Wong v City of Parramatta Council

[2023] NSWLEC 1596

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wong v City of Parramatta Council [2023] NSWLEC 1596

Hearing dates:

Conciliation conference 23 November 2022, 13 September 2023

Date of orders:

11 October 2023

Decision date:

11 October 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA/968/2021 for demolition of the existing structures, tree removal and construction of a five (5) storey boarding house containing twenty four (24) rooms with three (3) levels of basement parking and associated landscaping at 14 Cunningham Street, Telopea (Lot 114 in DP 36691) subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition and boarding house construction – amended plans and information – agreement reached between parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.17, 8.7

Environmental Planning and Assessment Regulation 2000, cl 49

Environmental Planning and Assessment Regulation 2021, Sch 6, s 3

Land and Environment Court Act 1979, s 34

Parramatta Local Environmental Plan 2011, cll 6.2, 8.1

Parramatta Local Environmental Plan 2023, cl 1.8A

State Environmental Planning Policy (Affordable Rental Housing) 2009, Div 3, cll 26, 27, 28, 29, 30

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 10, Pt 6.2, Div 2, ss 6.65, 10.23, 10.24

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, s 6

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

Water Management Act 2000, s 90

Texts Cited:

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

Tham Wan Wong (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
M Harker (Respondent)

Solicitors:
Mills Oakley Lawyers (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2022/229334

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal is brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant, Tham Wan Wong. The Applicant appeals the deemed refusal of their development application DA/968/2021 by the Respondent, City of Parramatta Council. The development application, as amended, seeks consent for a twenty-four room (24) boarding house with at grade and basement parking with landscaping at 14 Cunningham Street, Telopea.

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 23 November 2022. That conciliation conference was terminated, and the matter was listed for hearing.

3. Following the conciliation conference, the parties continued without prejudice discussions. These discussions and the preparation of joint expert reports resulted in the Application proposing amendments to the development application. The development application was amended with the leave of the Court on both 5 July and 8 September 2023.

4. Prior to the hearing, the parties reached an in principle agreement and sought orders for a further conciliation conference. That conciliation conference was listed on 13 September 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to the annexed conditions.

5. 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 form this state of satisfaction on the basis that:

1. The development application was lodged on 19 October 2021. Pursuant to Sch 6 s 3 of the Environmental Planning and Assessment Regulation 2021, the former repealed Environmental Planning and Assessment Regulation 2000 (EPA Regulation) continues to apply. Pursuant to cl 49 of the EPA Regulation the development application is made with the consent of the owner of the land.

2. The development application was advertised and notified to surrounding properties by the Respondent between 28 October and 18 November 2022. Four submissions were received. 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. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either amendment to the application or in the imposition of conditions of consent.

3. The development application is integrated development as it requires approval under the Water Management Act 2000 (WM Act). The development application was referred to Water NSW. Pursuant to s 90(2) of the WM Act, Water NSW issued their General Terms of Approval for water supply work on 5 August 2022, and these have been incorporated into the conditions of consent in Annexure A.

4. Pursuant to s 6 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation the development is not a BASIX affected building.

5. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) applies. As required by s 4.6 of SEPP Resilience and Hazards, consideration has been given as to whether the subject site is contaminated. The site is not identified as contaminated, or likely to be contaminated land. The parties confirm that a review of the site history indicates that it has been used for residential purposes. There is no indication of previous uses that would cause contamination. The development application does not propose a change of use. I accept that the site will be suitable for the proposed development.

6. Chapter 2: Vegetation in non-rural areas in State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the development seeks consent for the removal of five trees.

7. Further, pursuant to SEPP BC, the site is identified as being within the Sydney Harbour Catchment. Part 6.2, Division 2 of the SEPP BC does not apply to the development application due to the savings provision in s 6.65 of the SEPP BC. Chapter 10 of the SEPP BC applies to the proposed development. Matters for consideration are in Division 2. Matters that are relevant for consideration with the proposed development relate to stormwater quality measures and views (ss 10.23(a) and (b), 10.24). The parties agree and I accept that:

1. Whilst the site is not located in the mapped foreshores and waterways area, the design and siting of the building is based on an analysis of the land on which it is to be erected, the adjoining land and the likely future character of the locality.

