HVH Investment Pty Ltd v City of Parramatta Council

[2024] NSWLEC 1049

Land and Environment Court

New South Wales

Medium Neutral Citation:

HVH Investment Pty Ltd v City of Parramatta Council [2024] NSWLEC 1049

Hearing dates:

Conciliation conference held 31 July, 25 August, 11 September, 9 and 27 October, 8, 17 and 24 November, 1 December 2023 and 29 January 2024

Date of orders:

15 February 2024

Decision date:

15 February 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA/14/2023 and rely upon the amended plans and documents referred to in condition 1 at Annexure A.

(2) The Applicant’s written request, pursuant to cl 4.6 of the Parramatta Local Environmental Plan 2011 (PLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the PLEP, is upheld.

(3) The Applicant’s written request, pursuant to cl 4.6 of the PLEP, seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the PLEP, is upheld.

(4) The appeal is upheld.

(5) Consent is granted to Development Application DA/14/2023 (as amended) for consolidation of four lots, demolition works, tree removal and construction of a part five- and part six-storey residential flat buildings with three levels of basement car parking at 7-7B St Andrews Street and 79-79A Kissing Point Road, Dundas, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Parramatta Local Environmental Plan 2011, cll 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.4, 6.5, 6.6, 6.12

Environmental Planning and Assessment Regulation 2021, ss 29, 38

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 6.6, 6.7, 6.8, 6.9, 6.10

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.122

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

NSW Department of Planning and Environment, Planning Circular PS 18-003, February 2018

Category:

Principal judgment

Parties:

HVH Investment Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/63219

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by HVH Investment Pty Ltd (the Applicant), against the deemed refusal of Development Application DA/14/2023 (the DA) by the City of Parramatta Council (the Respondent). At the time of its lodgement, the DA sought consent for the demolition of existing structures, tree removal and construction of two part five- and part six-storey residential flat buildings with three levels of basement carparking at 7-7B St Andrews Street and 79-79A Kissing Point Road, Dundas (the site).

2. 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 31 July, 25 August, 11 September, 9 and 27 October, 8, 17 and 24 November, 1 December 2023 and 29 January 2024. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of exceedance of the relevant height of building control, stormwater, waste management, earthworks, communal open space, solar access, provision of deep soil and design quality issues more generally, amongst other contentions.

5. Agreed design amendments have been made to improve the DA’s relationship to existing neighbouring residential apartment buildings, to improve the presentation of the proposal to the primary street frontages, to resolve stormwater management satisfactorily, and to improve the amenity provided within the proposal.

6. 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 function under s 4.16 of the EPA Act to grant consent to the amended DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was publicly notified from 24 January to 22 February 2023. Six submissions, including objections, were received by the Respondent.

10. The parties agree that the amended DA now satisfactorily resolves the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

11. The parties agree, and I am satisfied, that the (subsequently repealed) Parramatta Local Environmental Plan 2011 (PLEP) is the relevant local environmental planning instrument. The site is zoned R4 High Density Residential and the proposed development - characterised as a residential apartment building - is permissible with consent.

12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the PLEP, the proposed development is consistent with the R4 High Density Residential zone objectives, which include to provide for the housing needs of the community within a high density residential environment, to provide a variety of housing types within a high density residential environment, and to provide opportunity for high density residential development close to major transport nodes, services and employment opportunities.

13. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the PLEP, demolition of existing structures on the site is permissible with consent.

14. The parties agree, and I am satisfied, that all principal development standards of the PLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings, and cl 4.4 - Floor space ratio (FSR).

15. In such an instance, cl 4.6(3) of the PLEP requires consideration of a written request from the Applicant demonstrating that compliance with each of these development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

16. Clause 4.6(4) of the PLEP requires the consent authority to be satisfied that each of the Applicant’s written requests has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

17. Additionally, cl 4.6(4)(b) of the PLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

18. As required by cl 4.6 of the PLEP, the Applicant has provided a written request seeking to vary the height of buildings development standard, prepared by Think Planners and dated 25 September 2023.

19. The parties agree, and I am satisfied, that this written request adequately justifies the proposed variance to the height of buildings development standard of 17m for the following reasons:

1. The amended DA proposes a maximum building height of 19.98m, exceeding the development standard by 2.98m and representing a variation of approximately 17.5%.

2. The areas of exceedance to the maximum building height standard are generally centred within the building footprint and are attributable to lift overruns and pergolas serving communal open space.

3. The DA has been amended during the conciliation conference to resolve the Respondent’s contentions, particularly those related to communal open space, such that the non-compliant areas are unable to be perceived in the general presentation of the building to the street and configured in a manner that is broadly consistent with the scale of development appropriate to the locality.

4. The proposed height exceedance does not give rise to additional adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

5. The objectives of the PLEP Zone R4 High Density Residential land use zone include providing for the housing needs of the community within a high density residential environment and providing a variety of housing types within a high density residential environment. I am satisfied the amended DA meets these objectives.

6. The objectives of cl 4.3 of the PLEP include to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development. I am satisfied the amended DA meets these objectives.

20. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

21. Similarly, the Applicant has provided a written request seeking to vary the development standard for FSR, prepared by Think Planners and dated 16 November 2023.

22. The parties agree, and I am satisfied, that this written request adequately justifies the proposed variance to the FSR development standard of 1.4:1 for the following reasons:

1. The amended DA proposes a total FSR of 1.41:1, equating to an exceedance of 33.29sqm of gross floor area and representing a variation to the FSR development standard of approximately 0.7%.

