Golden Dragon 888 Pty Ltd v Parramatta City Council

[2022] NSWLEC 1313

Land and Environment Court

New South Wales

Medium Neutral Citation:

Golden Dragon 888 Pty Ltd v Parramatta City Council [2022] NSWLEC 1313

Hearing dates:

Conciliation conference on 27 May 2022

Date of orders:

17 June 2022

Decision date:

17 June 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – see [14].

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 37, 77

Interpretation Act 1987, s 5

Land and Environment Court Act 1979, s 34

Parramatta Local Environmental Plan 2011, cll 2.3, 2.7, 4.3, 4.4, 6.1, 6.2

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Educational Establishments and Childcare facilities) 2017

State Environmental Planning Policy No 55 - Remediation of Land, cl 7

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

State Environmental Planning Policy (Transport and Infrastructure) cll 3.23, 3.26

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February, 2022)

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

Golden Dragon 888 Pty Ltd (Applicant)
Parramatta City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
C Nuttall (Solicitor)(Respondent)

Solicitors:
Builtex Pty Ltd (Applicant)
Parramatta City Council (Respondent)

File Number(s):

2021/339177

Publication restriction:

No

Judgment

1. COMMISSIONER: Golden Dragon 888 Pty Ltd (the Applicant) has appealed the refusal by the Parramatta Local Planning Panel, on behalf of Parramatta City Council (the Respondent), on 18 January 2022 of its development application (DA/943/2021) seeking consent for the demolition of the existing dwellings, tree removal and construction of a 144 place child care centre over one level of basement carparking (the Proposed Development) at 1-5 Saunders Street, North Parramatta (also identified as Lot 7 in DP 1036920) (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), the Proposed Development was notified between 22 October and 12 November 2021, and 32 submissions were received in response to that notification.

4. On 27 May 2022, the Parties participated in a s 34 conciliation conference and reached an in-principle agreement regarding the granting of consent to the DA, subject to conditions.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site inspection was undertaken prior to the conciliation conference as one objector provided a submission during the site view.

6. At the conciliation conference, undertaken via Microsoft Teams, 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 consent to the Applicant’s development application, subject to conditions.

7. Under s 34(3) of the Land and Environment Court Act 1979 (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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to Applicant’s Development Application, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) (incorporating the provisions of the former and now repealed State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017 (SEPP Childcare)):

1. SEPP T&I came into force on 1 March 2022 and the provisions of SEPP Childcare SEPP were transferred to Chapter 3 of SEPP T&I;’

2. however, the provisions of the SEPP Childcare continue to have effect in relation to the Proposed Development by dint of s 5(6) of the Interpretation Act 1987 (Interpretation Act), noting that the relevant transferred provisions were not amended in form or context.

3. Clause 3.23 of the SEPP T&I requires the consent authority to take into consideration any applicable provisions of the Child Care Planning Guideline: and

1. an assessment of the Proposed Development in relation to the Guidelines has been undertaken within the Applicant’s statement of environmental effects;

2. the Parties agree, and I am satisfied, that the Proposed Development meets the non-discretionary standards in clause 3.26(2) of SEPP T&I, noting that the Proposed Development provides at least 3.25m² of unencumbered indoor space per child and at least 7m² of unencumbered outdoor space per child;

2. in relation to the provisions of Parramatta Local Environmental Plan 2011 (PLEP):

1. the Subject Site is zoned R4 High Density Residential under the provisions of cl 2.3 of PLEP, and centre based child care centres are permissible in the R4 zone;

2. clause 2.3(2) requires that requires that regard be had to the zone objectives, and the Parties agree, and I am satisfied, that consistent with the zone objectives which are:

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

To provide a variety of housing types within a high density residential environment.

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

To provide opportunity for high density residential development close to major transport nodes, services and employment opportunities.

To provide opportunities for people to carry out a reasonable range of activities from their homes if such activities will not adversely affect the amenity of the neighbourhood.

3. clause 2.7 requires development consent for demolition and the Proposed Development includes an application for demolition;

4. clause 4.3 of PLEP sets a height of buildings development standard of a maximum 11m as shown on the height of buildings map, and the Proposed Development has a maximum height of 10.56m, in satisfaction of that standard;

5. clause 4.4 of PLEP sets a floor space ratio (FSR) development standard of a maximum of 0.8:1 for development on the Subject Site and the Proposed Development has an FSR of 0.69:1 in compliance with that standard;

6. clause 6.1 of PLEP applies to the extent that the Subject Site is classified as ‘class 5’ land on the Acid Sulfate Soils Map in PLEP, but the clause has no application to the Proposed Development as works are not proposed within 500m of any adjacent class 1, 2, 3 or 4 land that is below 5m Australian Height Datum and by which the water table is likely to be lowered below 1m Australian Height Datum on adjacent Class 1, 2, 3 or 4 land;

