Sarakh Pty Limited v City of Parramatta Council

[2020] NSWLEC 1371

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sarakh Pty Limited v City of Parramatta Council [2020] NSWLEC 1371

Hearing dates:

Conciliation conference on 3 and 4 August 2020

Date of orders:

18 August 2020

Decision date:

18 August 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to rely upon the amended plans and documents listed in Condition 1 (under the heading “General Matters”) of the Conditions of Consent.

(2) The appeal is upheld.

(3) Development Application No. 793/2018 seeking consent for demolition of existing structures and construction of a two-storey dual occupancy with detached outbuildings at the property known as 27 Bettington Rd, Oatlands being Lot 2 in DP 135971, is approved subject to conditions annexed hereto and marked A.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy – stormwater – character – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Parramatta (former the Hills) Local Environmental Plan 2012

Texts Cited:

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

Sarakh Pty Limited (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
J Walker (Respondent)

Solicitors:
David Legal (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

19/383449

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 793/2018 by the City of Parramatta Council (hereafter the Council) for the demolition of existing structures and construction of a two storey dual occupancy with detached outbuildings on Lot 2 DP 135971, also known as 27 Bettington Road, Oatlands (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which commenced onsite and was held on 3 August 2020. I presided over the conciliation conference. There were no objectors at this conciliation.

4. Prior to this conciliation conference, and following expert discussion, the applicant sought to amend the DA’s supporting plans and provide relevant documentation to be relied upon in the granting of consent to the DA under appeal.

5. Based on these amended plans, together with the DA’s supporting documents 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 issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 793/2018 with conditions.

6. 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(1) of the EPA Act after being satisfied, pursuant to s 4.15(1), to grant consent to DA 793/2018 with conditions, as described in Annexure A.

7. The parties identified the jurisdictional prerequisites of particular relevance to the Court in these proceedings, as consistency with the Parramatta (former the Hills) Local Environmental Plan 2012 (PLEP) and The Hills Development Control Plan 2012 (HDCP).

8. The site is located within the R2 Low Density Residential Zone, as described in the PLEP. The proposed development is permissible in the zone. The objectives of the zone are satisfied. The parties agree that the relevant provisions of the PLEP are addressed to their satisfaction by the supporting documents, conditions of consent and amended plans to the DA under this appeal. The proposed development satisfies the numeric requirements and relevant objectives of the PLEP.

9. The parties agree that the requirements of the HDCP are complied with, based on the amended plans and conditions of consent. The proposed development was publicly notified in accordance with the HDCP. Following the notification period, no submissions were received by Council.

10. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls specified in the HDCP are achieved to the satisfaction of the parties. The parties agree that the amended design, as shown in the plans, addresses the character contentions, particularly as they relate to streetscape and landscaping. The parties also agree that the contention that relates to stormwater is resolved by the amended plans, deferred commencement condition requiring an easement for discharge and the general conditions of consent.

11. Although not a contention, the parties agree that the existing sewer pipe that dissects the site and is an asset of Sydney Water is sufficiently protected by the amended plans, deferred commencement conditions and general conditions of consent.

12. The parties advised the Court that the stormwater and sewer requirements are addressed by the deferred commencement conditions and general conditions of consent in Annexure A. Therefore, pursuant to ss 4.16(3) and 4.17(1) of the EPA Act, the Court could be satisfied that the relevant legislative requirements are addressed.

13. Based on the amended plans and supporting documents to the DA, the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as being resolved to the satisfaction of the parties.

14. The parties advise the Court that there are no jurisdictional impediments to this agreement and that DA 793/2018 should be granted, as it satisfies the considerations of s 4.15(1) of the EPA Act.

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. The Court orders that:

1. Leave is granted to the Applicant to rely upon the amended plans and documents listed in Condition 1 (under the heading “General Matters”) of the Conditions of Consent.

2. The appeal is upheld.

3. Development Application No. 793/2018 seeking consent for demolition of existing structures and construction of a two-storey dual occupancy with detached outbuildings at the property known as 27 Bettington Rd, Oatlands being Lot 2 in DP 135971, is approved subject to conditions annexed hereto and marked A.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (247964, pdf)

Architectural Plans (1039498, pdf)

BASIX Certificate (348422, pdf)

Landscape Plan (787143, pdf)

Stormwater Plans (1812127, pdf)

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Amendments

19 August 2020 - Correction to Respondent in Representation on the coversheet.