JS Architects Pty Ltd v City of Parramatta Council

[2025] NSWLEC 1178

Land and Environment Court

New South Wales

Medium Neutral Citation:

JS Architects Pty Ltd v City of Parramatta Council [2025] NSWLEC 1178

Hearing dates:

5 August 2024; Conciliation conference 27 February 2025

Date of orders:

25 March 2025

Decision date:

25 March 2025

Jurisdiction:

Class 1

Before:

Macken AC

Decision:

The orders of the Court are:

(1) The appeal is upheld

(2) The Applicant’s written request, pursuant to cl 4.6 of the Parramatta Local Environmental Plan 2023 (PLEP 2023), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the PLEP 2023, is upheld.

(3) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(4) Development Application No. DA 210/2023 for the demolition of existing structures and construction of a 5 storey mixed use development comprising 2 ground floor retail tenancies, 31 apartments (including 11 apartments to be used for the purposes of affordable housing) over 3 basement levels on the land 132 Victoria Road, North Parramatta is determined by grant of consent subject to the conditions set out in ‘Annexure A’.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 29, 38

Parramatta Local Environmental Plan 2023, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6,3, 6.4, 6.5, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6

State Environmental Planning Policy (Housing) 2021, ss 145, 147, Ch4, Sch 9

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

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119, Ch 2

Texts Cited:

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

Category:

Principal judgment

Parties:

JS Architects Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
R O’Gormon-Hughes (Applicant)
N Hammond (Respondent)

Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/200193

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 210/2023 (the DA).

2. At the date of its lodgement, on 14 April 2023, the DA sought consent for the demolition of existing structures and construction of a 7 storey mixed use development comprising 3 retail tenancies, and 45 residential apartments over 3 levels of basement parking on the land at 132 Victoria Road, North Parramatta.

3. The subject site is legally described as Lot 1 DP 1007573.

4. The site is located at the north-eastern corner of Victoria Road and Gaggin Street, Parramatta, with an unnamed laneway to the rear of the site.

5. Current uses on the site include a car wash, automotive servicing and a café. All existing structures are proposed to be demolished as part of the new development.

6. The DA was notified by the City of Parramatta Council between 26 April 2023 and 24 May 2023 and two submissions were received.

7. The Applicant in these proceedings filed an appeal in Class 1 of the Court’s jurisdiction on 22 June 2023 appeal against the Respondent’s deemed refusal of the DA.

8. The DA was refused by the Parramatta Local Planning Panel on 23 June 2023.

9. The DA was amended on 14 May 2024, and re-notified by the Respondent. No submissions were received.

10. The amendments included a reduction in the height of the building from seven to five storeys.

11. The matter was part heard by the Court. At the resumed hearing, the parties requested that the proceedings be listed for further conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) on the basis that the contented issues were able to be resolved.

12. The Court arranged a conciliation conference between the parties, in accordance with the provisions of s 34 of the LEC Act, which was held on 27 February 2025. I presided over the conciliation conference.

13. On the basis of amended plans, and additional and revised 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.

14. A signed agreement was submitted to the Court on 27 February 2025, in accordance with s 34(10) of the LEC Act.

15. Generally, the agreement approves the development subject to amended plans and supporting documents that were prepared by the Applicant, along with the agreed conditions of consent annexed to the s 34 agreement.

16. 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.

17. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the Development Application.

18. I formed an opinion of satisfaction, based on the evidence and the submissions of the parties, that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

Jurisdictional matters

19. The Development Application was made with the consent of the owner of the site, as evidenced within the Class 1 Application accompanying this matter, in compliance with s 23(1)(a) of the Environmental Planning and Assessment Regulation (EPA Regulation).

20. Pursuant to the provisions of the EPA Regulation, the Applicant, (and its nominated architect Mr Ochudzawa - NSW registered architect 6865) has prepared a Design Verification Statement dated 4 February 2025, fulfilling the requirements of s 29 of the EPA Regulation and confirming that the amended DA achieves the Design principles set out in Sch 9 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.