7. clause 6.2 of PLEP requires the consent authority to be satisfied of the matters identified in cl 6.2(3) before granting consent, and the amended application included an amended stormwater plan in relation to which the Parties confirm, and I am satisfied, that the Applicant’s amended plans, together with the Parties’ agreed conditions of consent, meet the requirements of clause 6.2(3) and will ensure that:

1. earthworks will not have a detrimental effect on existing drainage patterns and soil stability in the locality; and

2. excavated material will be removed from the Subject Site and disposed of at an authorised facility;

3. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), (incorporating the provisions of the former and now repealed State Environmental Planning Policy No. 55 – Remediation of Land) (SEPP 55):

1. SEPP R&H came into force on 1 March 2022, and whilst the SEPP transfers the provisions of the former SEPP 55 to the new SEPP, the provisions of SEPP 55 continue to apply to the Proposed Development by dint of s 5(6) of the Interpretation Act, and:

1. the relevant transferred provision (cl 7 of SEPP 55) was not amended in form or context;

2. clause 7(1) of SEPP 55 and cl 4.6(1) of the SEPP R&H provide that a consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

3. clause 7(2) of SEPP 55 and cl 4.6(2) of the SEPP R&H provide that:

Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

4. the Applicant has provided a preliminary investigation report which considered the potential for contamination of soil on the Subject Site to be low and that attested to the fact that the Subject Site is suitable for its intended use as a childcare centre, subject to the recommendations in the report being implemented; and

5. the Parties agreed conditions of consent include conditions reflecting the recommendations of that the Applicant’s preliminary site investigation;

6. the Parties agree, and I am satisfied, that the Subject Site is suitable in its current state for its intended use as a centre based childcare centre as proposed by the Applicant in satisfaction of the provisions of cl 4.6 of SEPP (R&H) (and those of cl 7(1) of the former SEPP 55);

4. in relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C):

1. SEPP B&C (incorporating the provisions of the former and now repealed State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (SEPP Vegetation) came into force on 1 March 2022, and whilst the SEPP B&C transfers the provisions of the former SEPP Vegetation to the new SEPP B&C, the provisions of the former SEPP continue to have effect in relation to the Proposed Development by dint of s 5(6) of the Interpretation Act, and:

1. the Proposed Development includes proposals for tree removal on the Subject Site which is consistent with the provisions of SEPP B&C, and

2. the Respondent agrees, and I am satisfied, that the Applicant’s amended plan for the basement setback to the rear of the Subject Site (together with Parties’ agreed conditions of consent) has mitigated the potential impact of the Proposed Development on neighbouring trees and is acceptable in that form;

5. in relation to the provisions of Parramatta Development Control Plan 2011 (PDCP), which applies to development on the Subject Site, the Parties agree, and I am satisfied, that:

1. the applicable controls in PDCP have been considered in the assessment of the Proposed Development;

2. a summary of the Proposed Development’s compliance with relevant controls is provided within the Applicant’s Statement of Environmental Effects; and

3. the only material change arising from the Applicant’s amendments to its Proposed Development are that the rear setback was increased to aid retain neighbouring vegetation, and in relation to that the Proposed Development complies with the setback controls in PDCP; and

4. the Proposed Development otherwise complies with applicable controls in PDCP, and to the extent that they may not, the Proposed Development represents a feasible alternative solution that achieves the objectives of those controls in satisfaction of the provisions of s 4.15(3A) of the EP&A Act.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 8.7(1) of the EP&A Act have been so satisfied.

10. Further, 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 to dispose of the proceedings in accordance with the Parties’ decision.

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

13. The Court notes that the Parties have confirmed that the Applicant has:

1. amended the application with the consent of the Parramatta City Council as consent authority for the purposes of cl 37 of the EP&A Regulation;

2. uploaded the amended application onto the NSW planning portal on 21 April 2022;

3. filed the amended plans and all supporting documents that form the amended application with the Court on 31 May 2022.

Orders

14. The orders of the Court are:

1. pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away in respect of the amended plans, in the sum of $3,945.00, within 14 days of the date of this order;

2. the appeal is upheld;

3. consent is granted to amended Development Application No. DA/934/2021 seeking consent for the demolition of existing dwellings, tree removal and construction of a 144 place child care centre over 1 level of basement carparking subject to the consolidated conditions set out in Annexure 'A' to this agreement.

………………………..

M Chilcott

Commissioner of the Court

Annexure A.pdf

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Decision last updated: 17 June 2022