Karimbla Properties (No. 59) Pty Limited v City of Parramatta Council (No 2)

[2023] NSWLEC 1509

Land and Environment Court

New South Wales

Medium Neutral Citation:

Karimbla Properties (No. 59) Pty Limited v City of Parramatta Council (No 2) [2023] NSWLEC 1509

Hearing dates:

19-21 April 2023

Date of orders:

06 September 2023

Decision date:

06 September 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

Proceedings 2022/142290:

The orders of the Court are:

(1) The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979.

(2) The appeal is upheld.

(3) Development Consent No 314/2017 for a 30-storey mixed use tower building with a five-storey basement (concept approval only) is modified by Modification Application No. 314/2017/A, subject to the consolidated conditions of consent at Annexure A.

(4) The exhibits, other than exhibits 1, 2, 3, A, B, C and Q, are returned.

Proceedings 2022/142281:

The orders of the Court are:

(1) The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979.

(2) The appeal is upheld.

(3) Development Application No 1128/2021 for the Stage One early works associated with the construction of a mixed-use development, including site clearing and removal of 12 trees including two street trees, excavation to accommodate a five-storey basement, and construction of associated shoring, retaining walls and drainage works, is determined by the grant of consent, subject to the conditions of consent at Annexure B.

Proceedings 2022/142308:

The orders of the Court are:

(1) The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979.

(2) The appeal is upheld.

(3) Development Application No 1/2022 for a Stage Two detailed design of the concept approval (as modified by Modification Application No 314/2017/A) for the construction of a 30-storey mixed use building comprising five levels of basement parking providing 299 car parking spaces (264 residential and 31 visitor spaces), two storey commercial podium (containing one retail unit, a 60 place centre-based child care facility and commercial office space) and residential tower above, comprising 204 residential units, landscaping and public domain works, is determined by the grant of consent, subject to the conditions of consent at Annexure C.

Catchwords:

DEVELOPMENT APPEAL – conditions of consent for three separate appeals concerning the modification of a concept approval and stages one and two development applications.

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.15

Uniform Civil Procedure Rules 2005, r 36.15

Cases Cited:

Karimbla Properties (No. 59) Pty Limited v City of Parramatta Council [2023] NSWLEC 1365

Category:

Principal judgment

Parties:

Karimbla Properties (No. 59) Pty Limited (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
I Hemmings SC with J Farrell (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Meriton Property Services Pty Ltd (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/142281, 2022/142290, 2022/142308

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Today, 6 September 2023, with the consent of the parties, I have set aside the Court orders made on 13 July 2023 in my judgment Karimbla Properties (No. 59) Pty Limited v City of Parramatta Council [2023] NSWLEC 1365 pursuant to r 36.15(2) of the Uniform Civil Procedure Rules 2005 in Appeal Numbers 2022/142281, 2022/142290, 2022/142308 in relation to a modification application and two development applications for a 30-storey mixed use building, at 37-41 Oxford Street, Epping.

2. I have done this because I need to address the final terms of the conditions of consent in each of the matters.

3. In short, my judgment dated 13 July 2023 accurately records my reasons for findings which support the modification of the concept approval and a conditional approval of the development applications numbered 1128/2021 and 1/2022, however the conditions of consent included conditions that were not agreed by the parties. The conditions which form Annexures A, B and C to this judgment now correctly reflect those reasons given in the judgment dated 13 July 2023.

Final conditions for the Stage Two development application (Annexure C)

Condition 41A

4. The Applicant proposes the following version of condition 41A:

“41A. Prior to the issue of the relevant construction certificate it must be demonstrated that natural ventilation in habitable rooms that rely on fall-protected openings as the source of natural ventilation will be adequate. In that regard the opening(s) for natural ventilation must provide the minimum Effective Open Area of 5% of the floor area served, calculated as per the Apartment Design Guide as referred to in State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development. No fly screens are to be installed.”

