Ronsheng Pty Ltd ATF Ronsheng Family Trust v City of Parramatta Council

[2022] NSWLEC 1236

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ronsheng Pty Ltd ATF Ronsheng Family Trust v City of Parramatta Council [2022] NSWLEC 1236

Hearing dates:

Conciliation conference held on 2 and 3 May 2022

Date of orders:

10 May 2022

Decision date:

10 May 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application No. 196/2021 for demolition, tree removal, Torrens Title subdivision into two lots (creating proposed Lots 1 and 2), construction of an attached dual occupancy with associated Torrens Title subdivision (creating proposed Lots 2 and 3) and construction of a dwelling house on proposed Lot 1, with associated drainage/earth/civil works on Lot 73, DP 8514, also known as 93 Midson Road, Epping is determined by the granting of consent subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision – single dwelling and dual occupancy dwelling construction - conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cll 49, 55

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

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

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

Parramatta Local Environmental Plan 2011, cl 2.3

Texts Cited:

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

Ronsheng Pty Ltd ATF Ronsheng Family Trust (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
D. Tyrrell (Solicitor) (Applicant)
L. Raffaele (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Bartier Perry (Respondent)

File Number(s):

2021/361780

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the actual refusal of Development Application (DA) 196/2021 by City of Parramatta Council (hereafter the Council) which seeks demolition of existing structures, removal of trees, Torrens title subdivision into two lots, and then construction of a single dwelling with swimming pool on proposed lot 1, and construction of a attached dual occupancy dwellings with further subdivision on proposed lots 2 and 3, on existing Lot 73, DP 8514, also known as 93 Midson Road, Epping (the site).

Background

2. The DA was submitted to Council on 15 March 2021, and after notification, made consistent with the relevant planning controls, one submission was received during the notification period. The DA was refused by Council on 2 December 2021.

3. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference held by Microsoft Teams on 2 and 3 May 2022, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), without an onsite view at the request of the parties.

5. The Council agreed for the applicant to amend the plans and documents that support and amend the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Based on the amended DA and agreed conditions of consent, the parties reached 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 been satisfied. The decision of the parties is to uphold the appeal and grant consent to DA 196/2021, with conditions.

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 exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA 196/2021, subject to conditions described in Annexure ‘A’.

Jurisdictional prerequisites

8. The DA was submitted with the consent of the site owners, pursuant to cl 49 of the EPA Reg.

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

1. Parramatta Local Environmental Plan 2011 (PLEP):

1. Pursuant to cl 2.3 of the PLEP, the proposed residential development is situated over land zoned R2 Low Density Residential. The proposed development as described to the Court is permissible with consent. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the PLEP.

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

1. Based on the supporting documents to the amended DA, the Court is advised that the site has historically been used for residential purposes, and together with the agreed conditions of consent, addresses the relevant requirements of cl 4.6 of SEPP Resilience.

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

1. BASIX Certificates (1077094S_04 and 1061838M_06) issued on 1 May 2022 are relevant to the proposed development, as amended, and is identified in the conditions of consent and supports the amended DA.

4. Parramatta Development Control Plan 2011 (PDCP):

1. The relevant requirements of the PDCP, and in particular those raised in contention relating to stormwater management, are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The original DA was publicly notified in accordance with the PDCP, and the (resident) submission received has been adequately assessed.

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, including considering the resident submission.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 196/2021 can be determined by the 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 cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application 196/2021.

2. The amended development application documents were lodged on the NSW Planning Portal on 1 May 2022.

3. The amended development application was filed with the Court on 2 May 2022.

15. The Court orders that:

1. The appeal is upheld.

2. Development Application No. 196/2021 for demolition, tree removal, Torrens Title subdivision into two lots (creating proposed Lots 1 and 2), construction of an attached dual occupancy with associated Torrens Title subdivision (creating proposed Lots 2 and 3) and construction of a dwelling house on proposed Lot 1, with associated drainage/earth/civil works on Lot 73, DP 8514, also known as 93 Midson Road, Epping is determined by the granting of consent subject to the conditions set out in Annexure ‘A’.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (497626, pdf)

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Decision last updated: 10 May 2022