2. The development will fit in with the existing visual qualities and therefore will maintain, protect and enhance the visual qualities of the harbour and its islands, foreshores and tributaries.

3. The development has minimised adverse impacts on views and vistas to and from public places, landmarks and heritage items and results in the cumulative impact of development on views being minimised.

4. The stormwater experts engaged by the parties agree that development will maintain existing water flow patterns, water quality, hydrological, ecological and geomorphological processes and measures as detailed in the amended Stormwater Plans including the erosion and sediment control measures and onsite detention and filtration measures.

8. State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) applies to the development application. Pursuant to cll 26 and 27 of SEPP ARH, the Site is zoned ‘R4 High Density’ under Parramatta Local Environmental Plan 2011 (LEP 2011) and as such Division 3 – Boarding Houses, applies to the Site and to the development. Pursuant to cl 28 of SEPP ARH, the development may be carried out with consent and is permissible under LEP 2011.

9. The development complies with the must not refuse standards in cl 29, as outlined below:

1. Clause 29(c)(i); the development is on land where residential flat buildings are permitted and does not contain a heritage item. The maximum permitted Floor Space Ratio (FSR) is 2.3:1. The development has a maximum FSR of 1.22:1 and as such does not exceed this standard.

2. Clause 29(2)(a); the building has a maximum height of 18.75m and does not exceed the 22m maximum permitted under the Parramatta LEP 2011, as outlined below.

3. Clause 29(2)(b); the landscape treatment of the front setback area is compatible with the streetscape in which the building is located.

4. Clause 29(2)(c); the communal living room located on level 5 and receives at least 3 hours of direct sunlight between 9am-3pm in mid-winter (refer to DA-420).

5. Clause 29(2)(d)(i); an area of private open space comprising 95m² with minimum dimensions of 4 is provided, in excess of the requirements.

6. Clause 29(2)(d)(ii); the boarding house manager’s room is provided with 9m² of private open space with a minimum dimension of 3m, in excess of the requirements.

7. Clause 29(2)(e)(ii); 15 car parking spaces are provided for 24 boarding rooms, being not more than 0.5 spaces per room.

8. Clause 29(2)(f)(ii); all rooms are for double lodgers and are provided with at least 16m² of internal space.

10. Further, the development application complies with the development standards at cl 30 of SEPP ARH as follows:

1. Clause 30(1)(a); two communal living rooms are provided, in excess of the minimum standard.

2. Clause 30(1)(b); no boarding rooms are provided with a Gross Floor Area in excess of 25m².

3. Clause 30(1)(c); no boarding room is provided with facilities for more than 2 lodgers.

4. Clause 30(1)(d); adequate kitchen and bathroom facilities are provided in each boarding room;

5. Clause 30(1)(e); an on site boarding room is provided for a manager;

6. Clause 30(1)(g); the boarding house is not on land zoned primarily for commercial purposes.

7. Clause 30(1)(h) at least 1 space for a bicycle and 1 space for a motorcycle are provided for every 5 boarding rooms (5 motorbike and 5 bicycle spaces in total).

11. As required by SEPP ARH I have considered whether the development is compatible with the character of the local area.

12. On 2 March 2023, the Parramatta Local Environmental Plan 2023 (LEP 2023) came into force and repealed the Parramatta Local Environmental Plan 2011 (clause 1.8(1) LEP 2023). Pursuant to cl 1.8A of LEP 2023, as the development application had been lodged but not finally determined before 2 March 2023, the provisions of the Parramatta LEP 2011 are saved, and the provisions of the Parramatta LEP 2023 operate as a draft environmental planning instrument.

