Grebert v City of Parramatta Council

[2020] NSWLEC 1466

Land and Environment Court

New South Wales

Medium Neutral Citation:

Grebert v City of Parramatta Council [2020] NSWLEC 1466

Hearing dates:

Conciliation conference on 17 and 23 September 2020

Date of orders:

2 October 2020

Decision date:

02 October 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

See orders at [9] below

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to existing dwelling – heritage conservation area - conciliation – agreement between the 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 (Building Sustainability Index : BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land

Texts Cited:

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

Karen Lesley Grebert (First Applicant)
Shane Darren Fisher (Second Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
D Loether (Solicitor) (Applicants)
J Walker (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicants)
City of Parramatta Council (Respondent)

File Number(s):

2020/16489

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Respondent of Development Application No. 142/2019 for the demolition of existing garage and construction of one (1) and two (2) storey addition to the rear of an existing dwelling and provision of a detached garage/workshop at the property being Lot 71 in Deposited Plan 8424 known as 32 Lakeside Road Eastwood (the site).

2. On 17 and 23 September 2020 I presided over a conciliation conference between the parties pursuant to s 34 and s 34AA of the Land and Environment Court Act 1979 (LEC Act).

3. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to the Applicant to amend the development application, uphold the appeal and grant development consent to the development application subject to conditions.

4. An agreement pursuant to s34 of the LEC Act was filed by the parties on 23 September 2020 giving effect to the agreement in principle.

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

6. The parties’ agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties have stated and I agree based on the material provided to the Court that the relevant jurisdictional prerequisites that are satisfied so this function can be exercised are:

1. The DA is for the alterations and additions to an existing residential dwelling on the Site. Development for the purposes of “dwelling house” is permissible with consent in the R2 Low Density Residential Zone under the Parramatta Local Environmental Plan 2011 (PLEP 2011);

2. The Site is not within a flood prone zone under the Parramatta Development Control Plan 2011 (PDCP 2011);

3. The Site is within the Epping/Eastwood Heritage Conservation Area identified in Schedule 5 Part 2 of PLEP 2011 and the Heritage Map, and under Part 4.4.1.1 of the PDCP 2011. The dwelling is not a heritage item;

4. The provisions of cl 5.10 of PLEP 2011 have been considered;

5. There is no non-compliance with any development standard in any applicable environmental planning instrument;

6. The Council is satisfied that the DA generally complies with the development standards and controls under the PLEP 2011 and the PDCP 2011 subject to the Council’s conditions of consent;

7. Clause 7 of State Environment Planning Policy No.55 – Remediation of Land (SEPP 55) requires a consent authority to consider the contamination and remediation of land when determining a development application. There is already an existing one storey residential dwelling located upon the Site. The DA is for the alterations and additions to the existing residential dwelling located on the Site, which involve earthworks. The issue of contamination was considered as part of the assessment of the amended application;

8. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 the DA is accompanied by a BASIX Certificate No. A325329_04 prepared by House Plans by Design dated 18 September 2020;

9. The DA lodged with Council was placed on notification for 14 days between 20 March 2019 and 10 April 2019 in accordance with the Council’s notification policy. The Council received no submissions in response during the notification period.

7. 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.

8. The parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The Court orders:

1. The Applicant is granted leave to amend Development Application No. 142/2019 and to rely upon the following amended plans and documents:

Drawing number	Issue	Title	Author	Date
01	STG 8	Cover Sheet/BASIX Notes	House plans by design	22/09/2020
02	STG 8	Existing Site/Site Analysis Plan	House plans by design	22/09/2020
03	STG 8	Proposed Site/Landscape Calc	House plans by design	22/09/2020
04	STG 8	Existing Ground Floor Plan	House plans by design	22/09/2020
05	STG 8	Proposed Ground Floor Plan	House plans by design	22/09/2020
06	STG 8	Proposed First Floor Plan	House plans by design	22/09/2020
07	STG 8	Elevations	House plans by design	22/09/2020
08	STG 8	Elevations	House plans by design	22/09/2020
09	STG 8	Garage Elevations	House plans by design	22/09/2020
10	STG 8	Sections	House plans by design	22/09/2020
11	STG 8	Existing Shadow Diagrams 21st June	House plans by design	22/09/2020
12	STG 8	Proposed Shadow Diagrams 21st June	House plans by design	22/09/2020

Document(s)	Dated
Waste Management Plan	17 September 2020
External Finishes and Materials prepared by House plans by design	22 September 2020
BASIX Certificate No. A325329_04 prepared by House Plans by Design	18 September 2020

2. The appeal is upheld.

3. Development Application No. 142/2019 (as amended) for the demolition of existing garage and construction of one (1) and two (2) storey addition to the rear of an existing dwelling and provision of a detached garage/workshop at the property being Lot 71 in Deposited Plan 8424 known as 32 Lakeside Road Eastwood is approved subject to conditions set out in Annexure A.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (248358, pdf)

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Decision last updated: 02 October 2020