Guiterez v City of Parramatta Council

[2020] NSWLEC 1307

Land and Environment Court

New South Wales

Medium Neutral Citation:

Guiterez v City of Parramatta Council [2020] NSWLEC 1307

Hearing dates:

Conciliation conference on 13 July 2020

Date of orders:

17 July 2020

Decision date:

17 July 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) Leave is granted to the Applicants to amend the development application and rely on the plans and documents listed under ‘General Matters’, condition 1 of Annexure A.

(2) The Applicants are to pay the Respondent’s costs thrown away as a result of the amendment to the development application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $20,500 to be paid within 28 days from the date of these orders.

(3) The appeal is upheld.

(4) Development consent is granted to development application number D/689/2018, lodged on 28 September 2018, for demolition of existing structures and construction of a boarding house development comprising two buildings, 33 boarding rooms including managers residence at 5 Campbell Street, Northmead in accordance with the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – amenity – character – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Parramatta (former the Hills) Local Environmental Plan 2012

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Affordable Rental Housing) 2009

Texts Cited:

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

Racquel Campos Guiterez (First Applicant)
Vladimir Pasatovic (Second Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor) (Applicants)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicants)
HWL Ebsworth (Respondent)

File Number(s):

2019/75239

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 689/2018 by City of Parramatta Council (hereafter the Council) for the demolition of existing structures, tree removal and construction of a part two, part three storey boarding house containing 41 rooms with parking on Lot 13 Section 5 DP 6436, also known as 5 Campbell Street, Northmead (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 June 2020. I presided over the conciliation conference. There were no objectors at this conciliation, although the Court notes that at a previous conciliation of this appeal before this Commissioner, four resident objectors were heard, whom raised issues relating to privacy, noise, solar access, parking and character. Their issues have been considered by the parties in the making of this agreement.

4. Prior to this conciliation conference, and following expert discussion, the applicant sought to amend the DA’s supporting plans and provide relevant documentation to be relied upon in the granting of consent to the DA under appeal.

5. Based on these amended plans, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 689/2018 with conditions.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act after being satisfied, pursuant to s 4.15(1), to grant consent to DA 689/2018 with conditions, as described in Annexure A.

7. The parties identified the jurisdictional prerequisites of particular relevance to the Court in these proceedings, as consistency with the: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); and Parramatta (former the Hills) Local Environmental Plan 2012 (HLEP). In addition, The Hills Development Control Plan 2012 (HDCP) is of consideration to grant consent to the DA.

8. In compliance with the requirements of the SEPP ARH, the DA is supported by amended plans, a plan of management and conditions of consent, which the parties agree address the relevant requirements for consideration to grant consent. As amended, the proposed development provides sufficient parking for a 33 room boarding house including a manager, appropriate internal amenity and is consistent with the character of the local area. The parties agree that the requirements of the SEPP ARH are satisfied, and specifically cll 29(2), 30(1) and 30A, which relate to the contentions.

9. The proposed development is required to comply with the provisions of SEPP BASIX. An updated BASIX Certificate No. 947229M_03, dated 21 January 2020, which is relevant to the proposed development is identified in the conditions of consent, in compliance with the SEPP BASIX provisions.

10. The site is located within the R3 Medium Density Residential Zone, as described in the HLEP. The proposed development is permissible in the zone. The objectives of the zone are satisfied. The parties agree that the relevant provisions of the HLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The proposed development satisfies the numeric requirements and relevant objectives of the HLEP.

11. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls specified in the HDCP are achieved to the satisfaction of the parties. The parties agree that the amended design, as shown in the plans, addresses any potential amenity impacts raised in objection and as a contention.

12. The parties agree that the requirements of the HDCP are complied with, based on the amended plans, conditions of consent and the Plan of Management. The proposed development was publicly notified in accordance with the HDCP. During the initial notification period, 373 submissions were received by Council. Those submissions were considered by the parties, prior to reaching the agreement. The amended plans have been considered in the context of the site and with reference to the concerns raised in public submissions.

13. Based on the amended plans and supporting documents to the DA the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as being resolved to the satisfaction of the parties.

14. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that DA 689/2018 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

15. 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.

16. The Court orders that:

1. Leave is granted to the Applicants to amend the development application and rely on the plans and documents listed under ‘General Matters’, condition 1 of Annexure A.

2. The Applicants are to pay the Respondent’s costs thrown away as a result of the amendment to the development application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $20,500 to be paid within 28 days from the date of these orders.

3. The appeal is upheld.

4. Development consent is granted to development application number D/689/2018, lodged on 28 September 2018, for demolition of existing structures and construction of a boarding house development comprising two buildings, 33 boarding rooms including managers residence at 5 Campbell Street, Northmead in accordance with the conditions in Annexure A.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (301241, pdf)

Plans (9444959, pdf)

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Decision last updated: 17 July 2020