Malouf v City of Parramatta Council

[2024] NSWLEC 1072

Land and Environment Court

New South Wales

Medium Neutral Citation:

Malouf v City of Parramatta Council [2024] NSWLEC 1072

Hearing dates:

Conciliation conference held 23 August, 18 September, 27 October, 24 November, 12 December 2023, and 29 January and 2 February 2024

Date of orders:

23 February 2024

Decision date:

23 February 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA/221/2022 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed amount of $8,500 within 21 days of the date of these orders.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA/221/2022 (as amended) for demolition of existing structures, removal of trees, reconfiguration of subdivision creating two Torrens title lots and seven community title lots, construction of six two-storey dual occupancies and one two-storey dwelling house and subsequent subdivision of dual occupancies, retention of existing dwelling house at 18-20 Lake Street and construction of a new road on the land at 14-20 Lake Street and 55-57 Pennant Hills Road, North Parramatta, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – subdivision – dual occupancies – dwelling house – new road – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7, 8.14, 8.15

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2021, s 38

Parramatta Local Environmental Plan 2011, cll 2.1, 2.3, 2.6, 2.7, 4.1, 4.3, 4.4, 5.10, 6.1, 6.2, 6.11

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.77, 2.119. 2.120

Category:

Principal judgment

Parties:

Naaman Graham Malouf (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Macquarie Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/72317

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), brought by Naaman Graham Malouf (the Applicant), against the refusal of Development Application DA/221/2022 (the DA) by the City of Parramatta Council (the Respondent). At the time of its refusal, the DA sought consent for demolition of existing structures, tree removal, a nine into nine lot Torrens title subdivision, construction of seven two-storey dual occupancies and one dwelling house, and construction of a new public road at 8 and 14-20 Lake Street and 55-57 Pennant Hills Road, North Parramatta (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 August, 18 September, 27 October, 24 November, 12 December 2023, and 29 January and 2 February 2024. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of note, the DA has been amended by the Applicant to resolve the contentions initially raised by the Respondent, which included issues of the design of the proposed public road, bushfire risk and the adequacy of proposed drainage, amongst other contentions.

5. The agreed amendments include adjustments to the alignment, design and character of the proposed new road, which is now proposed to be privately owned and managed by the establishment of a community title, an enhanced landscape design and corresponding changes to the proposed subdivision pattern, particularly reflecting the deletion of all proposed works at 8 Lake Street from the amended DA.

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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was publicly notified from 8 April to 13 May 2022 and one submission was received by the Respondent. At the commencement of the conciliation conference the Court benefited from an additional oral submission made by a resident living immediately adjacent to the site.

10. The issues raised in written and oral submissions include concerns for privacy impacts and cross viewing, acoustic and air pollution arising from the proposed new road, traffic impacts, associated reduction in amenity, loss of vegetation and bushland, and reduced property value.

11. During the adjourned conciliation conference, the amended DA was publicly notified from 16 November to 7 December 2023. Two further written submissions were received by the Respondent from affected neighbours, which introduced no further issues beyond those previously raised.

12. The parties agree that the amended DA satisfactorily responds to the matters raised in submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

13. The parties agree, and I am satisfied, that the Parramatta Local Environmental Plan 2011 (PLEP) is the relevant local environmental planning instrument. Pursuant to cl 2.1 of the PLEP - Land use zones - the site is zoned R2 Low Density Residential and the proposed development - characterised as a dwelling house, dual occupancies, and ancillary development - is permissible with consent.

14. Similarly, pursuant to cll 2.6 and 2.7 of the PLEP subdivision of land and demolition of structures are each permissible with consent.

15. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the PLEP, the proposed development is consistent with the R2 Low Density Residential zone objectives, which include providing for the housing needs of the community within a low-density residential environment.

16. The parties agree, and I am satisfied, that all principal development standards of the PLEP have been met by the amended DA as noted below.

17. Pursuant to cl 4.1(3) of the PLEP, the site is subject to minimum subdivision lot size of 550sqm, however this development standard does not apply in this instance because the amended DA proposes community title subdivision.