21. Pursuant to s 27 of the EPA Regulation, the amended application is accompanied by a BASIX certificate (certificate number 1369531M_05, dated 24 January 2025, prepared by House Energy Certified), in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022.

Planning Framework

Parramatta Local Environmental Plan 2023

22. The Parramatta Local Environmental Plan 2023 (PLEP) applies to the Site, which is within the City of Parramatta Local Government Area (PLEP cl 1.3).

23. The site is located within the Zone E1 Local Centre, pursuant to PLEP 2023. The proposal is for shop top housing and commercial premises, which are permissible with consent in the Zone E1 Local Centre. The proposal is consistent with the relevant objectives of the zone, which are:

•  To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

•  To encourage investment in local commercial development that generates employment opportunities and economic growth.

•  To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

•  To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

•  To ensure the scale and type of development does not adversely affect the amenity of the surrounding neighbourhood.

Breach of Height Standard

24. Clause 4.3 (Height of Buildings) of PLEP 2023 provides that the maximum building height on the site is not to exceed 15m. The amended DA proposes a building with a maximum height of 21.37m which is in breach of the development standard by 21.69%.

25. Clause 4.6(3) of PLEP 2023 requires that the consent authority is satisfied the applicant has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances, and that there are sufficient environmental planning grounds to justify the contravention of the development standard.

26. The Applicant has provided a written request seeking to vary the height of buildings development standard, (prepared by Urbanism Pty Ltd, dated 27 February 2025).

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

1. The parties agree, and I am satisfied, that the amended DA is of a form and scale that is compatible with the existing streetscape and desired future character of the locality.

2. The amended DA is consistent with key issues of the Apartment Design Guide (ADG) and ensures an acceptable internal amenity for residential apartments.

3. Relevant to consideration of height of buildings, the Applicant places weight on s 18 of SEPP Housing, introduced on 14 December 2024.

4. The parties agree, and I am satisfied, that the bonus height of building provisions in SEPP Housing apply only to development applications made after 14 December 2023. As the subject DA was lodged on 14 April 2023, these provisions do not apply.

28. The parties agree that, although not in force at the time the DA was lodged, s 18 of SEPP Housing would apply if a new DA was lodged, and that the fact that a different development standard would apply if the DA was lodged today can be relied on in a written request to vary the applicable development standard.

29. I accept the parties’ submission that the provisions of the SEPP Housing are a relevant consideration in the Court’s assessment of the adequacy of the written request to vary the applicable development standard.

30. Section 18 of SEPP Housing currently provides that the maximum height for a building used for shop top housing is the maximum permissible height for the development on the land plus an additional building height of 30%, provided that an affordable housing component of at least 15% is provided. The proposed development includes provision for a housing component of at least 15% and this provision is incorporated into the conditions of consent (condition 123). The maximum building height applying the bonus provision in SEPP housing is 19.5m. While the amended development has a height of 1.87m above the 19.5m height, this further 5.52% beach is limited to the lift overrun, generally located toward the centre of the site, and set back from the site boundaries.

31. Consideration by the parties has been given to adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties arising from the proposed height exceedance.

32. The objectives of the PLEP Zone E1 Local Centre include to provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area, to encourage investment in local commercial development that generates employment opportunities and economic growth, to enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area, to encourage business, retail, community and other non-residential land uses on the ground floor of buildings, to ensure the scale and type of development does not adversely affect the amenity of the surrounding neighbourhood. I am satisfied that the amended DA meets these objectives.

33. The objectives of cl 4.3 of the PLEP 2023 include to ensure that height of buildings is compatible with the height of existing and desired future development in the surrounding area, and to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development, and to provide an appropriate height transition between buildings. I am satisfied the amended DA meets these objectives.

34. 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.

35. The proposal is within the floor space ratio (FSR) at cl 4.4 of PLEP 2023. The site has a maximum FSR of 2:1; the proposed development has an FSR of 2:1 (indicated on architectural plan A101 and A102, JS Architects, dated 31 January 2025).

