TCS Architects Pty Ltd v City of Parramatta Council

[2021] NSWLEC 1766

Land and Environment Court

New South Wales

Medium Neutral Citation:

TCS Architects Pty Ltd v City of Parramatta Council [2021] NSWLEC 1766

Hearing dates:

Conciliation conference 6 December 2021

Date of orders:

14 December 2021

Decision date:

14 December 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The applicant shall pay the respondent’s costs pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 as agreed in the sum of $12,000.00 by 17 December 2021.

(3) Development consent is granted to development application DA/648/2019 for the demolition of existing structures, tree removal and construction of five (5) attached multi-unit dwellings over basement car parking with landscaping at 427 Wentworth Avenue, Toongabbie, being Lot B DP 155593 subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of new multi-unit dwellings – amended plans – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Parramatta Local Environmental Plan 2011, cll 4.3, 4.4

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

State Environmental Planning Policy (Infrastructure) 2007, cll 85, 86, 87

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy (Vegetation In Non-Rural Areas) 2017

Category:

Principal judgment

Parties:

TCS Architects Pty Ltd (First Applicant)
Mayooran Thanabalasingam (Second Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
V Mishra (Solicitor) (Applicants)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Redline Legal (Applicants)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/33839

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicants against the actual refusal of Development Application No. DA/648/2019 by The City of Paramatta Council (the Respondent) on 16 September 2020. The development application seeks consent for the demolition of existing structures, tree removal and construction of five (5) attached multi-unit dwellings over basement carparking with landscaping. The development is proposed at 427 Wentworth Avenue, Toongabbie, being Lot B DP 155593.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 2 September 2021. The parties failed to reach agreement and on 2 September 2021, the conciliation was terminated, and the matter was listed for hearing.

3. By request of the parties the matter was listed for a further s 34 conciliation conference on 6 December 2021. I presided over this conciliation conference. The decision agreed upon by the parties is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. By reference to the development application form filed with the Class 1 Application, Owner’s consent has been given to the Applicant for lodgement of the Development Application.

2. The Parramatta Local Environmental Plan 2011 (LEP 2011) applies to the site. Pursuant to LEP 2011 the site is zoned R3 Medium Density Residential. The proposed development is for the purpose of multi dwelling housing which is a permitted use in the zone. Demolition is permissible pursuant to cl 2.7 of LEP 2011. In determining the development application, I have had regard to the objectives of the zone.

3. Pursuant to cl 4.3 of LEP 2011 the maximum height standard applicable to the site is 11m. The proposed development has a maximum height of 8.7m and is compliant with the development standard.

4. Pursuant to cl 4.4 of LEP 2011 the maximum floor space ratio (FSR) applicable to the site is 0.6:1. The amended plans have an FSR of 0.5:1 and are compliant with the development standard.

5. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. Based on the historical use of the site as residential, it is considered unlikely that the site will require remediation works. However, the Council has identified that the existing building may contain hazardous building materials that may have been used in the construction of the building. Appropriate conditions are contained in Annexure A to address any hazardous materials during demolition and building works, and prior to occupation. Given appropriate conditions of consent have been agreed to by the parties, I accept that the site will be suitable for the proposed development.

6. An amended BASIX certificate dated 26 November 2021 has been filed to reflect the amended architectural plans in satisfaction of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

7. In satisfaction of State Environmental Planning Policy (Vegetation In Non-Rural Areas) 2017 the proposed development will not result in the clearing of native vegetation that exceeds the biodiversity offset scheme threshold pursuant to the Biodiversity Conservation Act 2016.

8. The application is subject to cll 85, 86, and 87 of State Environmental Planning Policy (Infrastructure) 2007. Sydney Trains has been consulted regarding the development and has provided it conditions, which are included in Annexure A.

9. The application was notified in accordance with the relevant development control plan, and I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. 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 the development application DA/648/2019.

2. That the Respondent has uploaded the amended development application on the NSW planning portal on 6 and 9 December 2021.

3. That the applicant filed the amended development application with the Court on 2 and 9 December 2021.

8. The Court orders that:

1. The appeal is upheld.

2. The applicant shall pay the respondent’s costs pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 as agreed in the sum of $12,000.00 by 17 December 2021.

3. Development consent is granted to development application DA/648/2019 for the demolition of existing structures, tree removal and construction of five (5) attached multi-unit dwellings over basement car parking with landscaping at 427 Wentworth Avenue, Toongabbie, being Lot B DP 155593 subject to the conditions in Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (362268, pdf)

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Decision last updated: 14 December 2021