Hokayem v City of Parramatta Council

[2021] NSWLEC 1007

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hokayem v City of Parramatta Council [2021] NSWLEC 1007

Hearing dates:

Conciliation conference on 3 December 2020

Date of orders:

21 January 2021

Decision date:

21 January 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

Proceedings 2018/387699

See order at [15] below

Proceedings 2018/387918

See orders at [16] below

Proceedings 2019/242510

See orders at [17] below

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – development carried out not in accordance with development consent – development control order – appeal against order – building information certificate application – appeal against refusal to issue building information certificate

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Parramatta (former The Hills) Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Dyala Hokayem (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
J McKelvey (Applicant)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Madison Marcus (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2018/387699; 2018/387918; 2019/242510

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These are three appeals; an appeal against the Parramatta Local Planning Panel’s refusal of Modification Application No. 591/2017/A (2018/387699), an appeal against a Development Control Order issued by the City of Parramatta Council (the Council) (2018/387918) and an appeal against the Council’s refusal to issue a building information certificate (2019/242510). The appeals relate to land known as 13 Phillip Street, Oatlands (the site). The site contains a three-storey dwelling with a roof top terrace, an inground swimming pool, a retaining wall and a cabana.

2. The Modification Application was lodged on 26 March 2018 pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal against the Parramatta Local Planning Panel’s refusal of the Modification Application on 28 June 2018 is made pursuant to s 8.9 of the EPA Act. The Modification Application seeks consent to modify consent DA/55/2015/LD (the development consent) granted by the respondent’s predecessor, The Hills Shire Council, on 6 January 2015, for the demolition of the existing dwelling and construction of a three-storey dwelling with a rooftop terrace, inground swimming pool and retaining wall, on the site. The development carried out on the site is not in accordance with the development consent.

3. The applicant was granted leave by the Court on 18 February 2020 to amend the Modification Application to rely on amended plans and documents.

4. The development control order (the order) was issued by the Council on 19 November 2018 pursuant to Div 9.3 and Sch 5 of the EPA Act and the appeal against the order is made pursuant to s 8.18(1) of the EPA Act. In summary, the order requires the applicant to demolish the unauthorised building works carried out contrary to the development consent and to do such works as necessary to comply with the development consent and relevant standards.

5. The appeal against the Council’s refusal to issue a building information certificate (BIC) under Div 6.7 of the EPA Act is made pursuant to s 8.25(1) of the EPA Act. The BIC Application No. 161/2018 was lodged on 18 December 2018 and refused by the Council on 13 March 2019. The applicant was granted leave by the Court on 18 February 2020 to amend the application to rely on amended plans and documents.

6. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 December 2020. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the 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. The parties’ decision involves the Court exercising the consent authority’s function under s 4.55(1A) of the EPA Act to modify the development consent; the Court’s power under s 8.18(4)(b) of the EPA Act to modify the development control order; and the Court’s power under s 8.25(3) of the EPA Act to make any other order that it considers appropriate in relation to the building information certificate application. There are jurisdictional prerequisites that must be satisfied before the function under s 4.55(1A) of the EPA Act can be exercised.

Statutory context

7. Clause 4.55(1A) of the EPA Act is in the following terms:

(1A) Modifications involving minimal environmental impact

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification.

8. Section 8.18 of the EPA Act in relation to the Court’s powers on hearing an appeal concerning orders is in the following terms:

(4) On hearing an appeal, the Court may—

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

9. Section 8.25 of the EPA Act in relation to the Court’s powers on hearing an appeal with respect to building information certificates is in the following terms:

(3) On hearing the appeal, the Court may do any one or more of the following—

(a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b) revoke, alter or confirm a notice to supply information,

(c) make any other order that it considers appropriate.

10. The site is zoned R2 Low Density Residential pursuant to Parramatta (former The Hills) Local Environmental Plan 2012 (LEP 2012). The objectives of the R2 zone are:

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

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

• To maintain the existing low density residential character of the area.

Consideration

11. The parties have reached an agreement on what changes are to be made to those built elements of the existing development on the site that are not in accordance with the development consent; including the built elements to be demolished, the built elements to be modified and the built elements to be retained. The parties agreed on the changes shown in the building plans at Attachment 1 and the landscape plans at Attachment 2. The parties’ agreement is reflected in the modified development consent, the modified development control order and the orders regarding the issuing of a building information certificate following the carrying out of works listed at Order (3) at [17].

12. I am satisfied that the changes proposed to the approved development by the modification application are of minimal environmental impact because the development as modified results in no additional impacts on adjoining properties or the public domain when compared to the development the subject of the development consent.

