Tohme v City of Parramatta Council

[2025] NSWLEC 1580

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tohme v City of Parramatta Council [2025] NSWLEC 1580

Hearing dates:

Conciliation conference 10 and 17 July 2025

Date of orders:

14 August 2025

Decision date:

14 August 2025

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The Court orders:

(1)   The Applicant is granted leave to amend the Development Application No. DA/22/2024 and rely on the amended plans and documents listed at Condition PA001 of Annexure A, copies of which are to be filed with the Court within 7 days of the date of these Orders.

(2)   The appeal is upheld.

(3)   Development Application No. DA/22/2024 for demolition of existing structures, tree removal and construction of a two storey 76 place centre based child care facility with basement parking for 19 vehicles, at 13 Cowells Lane, Ermington (Lot 1 in DP 30564) as amended, is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

(4) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed sum of $4,526.00 within 28 days of the date of these Orders.

Catchwords:

DEVELOPMENT APPLICATION — centre based child care facility with basement parking — conciliation conference — agreement between the parties — orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979 (NSW), s 34

Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38

Education and Care Services National Regulations 2012

Parramatta Local Environmental Plan 2023, cll 2.3, 4.3, 4.4, 6.1, 6.2, 6.5

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6

Category:

Principal judgment

Parties:

Paul Tohme (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
G Wee (Solicitor) (Applicant)
N Ferguson (Solicitor) (Respondent)

Solicitors:
New South Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2025/101411

Publication restriction:

Nil

JUDGMENT

Introduction

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application No. DA/22/2024 for the demolition of existing structures, tree removal and construction of a two storey 76 place centre based child care facility with basement parking for 19 vehicles as amended on land legally known as Lot 1 in DP30564 being 13 Cowells Lane, Ermington (site).

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference, which I presided over, was held on 10 and 17 July 2025.

Outcome

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was recorded in a signed agreement filed on 17 July 2025.

4. The decision agreed upon is for the grant of development consent for the amended application subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in Condition PA0001 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). The plans and documents comprising the amended application are as set out below and listed under Condition PA001 of the conditions of consent at Annexure A. The parties advised that the application had been amended to address matters raised in the contentions including notably the provision of additional information and changes to the proposed stormwater management plan.

Architectural Drawings (Project No. 10203) prepared by Jansen Designs:

Drawing No.	Issue	Plan Title	Dated
A000	D	Cover page	3.6.2025
A003	D	Demolition Plan	3.6.2025
A004	D	Site Analysis Plan	3.6.2025
A005	D	Basement Plan	3.6.2025
A006	D	Ground Floor Plan	3.6.2025
A007	D	First Floor Plan	3.6.2025
A008	D	Roof Plan	3.6.2025
A009	D	East Elevation (Streetscape) & Section	3.6.2025
A009B	D	Sections	3.6.2025
A010	D	Nort, West & South Elevations	3.6.2025
A017	C	Cut and Fill Diagram	23.5.2025
A019	C	Emergency Evacuation Diagrams	23.5.2025
A020	C	Kitchen Detail Plan	23.5.2025
A021	C	Colour and Finish Schedule	4.7.2025

Civil Drawings/Stormwater (Project No. 22718) prepared by Telford Civil:

Drawing No.	Issue	Plan Title	Dated
000	B	Cover Sheet Plan	26/06/2025
101	B	Stormwater Concept Plan Basement Level Sheet 1 of 2	26/06/2025
102	B	Stormwater Concept Plan Basement Level Sheet 2 of 2	26/06/2025
103	B	Stormwater Concept Plan Ground Floor	26/06/2025
104	B	Stormwater Concept Plan Site Plan	26/06/2025
105	B	Stormwater Concept Hydraulic Analysis Catchment Plan	26/06/2025
106	B	Stormwater Concept Hydraulic Analysis Model and Results	26/06/2025
107	B	Stormwater Concept OSD/WSUD Catchment Plan, Calculation & Long Section	26/06/2025
108	B	Stormwater Concept Plan First Floor	26/06/2025
109	B	Stormwater Concept Plan Roof	26/06/2025
110	B	On-Site Detention Details And Calculations Sheet 1 Of 2	26/06/2025
111	B	On-Site Detention Details And Calculations Sheet 2 Of 2	26/06/2025
112	B	Miscellaneous Details Sheet	26/06/2025

Landscape Drawings prepared by Canvas Landscape Architects:

Drawing/Plan No.	Issue	Plan Title	Dated
DA-101	A	Landscape + Play item layout plan: Ground fr	26/06/2025
DA-L103	A	Landscape Typical details, Proposed Plant Schedule & Maintenance Program	26/06/2025
DA-201	A	Landscape Sections	26/06/2025

Specialist Reports:

Document	Ref No.	Issue	Prepared By	Dated
Waste Management Plan	-	-	Building International Pty Ltd	05.03.2023
Plan of Management	-	D	Janssen Designs	July 2025
Acoustic Report	2022-367	Rev.3	Acoustic, Noise & Vibration Solutions Pty Ltd	18/06/20205
Traffic report	250508.01FA	A	McLaren Traffic Engineering	5/06/2025

6. Under 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

Jurisdictional matters

8. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below.