36. Clause 5.21 (Flood Planning) of PLEP 2023 provides that consent must not be granted to development on land the consent authority believes is within a flood planning area unless the consent authority is satisfied the development:

(a)  is compatible with the flood function and behaviour on the land, and

(b)  will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c)  will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d)  incorporates appropriate measures to manage risk to life in the event of a flood, and

(e)  will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

37. The parties agree, and I am satisfied, that these requirements are met by the development for the reasons set out in the stormwater letter from Michael Bou Rada (MBR Consulting Engineers, 27 February 2025).

38. The site is identified as being in an area of Class 5 Acid Sulfate Soils (ASS) on the relevant map at cl 6.1 of PLEP. I accept the advice of the parties, supported by the addendum to the Statement of Environmental Effects (Ethos Urban; 5 April 2023) and the ASS statement (Geotesta Pty Ltd, 5 November 2024) which concludes that acid sulfate soils are not present on the site and that, as the proposed works are not located within 500m of Class 1-4 land, and not likely to lower the water table below 1m, an ASS management plan is not required.

39. I consider that the impact of the proposed earthworks, to be considered at cl 6.2 of PLEP 2023, have been considered in the Compliance Statement for Clause 6.2(3) (Geotesta Pty Ltd, 7 February 2025), and are adequately addressed in the agreed conditions of consent, and are unlikely to have a detrimental impact on environmental functions and processes, including existing drainage patterns or soil stability.

40. Clause 6.5(2) (Stormwater Management) of PLEP 2023 provides that development consent must not be granted to development unless the consent authority is satisfied the development:

(a)  is designed to maximise the use of water permeable surfaces, having regard to the soil characteristics affecting on-site infiltration of water, and

(b)  includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c)  avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland, receiving waters and land used for water-based recreation or, if the impacts cannot be reasonably avoided, minimises and mitigates the impacts.

41. The parties agree, and I accept that these requirements are met, relying on the amended stormwater plans (prepared by MBR Consulting Engineers, 31 January 2025, revision M), along with the letter from Michael Bou Rada (MBM Consulting Engineers, 27 February 2025) which demonstrate that the development has been designed in accordance with typical stormwater capture, filtration and release measures, and that the proposed conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

42. The provisions of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 apply to the site. On the basis of the Preliminary Site Investigation report (Geotesta Pty Ltd, 18 January 2023) and the conditions of consent, including conditions 12, 65, 66, 88 and 89, I accept that the site is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

43. Chapter 6 (Water Catchments) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, (Biodiversity SEPP), applies to the site as the site is located within the Sydney Harbour Catchment, which is a regulated catchment for the purposes of the Biodiversity SEPP.

44. I accept that the amended stormwater plans (prepared by MBR Consulting Engineers, 31 January 2025, revision M), along with the letter from Michael Bou Rada (MBM Consulting Engineers, 27 February 2025) demonstrate that the development has been designed in accordance with typical stormwater capture, filtration and release measures, and that the proposed conditions of consent are consistent with the requirements of Chapter 6 (Water Catchments) of the Biodiversity SEPP.

State Environmental Planning Policy (Housing) 2021

45. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of SEPP Housing. Advice received from the design review panel has been considered by the parties and has informed design amendments made to resolve the Respondent’s contentions in this matter.

46. In accordance with s 145 of SEPP Housing, the DA was referred to the Parramatta Design Excellence Panel.

47. s 147(1) of SEPP Housing prevents the grant of development consent to residential apartment development unless the consent authority has considered the following:

1. the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9,

2. the Apartment Design Guide,

3. any advice received from a design review panel within 14 days after the consent authority referred the development application or modification application to the panel.

48. The parties agree, and I am satisfied, that the SEPP 65 Compliance Design Verification Statement & Apartment Design Guide Report (signed by the nominated architect Mr Ochudzawa - NSW registered architect 6865 - dated 4 February 2025) provides sufficient information to demonstrate proper consideration of the matters listed in s. 147(1) of SEPP Housing.

