Golden Harvest (Aust) Pty Ltd v Parramatta City Council

[2005] NSWLEC 528

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Golden Harvest (Aust) Pty Ltd  v Parramatta City Council  [2005]  NSWLEC 528

PARTIES:
APPLICANT
Golden Harvest (Aust) Pty Ltd 

RESPONDENT
Parramatta City Council

CASE NUMBER:     10484             of       2004

CATCH WORDS:     Development Control Plan

LEGISLATION CITED:
Parramatta Development Control Plan 2001
Paramatta Local Environmental Plan 2001
State Environmental Planning Policy No. 65

CORAM:       Hussey C

DATES OF HEARING:       20/09/2005 -   Interim Finding  - 22/09/2005

EX TEMPORE DATE:        22/09/2005

LEGAL REPRESENTATIVES

APPLICANT
Mr G Bingham, solicitor
SOLICITORS
Deacons

RESPONDENT
Mr C Gough, solicitor
SOLICITORS
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

22 September 2005

10484 of 2004                 Golden Harvest (Aust) Pty Ltd  v

Parramatta City Council

JUDGMENT                  Interim Finding

1. Following the final submissions in this matter on 20 September 2005 and my review of the evidence before the Court, I am inclined to adjourn this matter for an appropriate period to enable a s 82A review to be lodged and considered by council and I will invite the parties submissions in that regard.  My reasons are:

   1.Firstly this is a significant development on a very prominent site which has attracted considerable public interest/objections.

   2.The amended plan before the Court represents a final plan arrived at after considerable number of amendments.  However, this plan still results in significant variations to the Parramatta DCP 2001, particularly in relation to its proposed height of 5-7 storeys, compared to the maximum height of 3 storeys in the DCP and there are other environmental impacts.

   3.A considerable number of objections have been lodged and they go to the excessive height and bulk of the proposal, together with other environmental impacts.

   4.This latest plan has apparently not been subject to any formal consideration by council. 

2. Based on the evidence before the Court, the last council assessment was on 5 July 2004, when council apparently adopted the independent planning consultant recommendation to refuse the application because of the following reasons:

   1.The height of the development is considered excessive and does not comply with the 3 storey height requirement contained in Parramatta DCP 2001 and does not satisfy the objectives of this control.

   2.The development is inconsistent with the objectives of the 3A Centre Business Zone under Parramatta Local Environmental Plan 2001 and the objectives for Mixed Use Development contained in DCP 2001.

   3.The design quality of the proposed development is considered to not satisfy the requirements of State Environmental Planning Policy No. 65 with regard to the design quality principles contained in Pt 2.  In particular, the proposal fails to adequately address design quality principles relating to context, scale, built form, amenity and aesthetics. 

   4.The applicant has submitted insufficient information to address potential impacts of traffic noise on internal amenity for future occupants of the proposed building.

   5.          Issues raised by objectors and the public interest.

3. During the hearing, I expressed some concern about the degree of change in the proposal, particularly the height exceedance of the DCP.  Whilst I accept the proposal accords with the urban design approach presented by the Court-appointed expert Mr Harrison and that approach does appear to have merit, there is no substantive evidence to confirm council’s consideration/acceptance of these significant policy changes to which objections have been made. 

1. On the basis that consistent decision making tends to lead to better planning outcomes, reference should be made to the previous Court decision in this matter in Appeal No. 10681 of 1999 wherein the unsatisfactory planning framework was discussed.  In that judgment the following statements are made:

   Par 64… as such the Court considers such a landmark building should demonstrate reasonable compliance with relevant development and strategic controls”

   Par 67 In the light of the public interest expressed in this matter, it seems appropriate that specific guidance be given about the ultimate form of the redevelopment of this site within the Carlingford Centre.  Such a decision would presumably be based on studies to assess the constraints, to allow an informed decision to be made on the appropriate scale of development that best serves the public and council’s planning objectives.

   Par 71… This conflicting evidence indicates to the Court that the current ad hoc approach to development on this site by the council is unsatisfactory.

   Par 72…   In the matter of Sumajen Pty Ltd v Sydney City Council which quoted that:

   “there must be a level of reasonable guidance in which stated aims and objectives are supported by a modicum of basic standards, such as floor space ratio (FSR), absolute height and open space area percentages.  Such standards can then provide a physical datum from which departures on a flexible basis can be made.  However, such departures can be made with some degree of confidence that at least the average case which was intended to be achieved by the planners can be grasped by not only those seeking to build, but those seeking to resolve disputes.”

2. Whilst the council may chose to ignore the matters presented in that judgment, the Court does not in the interest in consistent decision making.  In this current case then, the detailed planning controls, i.e. the LEP and the DCP do not appear to be in evidence to enable the Court to accurately consider whether to exercise its discretion in allowing such changes to the current DCP. 

1. Again considering the significance of this site and its development constraints/opportunities, including the desirability of effective co-ordination of development within this commercial centre to achieve orderly development and also taking into account the boundaries of other local government areas, it seems that s 82A review process is appropriate.

1. Therefore on the basis of the evidence tendered, which does not include all the planning controls to enable the Court to make an adequate s 79C assessment and for the aforementioned reasons then, I consider it appropriate at this stage to allow the parties to consider s 82A review, or an appropriate alternative process to enable council to formalise its position for this development. 

2. The matter is adjourned and it is referred to e-Court on 6 October 2005, for arrangements to complete the matter.

   `  ____________

   R Hussey

   Commissioner of the Court
   rjs/ljr