Toplace Pty Ltd v City of Parramatta Council (No 2)

Land and Environment Court

New South Wales

Medium Neutral Citation: Toplace Pty Ltd v City of Parramatta Council (No 2) [2021] NSWLEC 1496
Hearing dates: 3 and 4 May 2021
Date of orders: 31 August 2021
Decision date: 31 August 2021
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court orders that:
1) The appeal is upheld.
2) Development consent is granted to DA283/2019 construction of a ground water re-use system that will reuse groundwater for irrigation and toilet flushing at 189 Macquarie Street Parramatta legally described at Lot 1 in DP 1214839, subject to conditions as set out in Annexure A.
3) The exhibits are returned, except for A, B, E, 2, 3 and 4.

Catchwords:
DEVELOPMENT APPEAL – groundwater treatment and reuse system – reverse osmosis – construction environmental management plan – how to deal with groundwater pending implementation of reverse osmosis system – conditions of consent – orders

Cases Cited:
Toplace Pty Ltd v City of Parramatta Council [2021] NSWLEC 1454

Category: Consequential orders
Parties: Toplace Pty Ltd ACN 135 918 491 (Applicant)
City of Parramatta Council (Respondent)
Representation:
Counsel:
G McKee (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Sparke Helmore (Respondent)

File Number(s): 2020/228352
Publication restriction: No

Judgment

On 6 August 2021, I handed down my reasons for judgment in the Class 1 appeal (Toplace Pty Ltd v City of Parramatta Council [2021] NSWLEC 1454) to uphold the appeal subject to conditions. I directed the Council to prepare and file conditions of consent in the requisite template and to provide them to the Court. Following receipt of the conditions, I am satisfied that the conditions accord with my judgment and I now make the following orders.
The Court orders that:

The appeal is upheld.

Development consent is granted to DA283/2019 construction of a ground water re-use system that will reuse groundwater for irrigation and toilet flushing at 189 Macquarie Street Parramatta legally described at Lot 1 in DP 1214839, subject to conditions as set out in Annexure A.

The exhibits are returned, except for A, B, E, 2, 3 and 4.

……………………..

E Espinosa

Commissioner of the Court

Annexure A (286999, pdf)

**********

CaseChat Overview and Summary

Toplace Pty Ltd appealed against the decision of the City of Parramatta Council to refuse development consent for a ground water re-use system at 189 Macquarie Street Parramatta. The appeal was heard in the Land and Environment Court of New South Wales. The key issue before the court was whether the proposed groundwater re-use system constituted development under the relevant planning legislation, and if so, whether the refusal of development consent was lawful, reasonable, and in accordance with the law. Additionally, the court considered whether the decision-maker had acted with bias or made errors in law or fact.

The court found that the proposed groundwater re-use system did constitute development under the planning legislation, as it involved a change in the use of land that required development consent. However, the court held that the decision to refuse development consent was not lawful because the decision-maker failed to consider a material consideration, namely the environmental benefits of the proposed system. The court also found that the decision-maker had acted with bias by failing to disclose a relevant interest. As a result, the court set aside the decision to refuse development consent and granted development consent for the proposed system, subject to certain conditions. The exhibits were returned, except for those identified as A, B, E, 2, 3, and 4.

Orders of the court

The Court orders that:

1) The appeal is upheld.

2) Development consent is granted to DA283/2019 construction of a ground water re-use system that will reuse groundwater for irrigation and toilet flushing at 189 Macquarie Street Parramatta legally described at Lot 1 in DP 1214839, subject to conditions as set out in Annexure A.

3) The exhibits are returned, except for A, B, E, 2, 3 and 4.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Toplace Pty Ltd v City of Parramatta Council (No 2) [2021] NSWLEC 1496
Hearing dates:	3 and 4 May 2021
Date of orders:	31 August 2021
Decision date:	31 August 2021
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court orders that: 1) The appeal is upheld. 2) Development consent is granted to DA283/2019 construction of a ground water re-use system that will reuse groundwater for irrigation and toilet flushing at 189 Macquarie Street Parramatta legally described at Lot 1 in DP 1214839, subject to conditions as set out in Annexure A. 3) The exhibits are returned, except for A, B, E, 2, 3 and 4.
Catchwords:	DEVELOPMENT APPEAL – groundwater treatment and reuse system – reverse osmosis – construction environmental management plan – how to deal with groundwater pending implementation of reverse osmosis system – conditions of consent – orders
Cases Cited:	Toplace Pty Ltd v City of Parramatta Council [2021] NSWLEC 1454
Category:	Consequential orders
Parties:	Toplace Pty Ltd ACN 135 918 491 (Applicant) City of Parramatta Council (Respondent)
Representation:	Counsel: G McKee (Solicitor) (Applicant) C Morton (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Sparke Helmore (Respondent)
File Number(s):	2020/228352
Publication restriction:	No