2. The FSR exceedance is attributable to a number of amendments made during the conciliation conference intended to improve the amenity, functionality, diversity and efficiency of apartment layouts, including adjusting bedroom sizes and larger living areas to resolve the Respondent’s contentions.

3. The FSR exceedance is minor and brings with it no material increase in impacts or diminution of amenity enjoyed by neighbouring properties.

4. The objectives of the PLEP Zone R4 High Density Residential land use zone include providing for the housing needs of the community within a high density residential environment and providing a variety of housing types within a high density residential environment. I am satisfied the amended DA meets these objectives.

5. The objectives of cl 4.4 of the PLEP include to regulate density of development and generation of vehicular and pedestrian traffic, and to provide a transition in built form and land use intensity within the area. I am satisfied the amended DA meets these objectives.

23. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.

24. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the PLEP - Heritage conservation - the site does not comprise a listed heritage item, nor is it located close to any listed heritage item or conservation area.

25. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the PLEP - Flood planning - the site is situated within a flood planning area. The DA has been amended to resolve the Respondent’s contentions regarding stormwater and overland flow issues. Further, the Applicant has provided a Flood Study Report prepared by JCO Consultants, dated 20 October 2023. The flood study concludes that any flooding impacts will be acceptable.

26. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the PLEP - Acid sulfate soils - the site is mapped as being within a Class 5 acid sulfate soils area. The Applicant has provided a Geotechnical Investigation Report and subsequent letter, both prepared by Cardno and dated 12 August 2022 and 17 July 2023 respectively. Accordingly, I am satisfied that those matters set out in cl 6.1 of the PLEP have been appropriately addressed.

27. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the PLEP - Earthworks. The Applicant has provided a Geotechnical Investigation Report prepared by Cardno, dated 12 August 2022, and has also provided a Groundwater Impact Assessment prepared by Cardno, dated 8 November 2022. I am satisfied these reports address the matters set out at cl 6.2(3). Agreed conditions of consent reflecting the reports’ recommendations are imposed.

28. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the PLEP - Biodiversity protection - the site is not identified within the relevant Natural Resources—Biodiversity Map.

29. The parties agree, and I am satisfied, that pursuant to cl 6.5 of the PLEP - Water protection - the site is not identified within the relevant Natural Resources—Riparian Land and Waterways Map.

30. The parties agree, and I am satisfied, that pursuant to cl 6.6 of the PLEP - Development on landslide risk land - the site is not identified within the relevant Natural Resources—Landslide Risk Map.

31. The parties agree, and I am satisfied, that pursuant to cl 6.12 of the PLEP - Design excellence - the amended DA exhibits design excellence in the terms set out at cl 6.12(4).

32. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

33. The parties agree, and I am satisfied, that the DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65).

34. Further, and pursuant to the provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant's architect, Texco Design Pty Ltd (and its nominated architect Mr Hsien Ming Lee - NSW registered architect 11348) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design Quality Principles set out in SEPP 65. This statement also sets out how the objectives of Parts 3 and 4 of the NSW Apartment Design Guide have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of SEPP 65.

35. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) is an additional relevant environmental planning instrument.

36. Pursuant to Ch 2 of SEPP Biodiversity and Conservation, the DA as amended seeks consent for the removal of vegetation. The Applicant has provided an Arboricultural Assessment Report prepared by Abnoba Arbor, dated 24 November 2021 and an Arborist Statement prepared by NSW Trees, dated 9 August 2023. I am satisfied the amended DA conforms with the relevant provisions of Ch 2 of SEPP Biodiversity and Conservation.

37. Pursuant to Ch 6 of SEPP Biodiversity and Conservation, the site is situated within the Hawkesbury Nepean River Catchment, a regulated catchment as defined in SEPP Biodiversity and Conservation.

38. The parties agree, and I am satisfied, the amended DA incorporates a stormwater design that satisfies those matters set out at s 6.6 of SEPP Biodiversity and Conservation.

39. Similarly, the parties agree, and I am satisfied, that the DA appropriately addresses the relevant matters set out at ss 6.7, 6.8, 6.9 and 6.10 of SEPP Biodiversity and Conservation, which deal with mandatory aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Hawkesbury-Nepean Catchment, and adverse environmental impacts on any adjacent or downstream local government areas.

40. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument.

41. In accordance with s 2.119 of SEPP Infrastructure, the DA was referred to Transport for NSW (TfNSW), given the site’s frontage to Kissing Point Road which is a classified road. The Applicant has provided a Preliminary Construction, Pedestrian and Traffic Management Plan to TfNSW. Subsequently, TfNSW has provided its concurrence on 20 November 2023.

42. In accordance with s 2.122 of SEPP Infrastructure, the parties agree, and I am satisfied, that the DA does not constitute traffic generating development.

43. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (BASIX Sustainability Index: BASIX) 2004. A BASIX certificate No 1351314M_03, issued by AENEC and dated 13 December 2023 has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

44. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

45. The Court notes that:

1. Pursuant to s 38 of the EPA Reg, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 25 January 2024.

Orders

46. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA/14/2023 and rely upon the amended plans and documents referred to in condition 1 at Annexure A.

2. The Applicant’s written request, pursuant to cl 4.6 of the Parramatta Local Environmental Plan 2011 (PLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the PLEP, is upheld.

3. The Applicant’s written request, pursuant to cl 4.6 of the PLEP, seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the PLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application DA/14/2023 (as amended) for consolidation of four lots, demolition works, tree removal and construction of a part five- and part six-storey residential flat buildings with three levels of basement car parking at 7-7B St Andrews Street and 79-79A Kissing Point Road, Dundas, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

Architectural Plans

**********

Decision last updated: 15 February 2024