13. I am satisfied that development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. On a qualitative and quantitative analysis, the changes proposed by the amended Modification Application are modest and the built form of the modified development maintains the same character and essence as that which was originally approved.

14. I accept the Council’s submission that the original Modification Application was notified in accordance with the requirements of s 4.55(1A)(c) of the EPA Act, between 19 April 2018 and 4 May 2018 and one submission was received. I accept the Council’s submission that the amended Modification Application is not required to be renotified. A copy of the submission received by the Council in relation to the original Modification Application was provided to the Court. The matters raised in the submission have been satisfactorily addressed by the amended Modification Application to the extent that they can be.

Orders

Proceedings 2018/387699

15. The orders of the Court are:

1. The applicant is granted leave to amend Modification Application No. 591/2017/4 to rely on amended plans and documentation, listed at condition 1 of the consolidated conditions of consent, at Annexure A.

2. The appeal is upheld.

3. Modification Application No. DA/591/2017/A to modify Development Consent DA/55/2015 for the demolition of the existing dwelling and construction of a three-storey dwelling with rooftop terrace, inground swimming pool and retaining walls is approved, subject to the consolidated conditions of consent at Annexure A.

Proceedings 2018/387918

16. The orders of the Court are:

1. The appeal is upheld.

2. The development control order issued by the respondent to the applicant on 19 November 2018, is, pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act1979, modified in accordance with the terms of the development control order at Annexure A.

3. The works required under the modified development control in Order (2) must be completed by the time specified in the development control order or such other period as may be agreed in writing by the respondent’s Group Manager Regulatory Services.

4. The Court grants liberty to the applicant to apply to extend the time referred to in Order (3) in the event that, despite employing her best endeavours, she is not reasonably able to complete those works within the time referred to in Order (3).

Proceedings 2019/242510

17. The orders of the Court are:

1. The applicant is granted leave to amend the Building Information Certificate Application No. 161/2018 to rely on the following plans:

   (a)   Drawing No. 1148S4.55.01, Site Ground Floor Plans, Revision Z dated 2 December 2020;

   (b)   Drawing No.1148S4.55.02, Ground Floor Plan, Revision W, dated 2 December 2020;

   (c)   Drawing No.1148S4.55.03, First Floor Plan, Revision M, dated 25 November 2020;

   (d)   Drawing No.1148S4.55.04, Basement Floor Plan, Revision N, dated 26 November 2020;

   (e)   Drawing No.1148S4.55.05, Roof Plan, Revision R, dated 2 December 2020;

   (f)   Drawing No.1148S4.55.06, Sections, Revision R, dated 26 November 2020;

   (g)   Drawing No.1148S4.55.07, Elevations, Revision U, dated 26 November 2020;

   (h)   Drawing No.1148S4.55.08, Elevations, Revision T, dated 26 November 2020;

   (i)   Drawing No.1148S4.55.13, Cabana Plans and Elevations, Revision D, dated 2 December 2020;

   (j)   Drawing No.1148S4.55.14, Front Landscape Plan, Revision B, dated 26 November 2020;

   (k)   Drawing No. 1759LAN1, Landscape Concept Plan, Revision G, dated 26 November 2020; and

   (l)   Drawing No.1759LAN2, Front Setback Detail, Revision F, dated 26 November 2020.

2. The appeal is upheld.

3. The applicant is to carry out the following works:

   (a)   remove both entry awning structures in the front setback, cut back timber posts to match 1200 high fence and retain glass infill;

   (b)   reduce height of the decorative stone wall in the front setback from RL 65.82 to RL 65.38 (by 440mm or no more than 980mm above natural ground level);

   (c)   reduce the eastern side boundary fence to 1.2m high for the first 2 panels;

   (d)   cutback roof and walls to the cabana to 900mm from the side boundary and provide a 1500mm high sound proof enclosure to the pool pump area;

   (e)   reduced the height of side, font and back of the pump walls of the cabana to 1500mm;

   (f)   install privacy screens to the south eastern elevation of the cabana to a height of 2.1m;

   (g)   the blades on the cabana are to be cut back to the cabana's roof level;

   (h)   cut back concrete on the eastern rear boundary and provide 5m x 0.5m area for screen planting;

   (i)   remove pot plants and planters from the roof;

   (j)   remove 1.5m high glass balustrade around the perimeter of the roof;

   (k)   provide pebble or river stones to surface of roof top to make non-trafficable;

   (l)   remove retractable awning structure and shade from the rooftop;

   (m)   reduce height of metal awning over kitchenette on the roof top level to RL75.005m AHD;

