Parasher v Camden Council

[2024] NSWLEC 1009

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Parasher v Camden Council [2024] NSWLEC 1009

Hearing dates:

Conciliation conference on 22 December 2023

Date of orders:

17 January 2024

Decision date:

17 January 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of amending the development application, in the amount of $10,000 within 42 days of the date of these orders.

(2) The appeal is upheld.

(3) The applicant’s written request pursuant to s 4.6 of Appendix 5 of State Environmental Planning Policy (Precinct – Western Parkland City) 2021, seeking a variation to the development standard for maximum building height prepared by Tudor Planning and Design, dated August 2023 is upheld.

(4) Development consent is granted to development application number DA2022/802/1, for the demolition of existing structures and construction of a four-storey residential flat building comprising 63 apartments and three-storey townhouses comprising 18 units, with basement car parking, landscaping, road construction, drainage works, servicing and associated site works at Lot A in DP336688 and Lot C in DP375004, also known as 47 Ingleburn Road, Leppington, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – multi-dwellings – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 29, 38

Land and Environment Court Act 1979, ss 34, 39

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

State Environmental Planning Policy (Housing) 2021

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 5, ss 2.3, 4.1B, 4.3, 4.6, 5.9, 6.1

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

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 4, 28, 30, Sch 1

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, 2015

Camden Council, Design Review Panel Terms of Reference and Operational Procedures

Category:

Principal judgment

Parties:

Ajay Parasher (First Applicant)
Angela Parasher (Second Applicant)
Camden Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicants)
C Campbell (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicants)
Sparke Helmore (Respondent)

File Number(s):

2023/9916

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of development application No. DA2022/802/1 for the demolition of existing structures and construction of a residential flat building and multi-dwelling housing development consisting of 63 apartments and 17 three storey multi-dwellings with basement parking, associated civil engineering works and landscape works (development application) at Lot A in DP 336688 and Lot C in DP 375004, also known as 47 Ingleburn Road, Leppington (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 has been held on 22 December 2023. I have presided over the conciliation conference.

3. 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 development application DA2022/802/1 in accordance with the documents listed at [27] (amended application). 

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 application and granting development consent to the amended application, subject to conditions of consent.

5. I note that as part of the 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 development application.

10. The development application was lodged to the respondent on 25 August 2022. The respondent notified the development application between 4 September 2022 to 18 September 2022. No submissions were received.

State Environmental Planning Policy (Precincts—Western Parkland City) 2021

11. The site is subject to the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (SEPP Western Parkland City). Appendix 5 Camden Growth Centres Precinct Plan (Precinct Plan) applies.

12. The site is zoned R3 Medium Density Residential under SEPP Western Parkland City. The proposed development is permissible with consent. Pursuant to s 2.3, I have had regard to the objectives of the zone.

13. Section 4.1B Residential density of the Precinct Plan applies to the site. The parties agree and I accept that the amended application is above the minimum density of 25 dwellings per hectare, at 116 dwellings per hectare.

14. Section 4.3 Height of buildings applies to the site, setting a maximum height of 12m. The amended application is 13.98m and is accompanied by an updated s 4.6 written request prepared by Tudor Planning and Design dated 7 August 2023 (written request) to contravene the height development standard. The parties agree and I accept that the written request satisfies the provisions of s 4.6.

15. Section 5.9 Preservation of trees of the Precinct Plan applies to the amended application. With consideration of the Landscape Plans prepared by Studio IZ Pty Ltd dated 7 August 2023, I accept the parties’ agreement that the provisions have been met.

16. Section 6.1 Public Utility Infrastructure of the Precinct Plan applies to the proposed development. The parties agree that water, electricity and sewer is currently available and I accept that the requirements of s 6.1 have been satisfied.

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development

17. Due to the lodgement date of the development application, the now repealed State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development in accordance with Sch 7A(1)(a) and (2) of State Environmental Planning Policy (Housing) 2021.

18. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment (SEPP 65) applies to the proposed development in accordance with cl 4 of SEPP 65.

19. Clauses 28 and 30(2) requires consideration of the design quality of the development in accordance with the design quality principles within Sch 1 and the Apartment Design Guide (ADG). Relevantly, s 29 of the EPA Reg 2021 requires that residential apartment development must be accompanied by a design statement prepared by a qualified designer in relation to the design quality principles within Sch 1 of SEPP 65 and the ADG.

20. Clause 28(2)(a) requires consideration of advice received from the relevant design review panel. The parties advise that the development application was considered by the Camden Design Review Panel (Panel) at the pre-lodgement stage, which I note is consistent with the respondent’s Design Review Panel Terms of Reference and Operational Procedures. Pursuant to s 39(6) of the LEC Act, an appeal can be determined in the absence of the Panel’s advice for the development application.

21. The parties agree and I accept that the amended application meets the provisions of SEPP 65 on the basis of the SEPP 65 Design Quality Principles Statement completed by the nominated qualified designer Georges Jreije (registered architect No 10993) dated 10 January 2024.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The amended application is accompanied by a Preliminary Site Investigation report prepared by NG Child & Associates dated 6 May 2022 which states that the site is not contaminated and is suitable for the proposed development. Accordingly, the parties agree and I am satisfied that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

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

23. The parties agree and I am satisfied that the amended application is accompanied by an amended BASIX Certificate that meets the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

Conclusion

24. 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.

25. 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.

26. 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.