5. The Applicant’s submissions are:

“The Applicant’s proposed condition refers to the “relevant” construction certificate and provides that “no fly screens are to be installed”. The Respondent’s concerns are best mitigated by specifying that no fly screens are to be installed. This will also be binding on future owners/occupants. The Court should assume that there will be compliance with conditions imposed by the Court. The established presumption is that when a development consent is granted subject to conditions whatever individual or entity has the benefit of that consent, from time to time, will observe the conditions that are attached to it: TL & TL Tradings Pty Ltd v Parramatta City Council [2016] NSWLEC 150 at [112], Jonah v Pittwater Council [2006] NSWLEC 99 at [19], [33] – [39].”

6. The Council proposes the following version of condition 41A:

“41A. Prior to the issue of any construction certificate it must be demonstrated that natural ventilation in habitable rooms that rely on fall-protected openings as the source of natural ventilation will be adequate. In that regard the opening(s) for natural ventilation must provide the minimum Effective Open Area of 5% of the floor area served, calculated as per the Apartment Design Guide as referred to in State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, and allow for the additional losses from fly screens to account for any future installation.”

7. The Council’s submissions are:

“The Respondent’s position is that Apartment Design Guide requires the loss of airflow due to fly screens to be considered. Whilst the developer may choose not to provide fly screens at the time of construction, natural ventilation needs to be adequate if the homeowner subsequently chooses to install fly screens.”

8. The cross-ventilation experts agreed that a comfortable indoor environment can be achieved within a single aspect unit, at [55] of the judgment, Karimbla Properties (No. 59) Pty Limited v City of Parramatta Council [2023] NSWLEC 1365. There was no evidence given regarding the performance of fly screens in window openings. This condition should only affect the single aspect units, as the contention regarding a lack of cross ventilation was directed at the higher proportion of single aspect units in this proposal as they did not achieve the natural cross ventilation of a dual aspect unit. I prefer the Council’s position because I accept that natural ventilation needs to be adequate if the homeowner subsequently chooses to install fly screens, and it is impractical to attempt to prevent any fly screens being installed in the future.

Condition 50

9. The Applicant proposes the following version of condition 50:

“Groundwater Management Plan

50.   At the completion of early works, but prior to issue of the relevant Construction Certificate for anything other than shoring/piling, a Groundwater Management Plan must be prepared and submitted to and approved by Council’s Manager Development and Traffic Services. The Groundwater Management Plan must outline the detailed design of the groundwater management system and must:

a) Include a schematic plan and details of the groundwater management system, including capture, storage, treatment and reuse.

b) Include groundwater storage on the site with a minimum capacity to hold all pumped or otherwise retrieved groundwater for 5 days in case the groundwater reuse system fails.

c) Account for any increased inflows or contamination measured during excavation.

d) Notwithstanding the above requirements, the Plan must be generally in accordance with the requirements in the following reports/documents:

i. Geotechnical Investigation prepared by JK Geotechnics, Ref 342095Yrpt4, dated 4 November 2022

ii. Groundwater Modelling by JK Geotechnics, Ref 34290Yrpt5, dated 07 Nov 2022

iii. Stormwater Drainage & Groundwater Management Plan by DT Civil, project number 0185-21-MT, issue H, dated 16 Mar 2023.

iv. Groundwater Re-use Concept prepared by Goldfish & Bay, Ref SKH-001, Revision 5, Dated March 2023.

e) A Water Balance Study to ensure the Groundwater Management Plan volumes are correct and onsite reuse is sufficiently sized to deplete all groundwater inflows.

f) Methods of disposal other than draining to Councils system in the event that reuse demand does not meet the supply.

g) spare

h) The Irrigation demand shall be calculated by a suitably qualified person.

i) If it is found at the time of excavation that inflows of groundwater exceed the irrigation requirement, other reuse strategies shall be implemented. Such as toilet flushing.

Reason: To ensure that groundwater can be managed on site as proposed.”

