Toplace Pty Ltd v City of Parramatta Council

[2020] NSWLEC 1617

Land and Environment Court

New South Wales

Medium Neutral Citation:

Toplace Pty Ltd v City of Parramatta Council [2020] NSWLEC 1617

Hearing dates:

Conciliation conference on 4 and 25 November 2020, final agreement filed 20 November 2020

Date of orders:

8 December 2020

Decision date:

08 December 2020

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Modification Application DA/852/2013/B for the property at 189 Macquarie Street, Parramatta, NSW is approved subject to the conditions set out in Annexure A to this agreement.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Category:

Principal judgment

Parties:

Toplace Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2020/249792

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the imposition of two conditions of consent accompanying Modification Application DA/852/2013/B (the modification). In turn, the modification was required to satisfy conditions of consent imposed on the parent development consent at 189 Macquarie Street, Parramatta (the site), and was approved by the City of Parramatta Council (Council).

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 4 and 25 November 2020. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent subject to amended conditions of consent.

5. The parent development consent, DA/852/2013, is for the construction of 10 storeys of car parking, including 6 levels above ground, 24 storeys of residential uses containing 425 units, and ground level retail uses on the site. Consent was granted on 15 April 2015 by the Sydney West Joint Regional Planning Panel.

6. On 13 September 2019, Council approved DA252/2019 for the subdivision of the site into 5 stratum allotments in part to allow definition of a component of public car parking.

7. Condition 14 of Development Consent DA252/2019 had the effect of requiring lodgement of a Modification Application to confirm detailed aspects of the provision of car parking.

8. On 23 July 2020, the modification required by condition 14 of Development Consent DA252/2019 was approved by Council. As part of the conditions of consent, conditions 10A and 56(d) were imposed.

9. Conditions 10A and part of 56(d), in general terms, relate to traffic management during construction and were provided to Council by Transport for NSW during the referral process associated with assessment of the modification.

10. With the agreement of the parties, Council has provided correspondence received from solicitors representing Transport for NSW, dated 2 November 2020. I am satisfied that Transport for NSW no longer seeks to press the imposition of conditions 10A and part of 56(d).

11. 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 under s 4.16 of the EPA Act to grant consent to the development application.

12. The parties agree, and I am satisfied, there is no legal reason conditions 10A and the relevant part of 56(d) should not be deleted and the amended consent issued.

13. Having considered any jurisdictional requirements and forming the necessary view required by s 34(3) of the LEC Act, I therefore find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

Orders

14. The Court orders that:

1. The appeal is upheld.

2. Modification Application DA/852/2013/B for the property at 189 Macquarie Street, Parramatta, NSW is approved subject to the conditions set out in Annexure A to this agreement.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (372470, pdf)

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