Kadiyala v City of Parramatta Council

[2020] NSWLEC 1401

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kadiyala v City of Parramatta Council [2020] NSWLEC 1401

Hearing dates:

Conciliation conference on 14 and 24 August 2020

Date of orders:

31 August 2020

Decision date:

31 August 2020

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

See orders at [8]

Catchwords:

DEVELOPMENT APPEAL – demolition – subdivision – stormwater and drainage – flood planning – tree removal – owner’s consent – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979

Hornsby Local Environmental Plan 2013

Land and Environment Court Act 1979

State Environmental Planning Policy 55 – Remediation of Land

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

Category:

Principal judgment

Parties:

Vinay Kadiyala (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
D Tyrell (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

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

File Number(s):

2019/158939

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 - Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA/538/2018 seeking consent for the demolition of existing structures, tree removal and Torrens Title subdivision of one (1) lot (being Lot 7 in DP 25433) into two (2) lots (the Proposed Development) on land at 54 Somerset Street, Epping NSW (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 14 and 24 August 2020. I have presided over the conciliation conference.

3. 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. This decision involved granting leave to amend the development application and rely on amended plans, costs, upholding the appeal and granting development consent to the development application subject to conditions.

4. 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 development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be permissibility, flood planning, owners’ consent, remediation of land and vegetation in non-rural areas. The parties explained how the jurisdictional prerequisites have been satisfied below.

1. The Proposed Development is permissible with consent in the R2 Low Density Residential Zone as set out in the Land Use Table of the Hornsby Local Environmental Plan 2013 (HLEP 2013) and relying on cl 2.6 for subdivision.

2. Pursuant to cl 6.3 of the HLEP 2013 the application satisfies the objectives of the flood planning requirements.

3. The application satisfies the objectives of State Environmental Planning Policy (Vegetation in non-rural areas) 2017 (Vegetation SEPP).

4. Notification requirements under the EPA Act have been satisfied and Council did not receive any submissions.

5. The Proposed Development involves works on neighbouring properties and owners’ consent for the development the subject of the application has been provided.

6. Pursuant to cl 7(1) of the State Environmental Planning Policy No- 55 Remediation of Land (SEPP 55) the Respondent has considered whether or not the land is contaminated and is satisfied that the subject site is suitable for the proposed development.

6. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I form this state of satisfaction referring to the reasons provided by the parties and as follows:

1. I accept and adopt the reasons of the parties regarding permissibility.

2. In relation to flood planning, I agree with and accept that the objectives of cl 6.3 of the HLEP 2013 are satisfied by the Proposed Development and in addition, pursuant to cl 6.3(3) of the HLEP 2013 I am satisfied that the Proposed Development:

(a)  is compatible with the flood hazard of the land, and

(b)  will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c)  incorporates appropriate measures to manage risk to life from flood, and

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

(e)  is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

3. The reasons for my satisfaction that cl 6.3(3) of the HLEP 2013 is complied with is because the consent conditions impose obligations on the Proposed Development consistent with recommendations contained in the following documents which address the items (a) to (e) above:

1. consent conditions 15, 37, 38 and 54;

2. Stormwater Drainage Layout Plan Rev B prepared by Acor Consulting dated 19 November 2019;

3. Flood Impact Assessment report prepared by ING Consulting Engineers Pty Ltd dated 25 May 2018; and

4. Flood Investigation report prepared by Acor Consulting dated 19 November 2019 and 13 February 2020.

4. The Proposed Development will involve the removal of a number of trees and the protection of others which invokes the application of the Vegetation SEPP and I am satisfied that compliance is achieved by the inclusion of consent condition number 33 together with the Arboricultural Impact Assessment prepared by Sydney tree Solutions dated 14 February 2018.

5. One of the primary concerns regarding the Proposed Development is the rebuilding of the boundary wall to address the flood planning requirements and these works will be undertaken on the Site and on adjacent lands requiring owners’ consent. I have viewed and am satisfied that written consent has been provided for works proposed in the Proposed Development on the following properties:

1. 41B Dorset Street, Epping;

2. 43 Dorset Street, Epping;

3. 52 Somerset Street, Epping; and

4. 52A Somerset Street Epping.

6. I have considered the status of the Site in relation to likely contamination as required by cl 7 of SEPP 55 and am satisfied that no further enquiry is required as the existing development on the Site is described in the Statement of Environment Effects at paragraph 2.2 as a single storey house, pool and some trees. The parties also referred me to the Development Application Assessment Report which expressly stated that in relation to SEPP 55 the Respondent did not consider the Site to be contaminated. I also considered the Statement of Facts and Contentions filed 11 July 2019 which did not raise any issue or concern regarding likely contamination.

7. 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.

8. The Court orders:

1. The applicant is granted leave to amend the development application and rely on the amended plans as follows:

DA-01	B	Site Plan Subdivision	D&C Consortium	17.01.18
DA-02	B	Sub-Division Plan	D&C Consortium Pty Ltd	17.01.18
DA-03	B	Demolition Plan	D&C Consortium Pty Ltd	17.01.18
DA-04	B	Waste Management and Sediment Control Plan	D&C Consortium Pty Ltd	17.01.18
DA-05	B	Sections Through Driveway	D&C Consortium Pty Ltd	17.01.18
19.11.19	B	Stormwater Drainage Layout Plan	ACOR CONSULTING	19.11.19

2. The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $12,000 within 3 months of the making of these orders.

3. The appeal is upheld.

4. Development Application DA/538/2018 demolition of existing structures, tree removal and Torrens Title subdivision of one (1) lot (being Lot 7 in DP 25433) into two (2) lots on land at 54 Somerset Street, Epping NSW is approved subject to the conditions of consent in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (285356, pdf)

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Decision last updated: 31 August 2020