   (n)   remove security gate on the existing glass balustrade around the perimeter of the roof terrace and replace security gate with a fixed balustrade;

   (o)   the lift over run and metal roof structure is to be reduced by 1.1m in height to RL 75.005;

   (p)   install visual indicators on the glass partitions within the basement area in accordance with AS 1288 and Part 3.6.4 of the BCA; and

   (q)   carry out landscaping works in accordance with:

   (i)   Landscape Concept Plan No.1759LAN1, Revision G, dated 26 November 2020 prepared by Bio Engineered Solutions Pty Ltd; and

   (ii)   Front Setback Detail Plan No.1759LAN2, Revision F, dated 26 November 2020 prepared by Bio Engineered Solutions Pty Ltd;

4. Within 14 days of completing the works, the applicant is to notify the City of Parramatta Council in writing that she has complete the works referred to in Order (3).

5. Upon the City of Parramatta Council providing notice to the applicant in writing as to its satisfaction that the applicant has complied with Order (3), the Council is directed, within 14 days, to issue a building information certificate for:

   Basement Level

   (a)   basement wall extended towards the rear of the building so as to align with the outer face of the ground floor level alfresco area;

   (b)   internal wall/doors constructed within sections of the basement floor area creating rooms that are used for a home cinema, gymnasium and rumpus room;

   (c)   an increase in the size of the lift shaft to accommodate a larger cabin;

   (d)   Modifications to the approved powder room.

   Ground Floor Level

   (e)   side boundary facing dining room window deleted (south eastern elevation);

   (f)   kitchen layout reconfigured;

   (g)   an increase in the size of the life shaft to accommodate a larger cabin;

   (h)   adjustments to the size of the walk-in pantry, powder room and laundry;

   (i)   adjustment to the configuration of the guest bedroom ensuite;

   (j)   adjustment in the alignment of the street facing ‘guest bedroom’ wall;

   (k)   adjustment to the corner window of the lounge room and the addition of a small street facing balcony off the lounge room and doors between the lounge room and balcony;

   (l)   privacy screen/wall (side facing) to the alfresco dining area increased in height;

   (m)   alternation of steps leading from the rear alfresco area to the rear yard;

   (n)   cabana with toilet and pool pump room added;

   (o)   reduced pool length;

   (p)   alterations to the front patio and stairs.

   First Floor Level

   (q)   modification of the design of the rear facing ‘bedroom 1’ window;

   (r)   modification of the configuration of the ‘bedroom 1’ ensuite and WIR, and the ‘bedroom 2’ WIR and ensuite;

   (s)   adjustment in the alignment of the street facing ‘bedroom 2’ external wall;

   (t)   an increase in the size of the common bathroom (with a corresponding reduction in the size of the ‘bedroom 4’ WIR);

   (u)   an increase in the size of the lift shaft to accommodate a larger cabin.

   Roof Top Terrace

   (v)   a reduction in the size of the approved trafficable area (the rear screen wall is setback further from the rear building wall); Change to A reduction in the size of the approved trafficable area (the area is setback further from the rear building wall).

   (w)   provision of a BBQ within the approved trafficable area and an awning over the BBQ area;

   (x)   provision of a spa;

   (y)   the provision of a river stone/pebble surface to the ‘non trafficable’ area of the roof top;

   (z)   an increase in the height of the lift over run to RL75.005;

   (aa)   relocation of the air conditioning condenser unit to the south east external wall of the roof top terrace;

   (bb)   adjustment to the configuration of the skylight;

   (cc)   relocation of the solar panels to cabana roof top;

   (dd)   inclusion of a Vergola over balcony to bedroom 4.

   Landscaping

   (ee)   alterations to the street front landscaping including the introduction of planter boxes, provision of a low decorative stone wall, amended street fencing design, and alterations to paving and planting schedule;

   (ff)   alterations to the landscaping along the side boundaries to provide a combination of deep soil landscape beds and all-weather pathways;

   (gg)   provision of artificial turf in the rear yard in lieu of natural turf;

   (hh)   provision of a privacy screen to the south eastern elevation of the cabana;

   (ii)   provision of a garden bed between the pool and the side boundary.

6. In the event that the Council has not issued a building information certificate within 14 days of the applicant providing notice as referred to order (4), the applicant has liberty to apply to the Court by way of Notice of Motion to restore this matter to the list.

________________

Susan O’Neill

Commissioner of the Court

Attachment 1 (5852139, pdf)

Attachment 2 (4299830, pdf)

Proceedings 2018/387699

Annexure A (210657, pdf)

Proceedings 2018/387918

Annexure A (4952544, pdf)

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Decision last updated: 22 January 2021