Maronese Developments Pty Ltd v City of Parramatta Council

[2020] NSWLEC 1368

Land and Environment Court

New South Wales

Medium Neutral Citation:

Maronese Developments Pty Ltd v City of Parramatta Council [2020] NSWLEC 1368

Hearing dates:

Conciliation conference on 24 July 2020

Date of orders:

18 August 2020

Decision date:

18 August 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to in condition 1 in Annexure A.

(2) The appeal is upheld.

(3) Development application DA/730/2018 seeking the demolition of existing structures and tree removal and the construction of a 4-storey boarding house development at premises known as 20 Young Road, Carlingford is approved subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – boarding house – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy No 55 – Remediation of Land

Category:

Principal judgment

Parties:

Maronese Developments Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

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

Solicitors:
Conomos Legal (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2019/142195

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and tree removal, and the construction of a 4-storey boarding house development at 20 Young Road, Carlingford. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 was on 24 July 2020. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a boarding house, which is a permissible use within the R4 High Density Residential zone in which the site is located, pursuant to the Hills Local Environmental Plan 2012 (“HLEP 2012”).

• The proposed development complies with the applicable development standards in the HLEP 2012 for height and floor space ratio, and with the applicable development standards in the State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”).

• Consideration has been given as to whether the design of the development is compatible with the character of the local area, as required by cl 30A of the SEPP ARH. The parties agree that, as a result of amendments to the plans which increase the side setbacks of the built form, the design is compatible with the local character, which is characterised by single and double storey residential dwellings and residential flat buildings.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated.

• The amended development application is supported by an updated BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court orders that:

1. The applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to in condition 1 in Annexure A.

2. The appeal is upheld.

3. Development application DA/730/2018 seeking the demolition of existing structures and tree removal and the construction of a 4-storey boarding house development at premises known as 20 Young Road, Carlingford is approved subject to the conditions in Annexure A.

……………………..

J Gray

Commissioner of the Court

Annexure A (294884, pdf)

Plans (14021932, pdf)

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Decision last updated: 18 August 2020