State Environmental Planning Policy (Resilience and Hazards) 2021

9. The provisions of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) apply to the site. On the basis of the Preliminary Site Investigation report prepared by CEC Geotechnical (14 November 2022) and the Statement of Environmental Effects prepared by Think Planners (21 December 2023) I am satisfied that the requirements of s 4.6 of the RH SEPP have been satisfied and that the site is suitable for the proposed use.

State Environmental Planning Policy (Transport and Infrastructure) 2021

10. Chapter 3 Educational Establishments and Child Care Facilities of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies as the proposal is for the purposes of a childcare facility. It contains specific provisions for centre based child care centres and requires consideration of the Child Care Planning Guidelines. I am satisfied on the basis of the parties’ agreement, the updated plans and the Statement of Environmental Effects prepared by Think Planners (21 December 2023) submitted with the Class 1 Application that the proposal complies with the relevant provisions of the TI SEPP and has due regard to the Guidelines.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

11. Consideration has also been given to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 in respect of the provisions relating to vegetation in non-rural areas. As consent is sought for tree removal the requirements of s 2.6 are satisfied. Further the parties agree that the proposed tree removal is acceptable subject to the proposed landscape planting.

Parramatta Local Environmental Plan 2023

12. The site is zoned R2 Low Density Residential under Parramatta Local Environmental Plan 2023 (PLEP). The proposed development is permissible with consent in the zone, and I am satisfied that adequate regard has been had to the objectives of the zone in accordance with cl 2.3.

13. Clause 4.3 height of buildings applies to the site, permitting a maximum height of 9m. The parties agree that the proposal is compliant having a maximum height of 8.8m.

14. Clause 4.4 floor space ratio (FSR) applies to the site and the parties agree that the amended proposal complies with the maximum FSR having an FSR of 0.49:1 where 0.5:1 is permitted.

15. Clause 6.1 Acid Sulfate Soils (ASS) also applies to the site which is identified as containing Class 5 ASS. The site is not however within 500m of Class 1, 2, 3, or 4 ASS therefore in accordance with the provision no further assessment is required.

16. Further, cl 6.2 Earthworks applies and I accept on the basis of the parties’ agreement that the provisions of the clause have been considered as demonstrated in the Statement of Environmental Effects (Think Planners, 21 December 2023) and having regard to the recommended conditions of consent.

17. I am further satisfied in respect of the requirements of cl 6.5 Stormwater Management on the basis of the parties’ agreement, the amended stormwater concept plans (Telford Civil, 26/06/2025), and relevant conditions of consent.

Other matters

18. The Education and Care Services National Regulations 2012 also apply to the proposal. The parties agree and I accept that, on the basis of the amended plans and the Statement of Environmental Effects prepared by Think Planners (21 December 2023), the relevant requirements have been complied with.

19. The development application is made with the consent of the owner of the site in accordance with s 23 of the EPA Reg.

20. The Respondent notified the original development application between 28 September and 28 October 2022. Fourteen (14) submissions were received in response to the notification. Further at the commencement of the conciliation conference eight (8) submitters addressed the Court in respect of their concerns over the proposed development. In reaching agreement, the parties have advised that consideration has been given to the concerns raised by the submitters.

Conclusion

21. 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)).

22. 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.

Orders

23. The Court orders:

1. The Applicant is granted leave to amend the Development Application No. DA/22/2024 and rely on the amended plans and documents listed at Conditions PA001 of Annexure A, copies of which are to be filed with the Court within 7 days of the date of these Orders.

2. The appeal is upheld.

3. Development Application No. DA/22/2024 for demolition of existing structures, tree removal and construction of a two storey 76 place centre based child care facility with basement parking for 19 vehicles, at 13 Cowells Lane, Ermington (Lot 1 in DP 30564) as amended, is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

4. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed sum of $4,526.00 within 28 days of the date of these Orders.

……………………….

H Miller

Acting Commissioner of the Court

Annexure A (443 KB, pdf)

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Decision last updated: 14 August 2025