied when the consent was granted: the application for development consent was accompanied by a biodiversity development assessment report, and condition 15 of the development consent required the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of at least the number and class specified in the report. The proposed modified consent retains that condition.

The Biodiversity Conservation Act Part 7 Div 4 (ss 7.13 - 7.19)

5. Section 7.17 of the BC Act provides that the provisions of Div 4 of Pt 7 of the Act apply to modifications of a development consent, subject to certain qualifications.

6. Those provisions are satisfied.

7. Condition 15 of the consent both as originally granted and as modified requires the applicant to retire biodiversity credits to offset the residual impact on any biodiversity values as required by s 7.13(3) of the BC Act.

8. Section 7.16 provides that a consent authority must refuse to grant consent in certain circumstances. The consent as originally granted and as proposed to be modified does not fall within those circumstances. The development as modified is unlikely to have serious and irreversible impacts on biodiversity values.

9. Section 7.17 provides that a Biodiversity Development Assessment Report is required to be submitted with a modification application unless the consent authority is satisfied the modification will not increase the impact on biodiversity values: s 7.17(2)(b)(c). The modification will not increase the impact on biodiversity values because:

a) under cl 7.1 of the Regulation, if proposed development is or involves the subdivision of land, the subdivision is taken to involve the clearing of native vegetation that, in the opinion of the relevant consent authority or other planning approval body, is required or likely to be required for the purposes for which the land is to be subdivided.

b) The development as originally approved was taken to involve the clearing of the vegetation that the development as modified proposes.”

10. The site has an area of 3,508sqm and is zoned R2 Low Density Residential pursuant to Parramatta (former The Hills) Local Environmental Plan 2012 (LEP 2012). The objectives of the R2 zone, to which regard must be had, 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.

11. I am satisfied that the modification of the development consent is consistent with the objectives of the R2 zone.

Orders

12. The orders of the Court are:

1. The applicant is granted leave to amend the application to rely upon the amended plans and documents referred to in condition 1 of the consolidated conditions of consent at Annexure A.

2. The appeal is upheld.

3. Development Consent No. 203/2019 for the demolition of buildings, the removal of trees and subdivision of two lots into four lots, at 4 Farnell Avenue, Carlingford, granted by the respondent on 24 March 2020, is modified in accordance with the consolidated conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (228859, pdf)

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Decision last updated: 16 October 2020