Powcom Pty Limited v Parramatta City Council

[2020] NSWLEC 1253

Land and Environment Court

New South Wales

Medium Neutral Citation:	Powcom Pty Limited v Parramatta City Council [2020] NSWLEC 1253
Hearing dates:	Conciliation Conferences on 31 October 2019; 10 June 2020
Date of orders:	10 June 2020
Decision date:	15 June 2020
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See orders at [14] below
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55— Remediation of Land
Texts Cited:	Holroyd Development Control Plan 2013
Category:	Principal judgment
Parties:	Powcom Pty Limited (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: N Hammond (Applicant) A Gough (Solicitor) (Respondent)   Solicitors: Greenaway & Tohme (Applicant) Storey & Gough (Respondent)
File Number(s):	2019/63106
Publication restriction:	No

Judgment

1. COMMISSIONER: Powcom Pty Limited (the Applicant) has appealed the deemed refusal by Parramatta City Council (the Respondent) of its development application DA/664/2018 for demolition of existing structures and construction of a four storey boarding house with a single level of basement car parking, and associated landscaping works (the proposed development) at 81 Boundary Road Street, Westmead (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction.

3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court had 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 31 October 2019, and I had presided over that conciliation conference. As part of that conciliation conference I undertook an inspection of the subject site and surrounds.

5. A further conciliation conference under s 34 of the LEC Act was listed for 10 June 2020 and I have also presided over that conciliation conference.

6. At the conciliation conference on 10 June 2020, 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 and granting consent to the Applicant’s modification application, subject to conditions.

7. 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.

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 to be:

1. the Proposed Development, characterised as a four storey boarding house with 25 rooms and a manager’s room, is permissible with consent on the Subject Site, which is zoned R4 High Density Residential;

2. the Proposed Development complies with the 15m height of buildings development standard applicable to the Subject Site under the provisions of cl 4.3 of the Holroyd Local Environmental Plan 2013 (HLEP);

3. the Proposed Development complies with the Floor Space Ratio (FSR) development standard of 1.2:1 applicable to the Subject Site under the provisions of cl 4.4 of HLEP;

4. the Applicant’s development application has considered the matters related to whether the Subject Site is contaminated as required under cl 7(2) of the State Environmental Planning Policy No 55—Remediation of Land;

5. the Applicant’s development application has considered the matters related to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), including the provisions of:

1. Clause 30(1) concerning standards for boarding houses, and I am satisfied that the Proposed Development is compliant with all the standards in that clause;

2. Clause 30A of SEPP ARH, concerning the compatibility of the Proposed Development with the character of the local area, and I am satisfied that the design of the Proposed Development is compatible with the character of the local area;

9. In addition to the matters identified above at [8], I am satisfied that:

1. the Applicant’s Development Application has been made with owner’s consent; and

2. the provisions of Section 1.4 of Part E of the Holroyd Development Control Plan 2013 (concerning the notification of development applications for boarding house developments within residential zones.

10. The Respondent also advised that it was satisfied that the matters raised by objectors in response to notification of the Applicant’s Proposed Development, as well as during the on-site view in October 2019, had been satisfactorily resolved by the Applicant’s amended plans.

11. Having considered the advice of the Parties, provided above at [8], and the matters identified above at [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act, have been so satisfied.

12. I am further 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.

13. 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.

14. The Court orders:

1. The Applicant is granted leave to rely upon an amended application incorporating the following:

1. Architectural plans and shadow diagrams prepared by Gus Fares Architects numbered A000 - A105, A201, A301 and A401 - A403, Issue E, dated June 2020, referred to in Annexure “A” to this judgment;

2. Stormwater plans prepared by Wehbe Consulting, Issue G, dated 9 June 2020 and drawing No.s SW857-1 to SW857-5 referred to in Annexure “A” to this judgment.

3. BASIX Certificate No. 1084267M_02 dated 9 June 2020 referred to in Annexure “A” to this judgment.

4. Landscape Plan prepared by Vision Dynamic, Revision G and drawing No. 14224 DA1 referred to in Annexure “A” to this judgment.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979.

3. The appeal in proceedings 2019/63106 is upheld.

4. Development application DA/664/2018 for demolition of existing structures and construction of a boarding house comprising 25 rooms and a manager’s room with a single level of basement parking at 81 Boundary Road, Granville, is approved, subject to the conditions in Annexure “A”.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (313918, pdf)

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Decision last updated: 16 June 2020