27. The Court notes that the respondent has approved, as the relevant consent authority, under s 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development Application No. DA2022/802/1 to rely upon the following amended plans and documents:

Plan Number and Revision	Plan description	Dated
Architectural Plans prepared by Urban Link
DA-0000, Issue H	Cover	04/08/2023
DA-0001, Issue H	Calculations	04/08/2023
DA-0002, Issue H	Context Plan	04/08/2023
DA-0003, Issue H	Context Analysis	04/08/2023
DA-0004, Issue H	Existing Context with Proposed Road Widening	04/08/2023
DA-0005, Issue H	Net Development Area	04/08/2023
DA-0006, Issue H	Site Analysis	04/08/2023
DA-0007, Issue H	Site Coverage	04/08/2023
DA-0008, Issue H	Site Plan	04/08/2023
DA-0101, Issue H	Ground Floor	04/08/2023
DA-0102, Issue H	Level 1	04/08/2023
DA-0103, Issue H	Level 2	04/08/2023
DA-0104, Issue H	Level 3	04/08/2023
DA-0105, Issue H	Roof Plan	04/08/2023
DA-0106, Issue H	Basement 1	04/08/2023
DA-0201, Issue H	Elevations	04/08/2023
DA-0202, Issue H	Byron Rd Streetscape	04/08/2023
DA-0203, Issue H	Ingleburn Rd Streetscape	04/08/2023
DA-0301, Issue H	Sections	04/08/2023
DA-0302, Issue H	Sections	04/08/2023
DA-901, Issue H	Photomontage 1	04/08/2023
DA-902, Issue H	Photomontage 2	04/08/2023
DA-903, Issue H	Photomontage 3	04/08/2023
DA-904, Issue H	Photomontage 4	04/08/2023
DA-905, Issue H	Photomontage 5	04/08/2023
DA-1401, Issue H	GFA Diagrams	04/08/2023
DA-1402, Issue H	Adaptable Units	04/08/2023
DA-1403, Issue H	Deep Soil	04/08/2023
DA-1404, Issue H	Communal Open Space Ground Floor	04/08/2023
DA-1405, Issue H	COS Solar Access Diagrams	04/08/2023
DA-1406, Issue H	View from the Sun	04/08/2023
DA-1407, Issue H	Shadow Diagrams Winter	04/08/2023
DA-1408, Issue H	Height Plane	04/08/2023
DA-1409, Issue H	Photomontage	04/08/2023
DA-1410, Issue H	Storage – Ground & Level	04/08/2023
DA-1411, Issue H	Storage – Level 02 & Level	04/08/2023
LA-000, Issue D	Cover Sheet	07.08.2023
LA-100, Issue D	Landscape Plan – Sheet 1	07.08.2023
LA-101, Issue D	Landscape Plan – Sheet 2	07.08.2023
LA-102, Issue D	Landscape Plan – Sheet 3	07.08.2023
LA-103, Issue D	Landscape Plan – Sheet 4	07.08.2023
LA-200, Issue D	Landscape Section – Sheet 1	07.08.2023
LA-201, Issue D	Landscape Section – Sheet 2	07.08.2023
LA-300, Issue D	Design Intent Images	07.08.2023
LA-400, Issue D	Planting Palette	07.08.2023
LA-500, Issue D	Details and Specification Notes	07.08.2023
20D11_D2_C000	Cover Sheet, Drawing Schedule, Notes and Locality Sketch	13.07.2023
20D11_D2_C100	Ground Floor Detail Plan – Interim	13.07.2023
20D11_D2_C101	Basement Detail Plan	13.07.2023
20D11_D2_C102	Ground Floor Detail Plan – Future	13.07.2023
20D11_D2_C110	Typical Sections	13.07.2023
20D11_D2_C150	River Mint Avenue Cross Sections	13.07.2023
20D11_D2_C151	River Mint Avenue Long Section	13.07.2023
20D11_D2_C200	Stormwater Miscellaneous Details and Pit Lid Schedule	13.07.2023
20D11_D2_C201	OSD Plan, Sections and Details	13.07.2023
20D11_D2_C202	Water Quality Tank Plan and Details	13.07.2023
20D11_D2_C250	Stormwater Catchment Plan	13.07.2023
20D11_D2_SE01	Sediment and Erosion Control Plan	13.07.2023
20D11_D2_SE02	Sediment and Erosion Control Details	13.07.2023
20D11_D2_BE01	Bulk Earthworks Cut and Fill Plan	13.07.2023
20D11_D2_BE02	Build Earthworks Sections	13.07.2023
513-23-ROAD, Revision [00]	Plan of Subdivision of Lot A DP336688	04.10.2023

Orders:

28. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of amending the development application, in the amount of $10,000 within 42 days of the date of these orders.

2. The appeal is upheld.

3. The applicant’s written request pursuant to s 4.6 of Appendix 5 of State Environmental Planning Policy (Precinct – Western Parkland City) 2021, seeking a variation to the development standard for maximum building height prepared by Tudor Planning and Design, dated August 2023 is upheld.

4. Development consent is granted to development application number DA2022/802/1, for the demolition of existing structures and construction of a four-storey residential flat building comprising 63 apartments and three-storey townhouses comprising 18 units, with basement car parking, landscaping, road construction, drainage works, servicing and associated site works at Lot A in DP336688 and Lot C in DP375004, also known as 47 Ingleburn Road, Leppington, subject to the conditions of consent at Annexure A.

S Porter

Commissioner of the Court

Annexure A

**********

Amendments

23 January 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), correction to typographical error in Annexure A.

Decision last updated: 23 January 2024