Railway 51 Pty Ltd v City of Parramatta Council

[2023] NSWLEC 1745

Land and Environment Court

New South Wales

Medium Neutral Citation:

Railway 51 Pty Ltd v City of Parramatta Council [2023] NSWLEC 1745

Hearing dates:

Conciliation conference held on 1 December 2023

Date of orders:

07 December 2023

Decision date:

07 December 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application 880/2021, which seeks the demolition of existing structures, earthworks, and construction of a part four-storey, part five-storey residential flat building with basement car parking for 4 residential units on Lot A Deposited Plan 324641, also known as 51 Railway Street, Granville, is determined by the grant of consent, subject to the conditions in Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Holroyd Local Environmental Plan 2013, cll 2.3, 5.21

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2

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

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

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

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

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

Holroyd Development Control Plan 2013

Category:

Principal judgment

Parties:

Railway 51 Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
I Lacy (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2023/87203

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application 880/2021 (the DA) by the City of Parramatta Council (the Council), which as amended, seeks demolition of existing structures, earthworks, and construction of a part four-storey, part five-storey residential flat building with basement car parking, containing four residential units and landscaping on Lot A Deposited Plan 324641, also known as 51 Railway Street, Granville (the site).

Background

2. The DA was lodged with Council on 22 September 2021. The original DA was notified to residents, with no submissions received, and was also referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The DA was submitted to the Parramatta Local Planning Panel, who determined on 17 August 2022 to refuse the DA. The Council issued the notice of determination to refuse the DA on 29 September 2022. The Applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and held before me as Duty Commissioner.

5. Prior to the conciliation, the Council agreed for the Applicant to amend the plans and documents that support the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

6. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered in Council’s merit assessment. The agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application 880/2021, with conditions. The Council has delegation to enter into the agreement.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to Development Application 880/2021, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically considered and are addressed:

1. Holroyd Local Environmental Plan 2013 (HLEP):

1. Pursuant to cl 2.3 of the HLEP, the proposed residential development is situated over land zoned R4 High Density Residential. The proposed development, as described to the Court, is permissible with consent. The amended DA addresses all the relevant objectives, aims, standards and requirements of the HLEP.

2. The site has been mapped as being affected by flooding, pursuant to cl 5.21 of the HLEP. The amended DA is supported by a Flood Risk Management Plan and Flood Analysis, prepared by Telford Civil Consulting Pty Ltd, dated August 2021 and 4 September 2023, respectively. The amended DA has considered and addresses flooding relating to the site.

2. State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development (SEPP 65):

1. The DA proposes development for residential apartments, that engages consideration of the relevant provisions of SEPP 65.

2. Pursuant to cl 28(2)(a) of SEPP 65, the DA was submitted to Council’s design excellence review panel on 14 October 2021. The DA and amended DA have considered the review of the panel. The issues raised by the Design Panel, as described in Council’s Assessment Report, dated 14 July 2022 have been considered and addressed in the amended DA.

3. Pursuant to cl 28(2)(b) of SEPP 65, the amended DA relies on a SEPP 65 Design Verification Statement, prepared by IDA Design Group, dated 4 September 2023. The design quality principles established in SEPP 65 are stated to have been considered and are addressed by the amended design.

4. Pursuant to cl 28(2)(c) of SEPP 65, the compliance table prepared by Brosnan & Moore, dated 4 December 2023, considers the requirements described in the Apartment Design Guide 2015. The relevant considerations are deemed to comply or have merit.

5. Pursuant to cl 30(2)(a) of the SEPP 65, the Council is satisfied the proposed development has had regard and demonstrates design quality principles.

3. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):

1. The site is adjacent to the Western Freeway (M4 motorway), a classified road, engaging ss 2.119 and 2.120 of the SEPP Infrastructure.

2. The amended DA is supported by an Acoustic Design Report, prepared by Wongala Consulting Engineers, dated 4 September 2023.

4. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The site is located within the Sydney Harbour catchment, engaging Pt 6.2 of the SEPP Biodiversity.

2. The amended DA is supported by a Statement of Environmental Effects, prepared by Specialist Town Planning Services, dated September 2021, and a Flood Analysis, prepared by Telford Civil Engineers, dated 4 September 2023. There is no assessed adverse environmental impact resulting from the proposed development.

5. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the existing use of the site as residential and documents that support the DA, the Council has appropriately considered that the site is not contaminated, which together with the agreed conditions of consent to address any unexpected finds, satisfy the relevant requirements of s 4.6.

2. The DA is supported by a Preliminary Site Investigation, prepared by Geotechnical Consultants Australia Pty Ltd, dated 18 May 2021.

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

1. A BASIX Certificate (1217303_02), issued on 5 September 2023 is relevant to the proposed development, as amended, and is identified in the conditions of consent.

7. Holroyd Development Control Plan 2013(HDCP):

1. The original DA was publicly notified in accordance with the HDCP, with no submissions received. The relevant requirements of the HDCP have been considered in Council’s merit assessment and are generally complied with, based on the amended plans and supporting documents to the amended DA, and as described in the agreed conditions of consent.

9. Pursuant to s 23 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowner.

Grant of consent

10. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application 880/2021 can be granted consent.

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 notes that:

1. City of Parramatta Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application 880/2021 as follows:

No.	Document	Date
1.	Schedule of Amendments prepared by IDA Design Group	30 August 2023
2.	Amended Architectural Plans prepared by IDA Design Group	29 August 2023
3.	Amended Landscape Plans prepared by Vision Dynamics Pty Ltd	6 September 2023
4.	Stormwater Checklist and Amended Stormwater Plan (Revision B) prepared by Telford Civil Engineers	4 September 2023
5.	Addendum to Statement of Environmental Effects prepared by Brosnan & Moore	6 September 2023
6.	Amended Design Verification Statement prepared by IDA Design Group	September 2023
7.	Flood Analysis prepared by Telford Civil Engineers	4 September 2023
8.	Acoustic Design Report prepared by Wongala Consulting Engineers	4 September 2023
9.	Amended BASIX Certificate prepared by Taylor Smith Consulting	5 September 2023
10.	Amended Access Report prepared by Vista Access Architects	16 October 2023
11.	ADG Compliance Table prepared by Brosnan & Moore	4 December 2023

2. The Applicant has filed the amendments to the Development Application 880/2021 with the Court on 24 November 2023 and 4 December 2023.

15. The Court orders that:

1. The appeal is upheld.

2. Development Application 880/2021, which seeks the demolition of existing structures, earthworks, and construction of a part four-storey, part five-storey residential flat building with basement car parking for 4 residential units on Lot A Deposited Plan 324641, also known as 51 Railway Street, Granville, is determined by the grant of consent, subject to the conditions in Annexure A.

Sarah Bish

Commissioner of the Court

87203.23 Annexure A

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Decision last updated: 07 December 2023