HB & B Property Pty Ltd v Parramatta City Council

[2022] NSWLEC 1478

Land and Environment Court

New South Wales

Medium Neutral Citation:

HB & B Property Pty Ltd v Parramatta City Council [2022] NSWLEC 1478

Hearing dates:

Conciliation conference 8 July 2022

Date of orders:

12 September 2022

Decision date:

12 September 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Appeal is upheld

(2) The Applicant is to pay the Respondents costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $4,500.00 within 14 days of the date of these orders.

(3) Development Application No. DA/1057/2021 for the demolition, tree removal and construction of a part two (2) and part (3) storey residential care facility, comprising 110 beds with one (1) level of basement parking and associated civil engineering and earth works at 43-47 Murray Farm Road and 13 & 19 Watton Road, Carlingford is approved subject to the conditions in Annexure A to this agreement.

Catchwords:

DEVELOPMENT APPLICATION: New Residential Care facility – conciliation conference - amended plans – agreement reached between the parties - orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.6, 8.7, 4.14, 4.15, 4.16

Environmental Planning and Assessment Regulation 2000 cl 55

Land and Environment Court Act 1979 s 34

Parramatta (former The Hills) Local Environmental Plan 2012 cll 4.1, 4.3, 5.21, 7.2

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 cll 24, 25, 26, 28, 30, 40

State Environmental Planning Policy (Housing) 2021 Sch 7

State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

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

State Environmental Planning Policy No 55—Remediation of Land

Category:

Principal judgment

Parties:

HB & B Property Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
A Cowper (Applicant)
C Nutall (Solicitor) (Respondent)

Solicitors:
Mills Oakley Solicitors (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2022/107928

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their development application (DA/1057/2021) by the City of Parramatta Council. The Applicant filed a Class 1 Application, appealing the refusal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). As amended the development application seeks consent for demolition, tree removal and construction of a part two (2) and part three (3) storey residential care facility comprising of 110 beds, with one (1) level of basement parking and associated civil engineering and earth works. The development is proposed at 43-47 Murray Farm Road and 13 & 19 Watton Road, Carlingford (Lot 1 DP 210512, Lot 16 DP 238510 and Lot 6 DP 259726).

2. The appeal was subject to conciliation on 8 July 2022 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided at the conciliation conference which included the hearing of oral evidence from affected residents. As a result of the discussions at the conciliation amended plans and documentation were prepared and agreement was reached between the parties. That agreed decision is that the appeal is upheld, the development application is approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The development application was made with the consent of the owner of the subject site.

2. The development application was notified to adjoining owners and advertised in the local paper for the period of 1 December 2021 and 11 January 2022 and renotified between 11 January and 9 February 2022. Twenty submissions were received by the Respondent. Further, at the commencement of the matter on site a number of residents addressed the Court outlining their concerns. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either the amendment to the application or through the imposition of conditions of consent.

3. The development application was referred to WaterNSW in accordance with s 4.14 of the EPA Act. On 22 May 2022, WaterNSW provided General Terms of Approval which have been incorporated into the conditions of consent in Annexure A.

4. State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) applies. I make the following findings in relation to the provisions of SEPP HSPD:

1. The development application was lodged prior to commencement of the State Environmental Planning Policy (Housing) 2021 (SEPP (Housing)) on 26 November 2021. Schedule 7 includes a savings provision, the effect of which is that the provisions of the SEPP HSPD continue to apply to the development application.

2. A site compatibility certificate is not required pursuant to cl 24(1A) of SEPP HSPD as the proposed development is permissible with consent in the R2 Low density Residential zone pursuant to Paramatta (former The Hills) Local Environmental Plan 2012 (LEP 2012).

3. Clause 26 of SEPP HSPD requires that the consent authority be satisfied that the residents will have access to shops, banks retail/commercial facilities, community services and a medical practitioner. On the basis that the site is located 100m from a major arterial road (Oaks Road) where bus stops are located (150m from the site) which provide access to train stations and shopping I accept the agreed position of the parties that cl 26 of SEPP HSPD is satisfied.

4. As required by cl 28 of SEPP HSPD I am satisfied that the site is able to be connected and serviced by water and sewer services as an extension of the existing residential services.

5. As no site compatibility certificate is required in determining the development application, I am required to take into consideration the matters at cl 25(5)(b)(i), (iii) and (v) of SEPP HSPD. In relation to (i), I have given consideration to the natural environment, and the existing and approved uses of the land in the vicinity of the site. I accept the conclusion of the Statement of Environmental Effects accompanying the development application that the proposed development suitably integrates with the surrounding site context and the existing development. Further, I am satisfied that sufficient existing vegetation is retained and will be supplemented by the development. In relation to (iii), I am satisfied that the site is able to be connected and serviced by water and sewer services as an extension of the existing residential services. Finally in relation to (v), I am satisfied that the bulk, scale, built form and character of the development have been thoughtfully developed as outlined in the Urban Design Report. I find that the proposed development as amended is not likely to have a detrimental impact on the existing, approved or future uses of the adjoining land.