18. Pursuant to cl 4.3 of the PLEP, the amended DA is consistent with the maximum height of buildings development standard of 9m.

19. Pursuant to cl 4.4 of the PLEP, the amended DA is consistent with the floor space ratio development standard of 0.5:1.

20. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the PLEP - Heritage conservation - the site is not identified as a heritage item, nor is it situated within a Heritage Conservation Area (HCA). However, the site is bounded to its north by an identified heritage item, Lake Parramatta Reserve (item I335). The parties agree, and I am satisfied, that the amended DA brings with it no unacceptable impacts upon this heritage item and is therefore consistent with the terms of cl 5.10(4) of the PLEP.

21. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the PLEP - Acid sulfate soils - the site is identified as being affected by Class 5 acid sulfate soils within the relevant Acid Sulfate Soils Map, however the parties agree, and I am satisfied, that pursuant to cl 6.1(4) an acid sulfate management plan is not required.

22. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the PLEP - Earthworks - the amended DA has been assessed by the Respondent and I am satisfied those matters set out at cl 6.2(3) have been appropriately considered.

23. The parties agree, and I am satisfied, that pursuant to cl 6.11 of the PLEP - Dual occupancies on land in Zones R2, R3 and R4 - each lot proposed to contain a dual occupancy within the amended DA has a lot size of 600sqm or greater.

24. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

25. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument.

26. Pursuant to s 2.48 of SEPP Infrastructure, the DA was referred to Endeavour Energy, which raised no concerns with the DA.

27. Pursuant to s 2.77 of SEPP Infrastructure, the DA was referred to Ampol (due to the proximity of a pipeline located nearby on the eastern side of James Ruse Drive), which raised no concerns with the DA.

28. Pursuant to s 2.119 of SEPP Infrastructure, the DA was referred to Transport for NSW (TfNSW) given the site’s frontage to classified roads at James Ruse Drive and Pennant Hills Road.

29. Although no response has been received from TfNSW the parties agree, and I am satisfied, that those matters set out at s 2.119(2) of SEPP Infrastructure have been addressed by the DA since the site does not propose any vehicle access from these classified roads and dwellings are sited in a manner to ameliorate noise and pollution impacts arising from these classified roads.

30. Pursuant to s 2.120 of SEPP Infrastructure, the Applicant has provided an acoustic report appropriately addressing those matters set out at s 2.120(3) of the SEPP.

31. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). Amended BASIX certificates have been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificates.

32. The parties agree, and I am satisfied, that the amended DA is integrated development pursuant to s 4.46 of the EPA Act, given that a bushfire safety authority is required under s 100B of the Rural Fires Act 1997. The Respondent referred the DA to the NSW Rural Fire Service for the issue of General Terms of Approval (GTA), however none were issued.

33. Notwithstanding the absence of GTA, s 8.14(4) of the EPA Act allows the Court to determine the appeal whether or not the Respondent has obtained GTA from a relevant approval body.

34. In the circumstances of this particular matter the parties agree, and I am satisfied, that imposed conditions of consent appropriately address bushfire affectation by way of the creation of Asset Protection Zones, the application of construction standards for bushfire prone areas, landscaping measures consistent with bush fire protection, the provision of suitable water and utility services, and provision of access for emergency services.

35. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

36. The Court notes that:

1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 21 February 2024.

37. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA/221/2022 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed amount of $8,500 within 21 days of the date of these orders.

3. The appeal is upheld.

4. Consent is granted to Development Application DA/221/2022 (as amended) for demolition of existing structures, removal of trees, reconfiguration of subdivision creating two Torrens title lots and seven community title lots, construction of six two-storey dual occupancies and one two-storey dwelling house and subsequent subdivision of dual occupancies, retention of existing dwelling house at 18-20 Lake Street and construction of a new road on the land at 14-20 Lake Street and 55-57 Pennant Hills Road North Parramatta, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

Site Plan

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Decision last updated: 23 February 2024