Tao v Parramatta City Council

[2020] NSWLEC 1132

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tao v Parramatta City Council [2020] NSWLEC 1132
Hearing dates:	Conciliation conference on 19 February 2020
Date of orders:	19 March 2020
Decision date:	19 March 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See orders at [7]
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Parramatta Local Environmental Plan 2011 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Leo Kit Tao (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: M Hoang (Agent) (Applicant) A Seton (Solicitor) (Respondent)   Solicitors: Marsdens Law Group (Respondent)
File Number(s):	2019/188672
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against City of Parramatta Council’s deemed refusal of Development Application 242/2019 seeking approval for alterations and additions to an existing single storey dwelling house, including demolition of the rear detached garage and construction of a new carport, partial demolition of the rear of the existing dwelling, and construction of rear and side additions. The site is 86 Eastwood Avenue, Epping also known as Lot 1 in DP 128442.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (‘LEC Act’) between the parties, which was held on 19 February 2020. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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’ decision involves the Court exercising the function s 4.16 of the EPA Act to grant consent to the development application. The parties indicate in their signed agreement that there is jurisdiction for the Court to exercise this function. Advice was provided from the parties on how jurisdictional prerequisites of relevance in these proceedings have been satisfied, and I have regard to this advice in drawing my own conclusions, as follows:

5. I accept the advice of the parties that the development application was made with the consent, in writing, of Leo Kit Tao and Tina Poh Yen, being the of the owners the land to which the development application relates (86 Eastwood Avenue, Epping).

1. I note that the applicant has provided BASIX Certificate No. A370685 dated 20 February 2020 in accordance with Schedule 1 of the EPA Act.

2. State Environmental Planning Policy No 55—Remediation of Land (‘SEPP 55’) I note the advice of the parties, and accept given the existing low density residential use of the site, that:

1. In relation to clause 7 of SEPP 55, the land on which the development is proposed to be carried out is not known to be contaminated and is not:

1. land that is within an investigation area, or

2. land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out.

3. In regard to Parramatta Local Environmental Plan 2011 (‘LEP’) I accept the advice of the parties that:

1. The subject site is located within Zone R2 Low Density Residential. Development for the purposes of a “dwelling house” is permitted with consent in Zone R2.

2. The development application meets the applicable development standards and does not require approval of any clause 4.6 variations to development standards contained under the LEP.

3. The Respondent has considered the effect of the proposed development on the heritage significance of the Epping/Eastwood conservation area pursuant to clause 5.10(4) of the LEP, and I have also considered this provision in respect of the proposal.

4. Notification requirements under the EPA Act have been satisfied and all submissions have been taken into consideration. I also have noted the summary of submissions contained in Council’s statement of facts and contentions (filed 16 August 2019) and heard submissions from an adjoining owner during the conciliation conference. I too am satisfied that submissions have been taken into consideration.

5. Suitable conditions of consent are included in Annexure ‘A’ to the agreement.

6. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 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.

7. The Court orders:

1. The Applicant is granted leave to amend Development Application No. 242/2019 and rely upon the following amended plans and documentation:

DRAWING NO.	ISSUE	DOCUMENT NAME	DATED	PREPARED BY
001	E	Site Plan	Cracknell & Lonergan	03/03/2020
403	E	Basement Floor Plan 1:100	Cracknell & Lonergan	03/03/2020
103	E	Basement Floor Plan 1:200	Cracknell & Lonergan	03/03/2020
401	E	Ground Floor Plan 1:100	Cracknell & Lonergan	03/03/2020
101	E	Ground Floor Plan 1:200	Cracknell & Lonergan	03/03/2020
402	E	Roof Plan 1:100	Cracknell & Lonergan	03/03/2020
102	E	Roof Plan 1:200	Cracknell & Lonergan	03/03/2020
301	E	Short & Long Sections	Cracknell & Lonergan	03/03/2020
203	E	East Elevation	Cracknell & Lonergan	03/03/2020
202	E	West Elevation	Cracknell & Lonergan	03/03/2020
201	E	Front & Rear Elevations	Cracknell & Lonergan	03/03/2020
002	E	Survey Plan	Cracknell & Lonergan	03/03/2020
DOCUMENT			DATED	PREPARED BY
BASIX Certificate No. A370685			20/02/20

2. The appeal is upheld.

3. Development Application No. 242/2019 for alterations and additions to an existing single storey dwelling house, including demolition of the rear detached garage and construction of a new carport, partial demolition of the rear of the existing dwelling and construction of rear and side additions on the land at 86 Eastwood Avenue Epping is approved, subject to the Conditions of Consent at Annexure ‘A’.

……………………….

P Walsh

Commissioner of the Court

Annexure A (124 KB)

Plans (1.17 MB)

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