Sixjay Holdings Pty Ltd v City of Parramatta Council

[2021] NSWLEC 1168

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sixjay Holdings Pty Ltd v City of Parramatta Council [2021] NSWLEC 1168

Hearing dates:

Conciliation conference on 26 March 2021

Date of orders:

08 April 2021

Decision date:

08 April 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The Appeal is upheld.

(2)   Development Application DA 16/2020 for construction of 3 x two-storey dwelling houses on three separate Torrens Title allotments, including landscaping and engineering works on land legally described as Lots 1, 2 and 3 in DP 1235374 known as 147A, 147B & 147C Ray Road, Epping, NSW is approved subject to the conditions set out in Annexure “A” to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house development – flood affected site – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Hornsby Local Environmental Plan 2013

Land and Environment Court Act 1979

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

State Environmental Planning Policy No 55—Remediation of Land

Category:

Principal judgment

Parties:

Sixjay Holdings Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
L Newcombe (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Storey & Gough (Respondent)

File Number(s):

2020/81438

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court by Sixjay Holdings Pty Ltd (the Applicant) under s 8.7 of the Environmental Planning and Assessment Act 1979 against the refusal by City of Parramatta Council (the Respondent) of Development Application No. DA16/2020 seeking consent for three dwellings with one dwelling having a secondary dwelling on three newly created lots at Lots 1, 2 and 3 in DP 1235374, otherwise known as 147A, 147B and 147C Ray Road, Epping (the site).

2. The appeal was originally listed for hearing before me on 26 March 2021. However, on the eve of the hearing, the parties by consent sought for the matter to be re-allocated to me under s 34 of the Land and Environment Court Act 1979 (LEC Act) on the basis that parties had reached agreement, under s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that was acceptable to the parties.

3. A signed agreement prepared in accordance with s 34(10) of the LEC Act was subsequently filed with the Court on 25 March 2021.

4. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

5. 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. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [9].

6. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:

1. The site is located within the R2 Low Density Residential zone identified in the Hornsby Local Environmental Plan 2013 (HLEP) in which dwelling houses are permitted with consent, and wherein the objectives of the R2 zone are in the following terms:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

2. I am satisfied that the earthworks on the site are not the subject of this application, but of a prior consent for subdivision works and so the provisions of cl 6.2 of the HLEP are otherwise addressed.

3. The site is flood affected, and the provisions of cl 6.3 of the HLEP apply. On the basis of the Overland Flow Path Plan, (Drawing No’s. C300.01, C302.01 & C302.02), dated 16 September 2020, prepared by Engineering Studio, and conditions proposed in the conditions of consent requiring the creation of a floodway restriction, and preparation of a flood evacuation report, I am satisfied that the proposed development addresses those matters at cl 6.3(3) of the HLEP.

4. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. The report prepared by Construction Sciences dated 23 July 2020 identifies asbestos present on the site, which the Supplementary Asbestos Assessment also prepared by Construction Sciences dated 12 August 2020 concludes is likely to pose an unacceptable human health risk. However, on the basis of the following, I am satisfied that the land has been remediated and is suitable for its intended use:

• Stage 1 Preliminary and Stage 2 Detailed Site Investigation Report, prepared by Construction Sciences dated 14 July 2020.

• Remediation Action Plan, prepared by Construction Sciences dated 20 August 2020.

• Site Remediation and Validation Report, prepared by Construction Sciences dated 17 November 2020.

5. Finally, I am satisfied that the application is accompanied by the following BASIX certificates prepared by Energi Thermal Assessors Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000:

• Certificate No 1170285S dated 21 January 2021, in respect of No 147A Ray Road.

• Certificate No 1055148S_03 dated 29 October 2019, in respect of No 147B Ray Road.

• Certificate No 1055278S_02 dated 29 October 2019, in respect of No 147C Ray Road.

7. 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.

8. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders

9. The Court orders that:

1. The Appeal is upheld.

2. Development Application DA 16/2020 for construction of 3 x two-storey dwelling houses on three separate Torrens Title allotments, including landscaping and engineering works on land legally described as Lots 1, 2 and 3 in DP 1235374 known as 147A, 147B & 147C Ray Road, Epping, NSW is approved subject to the conditions set out in Annexure “A” to this agreement.

……………………

T Horton

Commissioner of the Court

Annexure A (283801, pdf)

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Decision last updated: 08 April 2021