Shahin Nourozi Pty Ltd v City of Parramatta Council

[2023] NSWLEC 1234

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shahin Nourozi Pty Ltd v City of Parramatta Council [2023] NSWLEC 1234

Hearing dates:

Conciliation conference held on 21 April 2023

Date of orders:

17 May 2023

Decision date:

17 May 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Leave is granted to rely upon the amended plans and documentation listed in the conditions of consent in Annexure A.

(3) Demolition, tree removal and construction of a multi-dwelling housing development comprising 6 x 4 bedroom dwellings (with attic), 5 x 3 bedroom dwellings (with attic), 1 x 3 bedroom dwellings (no attic) and 1 x 2 bedroom dwelling (no attic), including two (2) adaptable dwellings, with over basement parking for 28 vehicles, and strata subdivision on Lot 10 in DP 1223982, Lot 12 DP 794314 and Lot 125 DP 1254, also known as 40 and 42-44 Wetherill Street North, Silverwater, is determined by the grant of consent, subject to the conditions in Annexure A.

(4) The applicant must pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $1,800, within 14 days of the date of these orders.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling housing – conciliation conference conciliation conference – agreement between the parties – orders

Legislation Cited:

Auburn Local Environmental Plan 2010, cll 2.3, 2.7, 4.1, 4.3, 4.4, 5.3, 6.1 and 6.2

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 23, 37

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.121

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

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

Texts Cited:

Auburn Development Control Plan 2010

Category:

Principal judgment

Parties:

Shahin Nourozi Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
S Whealy (Solicitor) (Applicant)
C Nuttal (Solicitor) (Respondent)

Solicitors:
Madison Marcus (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2022/279871

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA/156/2022 (the DA) by the City of Parramatta Council (the Council), which as amended, seeks demolition of existing structures, tree removal and the construction of multi-dwelling housing for 13 dwellings over basement parking with Strata subdivision on Lot 10 in DP 1223982, Lot 12 DP 794314 and Lot 125 DP 1254, also known as 40 and 42-44 Wetherill Street North, Silverwater (the site).

Background

2. The DA was lodged with Council on 2 March 2022. The original DA was notified to residents, with four submissions received. The DA was referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Council refused 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. The Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

5. 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 via Microsoft Teams.

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 been considered. The agreed position of the parties is for the Court to grant consent to the amended Development Application DA/156/2022, 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 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 DA/156/2022, 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 addressed:

1. Auburn Local Environmental Plan 2010 (ALEP):

1. Pursuant to cl 2.3 of the ALEP, the proposed residential development is situated over land zoned R3 Medium Density Residential. The proposed development as described to the Court is permissible with consent. I am satisfied that the amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the ALEP, including cll 2.7, 4.1, 4.3, 4.4, 5.3, 6.1 and 6.2.

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

1. The site is adjacent to the M4 Motorway, therefore s 2.121 of the SEPP Infrastructure is engaged. The DA was referred to Transport for NSW (TfNSW) and received concurrence, with general terms of approval, that are included in the conditions of consent. I am satisfied s 2.121(2) is addressed.

3. 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 supporting documents to the amended DA, the Court is satisfied that the Council has appropriately considered that the site does not require remediation prior to grant of consent, and which together with the agreed conditions of consent to address any unexpected finds, satisfy the relevant requirements of s 4.6.

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

1. A BASIX Certificate (1378310M) issued on 10 March 2023 is relevant to the proposed development, as amended, and is identified in the conditions of consent.

5. Auburn Development Control Plan 2010 (ADCP):

1. The original DA was publicly notified in accordance with the ADCP, with four submissions received. The relevant requirements of the ADCP are generally complied with, based on the amended plans and supporting documents to the amended DA, and 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 landowners.

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 DA/156/2022 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 37(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA/156/2022.

2. The Respondent is to lodge the amended documents on the NSW Planning Portal within 7 days of the making of orders granting consent to the development application.

15. The Court orders that:

1. The appeal is upheld.

2. Leave is granted to rely upon the amended plans and documentation listed in the conditions of consent in Annexure A.

3. Demolition, tree removal and construction of a multi-dwelling housing development comprising 6 x 4 bedroom dwellings (with attic), 5 x 3 bedroom dwellings (with attic), 1 x 3 bedroom dwellings (no attic) and 1 x 2 bedroom dwelling (no attic), including two (2) adaptable dwellings, with over basement parking for 28 vehicles, and strata subdivision on Lot 10 in DP 1223982, Lot 12 DP 794314 and Lot 125 DP 1254, also known as 40 and 42-44 Wetherill Street North, Silverwater, is determined by the grant of consent, subject to the conditions in ‘Annexure A’.

4. The applicant must pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $1,800, within 14 days of the date of these orders.

Sarah Bish

Commissioner of the Court

Annexure A (337730, pdf)

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Decision last updated: 17 May 2023