10. The Applicant’s submissions are:

“Applicant has deleted the requirement at (g) which provides (in the Respondent’s version) that the BASIX contribution to irrigation shall be considered in the irrigation calculations. The BASIX no longer relies on rain tank for garden irrigation.”

11. The Council proposes the following version of condition 50:

“Groundwater Management Plan

50.   At the completion of early works, but prior to the issue of the relevant Construction Certificate for anything other than shoring/piling, a Groundwater Management Plan must be prepared and submitted to and approved by Council’s Manager Development and Traffic Services. The Groundwater Management Plan must outline the detailed design of the groundwater management system and must:

a) Include a schematic plan and details of the groundwater management system, including capture, storage, treatment and reuse.

b) Include groundwater storage on the site with a minimum capacity to hold all pumped or otherwise retrieved groundwater for 5 days in case the groundwater reuse system fails.

c) Account for any increased inflows or contamination measured during excavation.

d) Notwithstanding the above requirements, the Plan must be generally in accordance with the requirements in the following reports/documents:

i. Geotechnical Investigation prepared by JK Geotechnics, Ref 342095Yrpt4, dated 4 November 2022

ii. Groundwater Modelling by JK Geotechnics, Ref 34290Yrpt5, dated 07 Nov 2022

iii. Stormwater Drainage & Groundwater Management Plan by DT Civil, project number 0185-21-MT, issue H, dated 16 Mar 2023.

iv. Groundwater Re-use Concept prepared by Goldfish & Bay, Ref SKH-001, Revision 5, Dated March 2023.

e) A Water Balance Study to ensure the Groundwater Management Plan volumes are correct and onsite reuse is sufficiently sized to deplete all groundwater inflows.

f) Methods of disposal other than draining to Councils system in the event that reuse demand does not meet the supply.

g) The BASIX contribution to irrigation shall be considered in the irrigation calculations.

h) The Irrigation demand shall be calculated by a suitably qualified person.

i) If it is found at the time of excavation that inflows of groundwater exceed the irrigation requirement, other reuse strategies shall be implemented. Such as toilet flushing.

Reason: To ensure that groundwater can be managed on site as proposed.”

12. I prefer the Council’s version of the condition. If the BASIX no longer relies on rain tank for garden irrigation, then the BASIX contribution to irrigation will be nil.

Orders

Proceedings 2022/142290:

13. The orders of the Court are:

1. The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979.

2. The appeal is upheld.

3. Development Consent No. 314/2017 for a 30-storey mixed use tower building with a five-storey basement (concept approval only) is modified by Modification Application No. 314/2017/A, subject to the consolidated conditions of consent at Annexure A.

4. The exhibits, other than exhibits 1, 2, 3, A, B, C and Q, are returned.

Proceedings 2022/142281:

14. The orders of the Court are:

1. The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979.

2. The appeal is upheld.

3. Development Application No. 1128/2021 for the Stage One early works associated with the construction of a mixed-use development, including site clearing and removal of 12 trees including two street trees, excavation to accommodate a five-storey basement, and construction of associated shoring, retaining walls and drainage works, is determined by the grant of consent, subject to the conditions of consent at Annexure B.

Proceedings 2022/142308:

15. The orders of the Court are:

1. The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979.

2. The appeal is upheld.

3. Development Application No. 1/2022 for a Stage Two detailed design of the concept approval (as modified by Modification Application No. 314/2017/A) for the construction of a 30 storey mixed use building comprising five levels of basement parking providing 299 car parking spaces (264 residential and 31 visitor spaces), two storey commercial podium (containing one retail unit, a 60 place centre-based child care facility and commercial office space) and residential tower above, comprising 204 residential units, landscaping and public domain works, is determined by the grant of consent, subject to the conditions of consent at Annexure C.

Susan O’Neill

Commissioner of the Court

142290.22 Annexure A 

142281.22 Annexure B

142308.22 Annexure C

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Decision last updated: 06 September 2023