6. As required by cl 30 of SEPP HSPD, I am satisfied that a site analysis has been completed and taken into account. Such a process drawing is included in the architectural plans for which consent is sought at DA-20 and DA-21. Further, the process of site analysis is referred to in the Urban Design Report which accompanies the development application.

7. Clause 40 of SEPP HSPD provides development standards which must be complied with to enable a consent authority to have power to approve the development. The site has a total area exceeding 1000m² and a frontage exceeding 20m at the building line, meeting the requirements of sub cl (2) and (3) respectively. The proposed building has a maximum height of less than 8m, and the development adjacent to the boundaries of the site does not exceed two storeys in height, meeting the requirements of sub cll (4)(a) and (4)(b) respectively. Finally, the height of the proposed building in the rear 25% of the site does not exceed one storey: sub cl 4(c).

5. At the time of lodging the development application, State Environmental Planning Policy (Vegetation in Non- Rural Areas) 2017 applied to the site. The proposed development seeks consent to remove 23 trees of moderate to low retention value. The development application is supported by an arborist report and landscape plans which includes replanting. Consent is sought for the removal of the trees and replanting in accordance with the landscape plans and report. I am satisfied that in the context of the proposed development the tree removal is acceptable.

6. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) came into force on 1 March 2022. SEPP RH transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) to the new instrument. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of SEPP RH. An Environmental Site Assessment accompanies the development application which concludes that the site is suitable for the proposed development. By reference to this document, I have considered whether the land is contaminated in accordance with s 4.6 SEPP RH and I accept that the site will be suitable for the proposed development.

7. Pursuant to LEP 2012, the site is zoned R2: Low Density Residential. The proposed development, being ‘Residential Accommodation’ is prohibited development in the zone. As such the development relies on SEPP HSPD for permissibility. In determining the development application, I have given consideration to the zone objectives.

8. The proposed development is compliant with the minimum lot size control (cl 4.1) and the maximum building height (cl 4.3) development standards as per LEP 2012.

9. The site is subject to cl 5.21: Flood Planning of LEP 2012 as a portion of the site (lot 19) fronting Watton is within the flood planning area. The development application is supported by a Flood Risk Assessment and stormwater engineering plans. The flood affection portion of the site is maintained as open space in the proposed development. The Flood Risk Assessment concludes in part that the proposed development is appropriate with regards to the local flood risk conditions and satisfies the flood planning requirements. On the basis of these documents, I accept the agreed submission of the parties that the clause is satisfied. I find that I can be satisfied of the matters listed at cl 5.21(2) of LEP 2012. In reaching this satisfaction I have given consideration to the matters at cl 5.21(3) of LEP 2012.

10. Clause 7.2: Earthworks of LEP 2012 applies to the proposed development as it incorporates cut and fill to accommodate the final levels proposed. In granting consent to the development, I have considered the matters listed at cl 7.2(3) of LEP 2012 and the architectural and stormwater engineering plans. I am satisfied that none of the listed matters warrant the refusal of the development.

5. 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.

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

7. In making the orders, the Court notes that:

1. That the Applicant has amended Development Application No. DA/1057/2021 with the agreement of the Council of the City of Parramatta Council (pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000) as the relevant consent authority to incorporate the following amended plans and documents:

1. Amended Architectural Plans (up to Rev K), prepared by Thomason Adsett dated 28 July 2022;

2. Amended Landscape Plans (up to Rev I), prepared by Henry & Taylor Brammer dated 27 July 2022;

3. Amended Civil Plans (up to Rev 15), prepared by Henry & Hymas dated 28 July 2022;

4. Evacuation Plans (Rev A), prepared by Thomason Adsett dated 19 July 2022;

5. Flood Risk Assessment, prepared Umwelt Environmental & Social Consultants dated 21 July 2022;

6. Amended Accessibility Report, prepared by Morris Goding dated 21 July 2022;

7. Arboricultural Report, prepared by Tree Wise Men Pty Ltd dated 29 July 2022;

8. Review of SEPP HSPD Seniors requirements prepared by Morris Goding dated 18 July 2022; and

9. Traffic Plan of Management, prepared by HB & B dated 22 July 2022.

2. that the Amended Development Application has been lodged on the NSW Planning Portal on 31 August 2022.

3. that the Applicant has subsequently filed the Amended Development Application with the Court on 31 August 2022.

8. The Court orders that:

1. The Appeal is upheld

2. Development Application No. DA/1057/2021 for the demolition, tree removal and construction of a part two (2) and part (3) storey residential care facility, comprising 110 beds with one (1) level of basement parking and associated civil engineering and earth works at 43-47 Murray Farm Road and 13 & 19 Watton Road, Carlingford is approved subject to the conditions in Annexure A to this agreement.

3. The Applicant is to pay the Respondents costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $4,500.00 within 14 days of the date of these order

.…………………………

D M Dickson

Commissioner of the Court

Annexure A (596981, pdf)

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Decision last updated: 12 September 2022