State Environmental Planning Policy (Transport and Infrastructure) 2021

49. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is a relevant environmental planning instrument, as the site has a frontage to Victoria Road which is a Classified Road.

50. Section 2.119(2) provides that the consent authority must not grant consent on land that has a frontage to a classified road unless it is satisfied that:

(a)  where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b)  the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i)  the design of the vehicular access to the land, or

(ii)  the emission of smoke or dust from the development, or

(iii)  the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c)  the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

51. The parties agree, and I am satisfied that the amended DA conforms with the relevant provisions of Ch 2 of SEPP Infrastructure. The development provides vehicular access from the rear laneway off Gaggin Street. I accept that the development has been designed, and includes measures, to ameliorate potential traffic noise or vehicle emissions from the classified road which are the subject of recommendations in the Acoustic Report (Acousticworks, 21 December 2022), and which are incorporated into the conditions of consent (condition 1).

Conclusion

52. I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

53. I am required under s 34 (3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

54. 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.

55. The Court notes that:

1. The Respondent, City of Parramatta Council, has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant’s application for an amendment to Development Application No. 210/2023 to rely on the following plans and documents:

1. Architectural Plans, prepared by JS Architects Pty Ltd, dated 31 January 2025, Revision I.

2. Landscape Plans, prepared by NADDI Designs Pty Ltd, dated 27 January 2025, Revision F.

3. Compliance Statement for clause 6.2(3) of the PLEP, prepared by GEOTESTA Pty Ltd, dated 7 February 2025.

4. Engineering Plans, prepared by Mr Lithesh Prasad of InHouse Consulting Engineers, dated 3 February 2025, Revision P4.

5. Design Excellence Statement, prepared by Alan Cadogan of Urbanac Pty Ltd, dated 5 February 2025.

6. Stormwater concept plans, prepared by MBR Consulting Engineers Pty Ltd, dated 31 January 2025, Revision M.

7. SEPP 65 Compliance Design Verification Statement and Apartment Design guide report, prepared by JS Architects Pty Ltd, dated 4 February 2025, Issue B.

8. BASIX Certificate, prepared by House Energy Certified, dated 24 January 2025.

9. Clause 4.6 regarding height, prepared by Urbanism Planning and Development, dated 27 February 2025.

10. Acid Sulfate Soils statement, prepared by GEOTESTA Pty Ltd, dated 5 November 2024.

11. Letter prepared by MBR Consulting Engineers, dated 27 February 2025.

12. Technical Memorandum regarding Basement Excavation Modelling, prepared by IGS-ACE, dated 23 August 2024.

13. Hydrogeological Assessment Report, prepared by GEOTESTA Pty Ltd, dated 28 August 2024, Revision 01.

14. Geotechnical Site Investigation, prepared by GEOTESTA Pty Ltd, dated 23 August 2024, Revision 01.

15. Geotechnical and Hydrogeological Monitoring Program, prepared by GEOTESTA Pty Ltd, dated 28 October 2024, Revision 03.

16. Dewatering Management Plan, prepared by GEOTESTA Pty Ltd, dated 30 August 2024, Revision 02.

17. Impact Assessment Report on TfNSW Infrastructure and Adjacent Building, prepared by GEOTESTA Pty Ltd, dated 2 September 2024, Revision 2.

Orders

56. The Court orders that:

1. The appeal is upheld.

2. The Applicant’s written request, pursuant to cl 4.6 of the Parramatta Local Environmental Plan 2023 (PLEP 2023), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the PLEP 2023, is upheld.

3. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

4. Development Application No. DA 210/2023 for the demolition of existing structures and construction of a 5 storey mixed use development comprising 2 ground floor retail tenancies, 31 apartments (including 11 apartments to be used for the purposes of affordable housing) over 3 basement levels on the land 132 Victoria Road, North Parramatta is determined by grant of consent subject to the conditions set out in ‘Annexure A’.

N Macken

Acting Commissioner of the Court

Annexure A (852431, pdf)

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Decision last updated: 25 March 2025