Moses v City of Parramatta Council

[2024] NSWLEC 1645

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moses v City of Parramatta Council [2024] NSWLEC 1645

Hearing dates:

Conciliation conference held 2 October 2024

Date of orders:

15 October 2024

Decision date:

15 October 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent is granted to DA/56/2023 for the construction of an attached two storey dual occupancy with basement, lifts, retaining walls and Torrens title subdivision into 2 lots at Lot 31 DP 270717 and known as 31 Moses Way, Winston Hills NSW 2153 subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – dual occupancy – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Parramatta Local Environmental Plan 2011, cll 2.6, 4.1, 4.3, 4.4, 6.1, 6.2, 6.6

Parramatta Local Environmental Plan 2023, cl 1.8A

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

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Category:

Principal judgment

Parties:

Murphy Moses (First Applicant)
Betty Moses (Second Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
J McKelvey (Applicants)
C Campbell (Solicitor) (Respondent)

Solicitors:
Bick & Steele (Applicants)
City of Parramatta Council (Respondent)

File Number(s):

2024/189730

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 refusal of development application DA/56/2023 The development application seeks consent for construction of an attached dual occupancy with basement, lift, retaining walls and Torrens title subdivision (DA) at 31 Moses Way, Winston Hills, legally described as Lot 31 in DP 270717 (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 DA/56/2023 in accordance with the documents listed below (amended DA):

Drawing No.	Revision	Plan Title	Dated
A004	E	Subdivision Plan	17/09/2024
A100	E	Site Plan	17/09/2024
A101	E	Garage	17/09/2024
A102	E	Lower Ground Floor	17/09/2024
A103	E	Ground Floor	17/09/2024
A104	E	First Floor	17/09/2024
A105	E	Roof Plan	17/09/2024
A200	E	South (Front) Elevation	17/09/2024
A201	E	North (Rear) Elevation	17/09/2024
A202	E	West Elevation	17/09/2024
A203	E	East Elevation	17/09/2024
A300	E	Section A-A	17/09/2024
A301	E	Section B-B	17/09/2024
A302	E	Section C-C	17/09/2024
A303	E	Section D-D	17/09/2024
A304	E	Retaining Walls	17/09/2024
A305	E	Front Fence Detail	17/09/2024
A310	E	Finishes Schedule	17/09/2024
A400	E	Doors & Window Schedule	17/09/2024
A401	E	Doors & Window Schedule	17/09/2024
Drawing/Plan No.	Issue	Plan Title	Dated
S1.00	B	Bulk Excavation Plan & Section	18.09.24
S1.01	B	Footing Plan & Section	01.08.23
S5.00	B	Basement Plan & Section	18.09.24
S5.10	B	Lower Ground Floor Plan & Section	18.09.24
S5.20	B	Ground Floor Plan & Section	18.09.24
S5.30	B	First Floor Plan & Section	18.09.24
S5.40	B	Roof Plan & Section	18.09.24
Drawing/Plan No.	Issue	Plan Title	Dated
D1	E	Details, Notes & Legend	17.09.24
D2	E	Stormwater Management Garage/Lower Ground Floor Plan	17.09.24
D3	E	Stormwater Management Site Plan	17.09.24
D4	E	Stormwater Management Ground Floor Plan	17.09.24
D5	E	Stormwater Management First Floor/Roof Plan	17.09.24
D6	E	Stormwater Details	17.09.24
D7	E	Stormwater Details	17.09.24
D8	E	Stormwater Details	17.09.24
D9	E	Driveway Design Plan and Long sections	17.09.24
D10	E	Sediment Control Plan	17.09.24
D11	E	Sediment Control Details	17.09.24
Drawing/Plan No.	Issue	Plan Title	Dated
Sht-1	A	Landscape Plan	18.09.24
Sht-2	-	Plant Schedule & Photographs	17.09.24
Sht-3	-	Landscape & Planting Guidelines	17.09.24
Document	Issue	Prepared By	Dated
BASIX Certificate No.1361621M_02	19 September 2024

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 2 October 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. 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.

9. I am satisfied that owners consent accompanied the DA. The DA was lodged to the Respondent on 30 January 2023. The Respondent notified the DA from 8 February 2023 to 22 February 2023. No submissions were received.

Parramatta Local Environmental Plan 2011

10. The site is zoned R2 Low Density Residential under the Parramatta Local Environmental Plan 2011 (PLEP). Pursuant to cl 1.8A of the Parramatta Local Environmental Plan 2023, the repealed PLEP applies instead. The proposed development for dual occupancies is permitted with consent and I have had regard to the relevant objectives of the zone.

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

1. Clause 2.6 permits subdivision of the site.

2. Clause 4.1(4B) provides an exemption to the minimum lot size under cl 4.1(3) for the proposed development.

3. 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 Tesser Architects dated 17 September 2024 (architectural plans) drawings A201 – A301 confirm that the proposed building is less than 9m (section dwgs A3100 and A3101).

4. Clause 4.4 prescribes a maximum FSR of 0.5:1. The amended DA proposes an FSR of 0.49:1 as shown on architectural plan drawing A106.

5. 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 that are below 5m AHD. The provisions of subcl 6.1(2) and (3) do not apply.

6. Clause 6.2 earthworks and cl 6.6 development on landslide risk land apply to the site. The proposed works have been considered by the Applicant and Respondent’s geotechnical experts in the joint expert report filed 27 September 2024. The parties submit that extensive geotechnical investigations from the previous parent lot DA had addressed landslip remediation issues. The parties agree that the provisions are satisfied, based on the amended DA’s geotechnical reports and the geotechnical expert’s agreement that the earthworks undertaken in accordance with the accompanying geotechnical reports and recommended conditions of consent will effectively manage the potential impacts.

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

12. The proposed development is BASIX affected development (s 27 of EPA Reg). The DA was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022, which does not apply in accordance with the savings provisions under s 4.2. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate that satisfies the repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. Chapter 6 applies as the site is located within the Sydney Harbour Catchment. The amended DA is accompanied by stormwater plans prepared by NY Civil Engineering dated 17 September 2024 that incorporate reuse of water through the proposed water tank, use of on-site detention tanks and will discharge stormwater to the street. The jurisdictional statement outlines how the parties have considered Ch 6 and are satisfied that water quality impacts will be neutral or beneficial as reasonably possible. With consideration of the above and the jurisdictional statement, the parties agree, and I accept that the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 are met.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. 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 assessment report state that the site is vacant, is surrounded by residential uses and there is no evidence of potential or actual contamination and is therefore unlikely to be contaminated. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP RH have been satisfied.

Conclusion

15. 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.

16. 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.

17. 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

18. The Court orders:

1. The appeal is upheld.

2. Development Consent is granted to DA/56/2023 for the construction of an attached two storey dual occupancy with basement, lifts, retaining walls and Torrens title subdivision into 2 lots at Lot 31 DP 270717 and known as 31 Moses Way, Winston Hills NSW 2153 subject to the conditions of consent at Annexure A.

S Porter

Commissioner of the Court

Annexure A

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Decision last updated: 15 October 2024