JS Architects Pty Ltd v City of Parramatta Council

[2023] NSWLEC 1201

Land and Environment Court

New South Wales

Medium Neutral Citation:

JS Architects Pty Ltd v City of Parramatta Council [2023] NSWLEC 1201

Hearing dates:

Conciliation conference held on 21 April 2023

Date of orders:

02 May 2023

Decision date:

02 May 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Leave is granted to rely upon the amended plans and documentation listed in the conditions of consent in Annexure ‘A’.

(3) Development Application DA/178/2022, for the demolition, tree removal and construction of a multi-dwelling housing

development consisting of eight (8) townhouses over basement parking with Strata subdivision, including two (2) affordable

dwellings on Lot 1 in DP 743488, also known as 435 Wentworth Avenue, Toongabbie, is determined by the grant of consent,

subject to the conditions in Annexure ‘A’.

(4) The applicant is to pay the respondent costs in the sum of $2,850 within 14 days, as agreed, pursuant to s 8.15(3) of the

Environmental Planning and Assessment Act 1979.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 23, 37

Land and Environment Court Act 1979, s 34

Parramatta Local Environmental Plan 2011, cll 2.3, 4.3, 4.4, 5.3, 6.1, 6.2

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.98

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

State Environmental Planning Policy (Housing) 2021, ss 16, 17, 18

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

Texts Cited:

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
C Nuttall (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2022/284501

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA/178/2022 (the DA) by the City of Parramatta Council (the Council), which as amended, seeks demolition, tree removal and construction of a multi-dwelling housing development consisting of eight (8) townhouses, including two (2) affordable dwellings over basement parking with Strata subdivision, on Lot 1 in DP 743488, also known as 435 Wentworth Avenue, Toongabbie (the site).

Background

2. The DA was lodged with Council on 8 March 2022. The original DA was notified to residents, with one submission received. The DA was referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Council refused the DA on 4 August 2022. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

4. The Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

5. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and held via Microsoft Teams.

6. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issue raised by the objector has been considered. The agreed position of the parties is for the Court to grant consent to the amended Development Application DA/178/2022, with conditions.

7. 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 making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to DA/178/2022, subject to conditions in Annexure ‘A’.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically addressed:

1. Parramatta Local Environmental Plan 2011 (PLEP):

1. Pursuant to cl 2.3 of the PLEP, the proposed residential development is situated over land zoned R3 Medium Density Residential. The proposed development as described to the Court is permissible with consent. I am satisfied that the amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the PLEP, including cll 4.3, 4.4, 5.3, 6.1 and 6.2.

2. State Environmental Planning Policy (Housing) 2021 (SEPP Housing):

1. The DA seeks to construct two affordable dwellings as part of the multi-dwelling housing development, pursuant to s 16 of the SEPP Housing are engaged. I am satisfied that the provisions of SEPP Housing are addressed by provision of suitably sized and designed affordable dwellings, specifically relating to ss 17 and 18.

3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The site Is located within proximity of vegetation mapped as having biodiversity values. The amended design, specifically stormwater, ensures there are no adverse impacts to this sensitive vegetation. The amended DA satisfies the relevant requirements of the SEPP Biodiversity.

4. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):

1. The site is adjacent to a rail corridor, therefore s 2.98 of the SEPP Infrastructure is relevant for consideration. The DA was referred to Sydney Trains for concurrence, with concurrence provided and relevant conditions of consent adopted. I am satisfied that s 2.98(2) is addressed.

5. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the supporting documents to the amended DA, and historic/existing residential use of the land, the Court is satisfied that together with the agreed conditions of consent, the relevant requirements of s 4.6 of the SEPP Resilience are addressed.

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

1. A BASIX Certificate (1144851M_04) issued on 3 February 2023 is relevant to the proposed development, as amended, and is identified in the conditions of consent and supports the amended DA.

7. Parramatta Development Control Plan 2011 (PDCP):

1. The original DA was publicly notified in accordance with the PDCP, with one submission received. The relevant requirements of the PDCP are generally complied with, based on the amended plans and supporting documents to the amended DA, and described in the agreed conditions of consent.

9. Pursuant to s 23 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowners.

Grant of consent

10. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA/178/2022 can be granted consent.

13. 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.

14. The Court notes that:

1. City of Parramatta Council, as the relevant consent authority, has agreed, under s 37(1) of the EPA Reg, to the applicant amending Development Application DA/178/2022.

2. The respondent is to lodge the amended documents on the NSW Planning Portal within 14 days of the making of orders granting consent to the development application.

15. The Court orders that:

1. The appeal is upheld.

2. Leave is granted to rely upon the amended plans and documentation listed in the conditions of consent in Annexure ‘A’.

3. Development Application DA/178/2022, for the demolition, tree removal and construction of a multi-dwelling housing development consisting of eight (8) townhouses over basement parking with Strata subdivision, including two (2) affordable dwellings on Lot 1 in DP 743488, also known as 435 Wentworth Avenue, Toongabbie, is determined by the grant of consent, subject to the conditions in Annexure ‘A’.

4. The applicant is to pay the respondent costs in the sum of $2,850 within 14 days, as agreed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

Sarah Bish

Commissioner of the Court

22.284501 Annexure A (392571, pdf)

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Decision last updated: 02 May 2023