Lee v City of Parramatta Council

[2024] NSWLEC 1817

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lee v City of Parramatta Council [2024] NSWLEC 1817

Hearing dates:

Conciliation conference 6 December 2024.

Date of orders:

18 December 2024

Decision date:

18 December 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DAR/2/2024 for the construction of a new front fence, driveway and landscaping works in relation to Lot 17 in DP7128, being 32 Eastwood Avenue, Eastwood NSW 2122 is determined by the grant of consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – fence – conciliation conference - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Parramatta Local Environmental Plan 2023, cll 4.3, 5.10, 6.1, 6.2, 6.5

Category:

Principal judgment

Parties:

Vivien Sien Lea Lee (Applicant)
City of Parramatta Council (Respondent)

Representation:

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

Solicitors:
McKees (Applicant)
City of Parramatta (Respondent)

File Number(s):

2024/195674

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) against the development consent and associated conditions of the review development application DAR/2/2024. The review development application seeks consent for construction of a new front fence, driveway and landscaping works (DA) at 32 Eastwood Avenue, Eastwood, legally described as Lot 17 in DP 7128 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending DAR/2/2024 in accordance with the documents listed below (amended DA):

Plan Name	Plan No.	Revision	Date	Prepared By
Proposed Fence + Yard Plan	A01	E	8/08/2024	EJE Architecture
Landscape Plan	A02	C	8/08/2024	EJE Architecture
Elevation + Section	A03	E	8/08/2024	EJE Architecture
Schedule of Materials	A04	D	8/08/2024	EJE Architecture

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 December 2024. I presided over the conciliation conference.

4. 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 the Court upholding the appeal for the amended DA and granting development consent to the amended DA subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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.

Jurisdictional Prerequisites

7. 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 and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

8. I am satisfied that owners consent accompanied the review application. The DA was lodged to the Respondent on 15 February 2024. The Respondent notified the DA from 26 February 2024 to 11 March 2024. No submissions were received.

Parramatta Local Environmental Plan 2023

9. The site is zoned R2 Low Density Residential under the Parramatta Local Environmental Plan 2023 (PLEP). The proposed development for works associated with a dwelling house is permitted with consent and I have had regard to the relevant objectives of the zone.

10. The parties agree and I accept that the following applicable PLEP provisions are met:

1. Clause 4.3 height of buildings applies to the site and allows a maximum building height of 9m. The amended DA, as shown on the architectural plans prepared by EJE Architects dated 3 August 2023 (architectural plans) confirm that the proposed fence is less than 9m.

2. Clause 5.10 applies as the site is located within the Epping/Eastwood Conservation Area. The parties set out at paragraph 31 of the jurisdictional statement that the provisions have been considered by the parties’ heritage experts.

3. Clause 6.1 acid sulfate soils applies to the site as the site is mapped as Class 5. However the proposed works are not within 500m of class 1-4 soils. The provisions of subcl 6.1 (2) and (3) do not apply.

4. Clause 6.2 earthworks applies to the proposed works. The proposed works have been considered against the provisions as set out in the Development Assessment Report.

5. Clause 6.5 stormwater management applies to the proposed works. The parties’ have satisfied themselves of the provisions as set out at paragraph 34 of the jurisdictional statement.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

11. Chapter 6 applies as the site is located within the Sydney Harbour Catchment. With consideration of the jurisdictional statement paragraphs 8 -14, the parties agree, and I accept that the provisions of SEPP BC are met.

State Environmental Planning Policy (Resilience and Hazards) 2021

12. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The jurisdictional statement and Council’s development assessment report state that the site has a history of residential use, that there is no evidence of potential or actual contamination and the works are therefore suitable for the site. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP RH have been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021

13. Section 2.48 applies as the works are located in proximity to electricity infrastructure. The parties’ advise and I accept that the referral authority did not object to the development and the authority’s conditions have been included in the conditions of consent.

Conclusion

14. 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.

15. 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.

16. I have considered the jurisdictional prerequisites and 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.

Orders

17. The Court orders:

1. The appeal is upheld.

2. Development Application No. DAR/2/2024 for the construction of a new front fence, driveway and landscaping works in relation to Lot 17 in DP7128, being 32 Eastwood Avenue, Eastwood NSW 2122 is determined by the grant of consent, subject to the conditions set out in Annexure A.

S Porter

Commissioner of the Court 

Annexure A

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Decision last updated: 18 December 2024