13. The site is zoned R4 High Density Residential, and the proposed development is permitted with consent in the zone. In determining the development, I have given consideration to the objectives of the zone, which are:

To provide for the housing needs of the community within a high density residential environment.

To provide a variety of housing types within a high density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To provide opportunity for high density residential development close to major transport nodes, services and employment opportunities.

To provide opportunities for people to carry out a reasonable range of activities from their homes if such activities will not adversely affect the amenity of the neighbourhood.

14. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2011.

15. Pursuant to cl 4.3 (Height of buildings) in LEP 2011, the maximum building height for the site is 22m. The highest point of the proposed development is 18.75m and is compliant with the building height control.

16. Pursuant to cl 4.4 (Floor Space Ratio) of LEP 2011 the site has a mapped maximum Floor Space Ratio (FSR) control of 1.7:1. The development achieves the bonus FSR under the SEPP ARH, resulting in a maximum permitted FSR of 2.3:1. The development has a maximum FSR of 1.25:1.

17. Pursuant to cl 6.1 (Acid Sulfate Soils) of LEP 2011, the site is identified as being affected by Class 5 acid sulfate soils. No works are contemplated within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres AHD, as the surrounding area of the site is all also classified as Class 5.

18. As the development application proposes earthworks, cl 6.2 of LEP 2011 applies. The development application is accompanied by civil engineering plans. Further, the development application was the subject of joint conference between stormwater experts. That report considers the relevant matters in cl 6.2 of LEP 2011. On the basis of these documents and the Statement of Environmental Effects, I have given consideration to the matters at cl 6.2(3) of LEP 2011 and I am satisfied that none warrant the refusal of the development application.

19. Clause 6.12 (Design Excellence) of LEP 2011 applies to the development application as it is located in the ‘Telopea Precinct’ on the Key Sites Map in LEP 2011. An assessment against each of the matters in cl 6.12(4) is provided in the Statement of Environmental Effects. Further, the town planning and urban design experts considered the matters at cl 6.12 in their joint report. The experts conclude that any contentions in relation to design excellence are resolved in the amended development application. I accept and adopt the agreed evidence of the experts. Further, having considered the matters in cl 6.12(4), I am satisfied that the proposal exhibits design excellence for the following additional reasons:

1. The site is suitable for the development and is compatible with the existing and proposed uses. The development has an appropriate relationship with other developments on neighbouring sites in terms of separation, setbacks, amenity and urban form.

2. The development is responsive to streetscape constraints and of appropriate bulk, mass and modulation. The street frontage height is appropriate. The development will have a positive impact on the public domain.

3. The development has no unreasonable environmental impacts and achieves the principles of environmentally sustainable design.

4. The proposed pedestrian, cycle, vehicular and service access, circulation and requirements are appropriately addresses for the site location and the proposed use.

20. Clause 6.18 (Development requiring the preparation of a development control plan) of LEP 2011 applies to the as it is located in the ‘Telopea Precinct’ on the Key Sites Map in LEP 2011. Pursuant to cl 6.18(2A)(a), the Parramatta Development Control Plan 2011 (DCP 2011) applies to the site, satisfying the requirement of the provision. Relevantly, Parts 3 and Part 4.39 of DCP 2011 are considered and assessed in the Statement of Environmental Effects.

21. Clause 8.1 of LEP 2011 (Arrangements for designated State public infrastructure) applies to the site. In satisfaction of the requirements of the clause, the Applicant and the Department of Planning and Environment (Department) have entered into a State Voluntary Planning Agreement (SVPA) which has been executed and registered on the title of the land. The Department has confirmed in writing that satisfactory arrangements have been made as a result of the SVPA. The requirements of cl 8.1 of LEP 2011 are satisfied.

22. The annexed conditions include the imposition of a deferred commencement condition. With consideration of the agreed evidence of the expert stormwater engineers and the in principle agreement from the owners of the properties burdened by the easement, I am satisfied it is appropriate to impose this condition pursuant to s 4.17 of the EPA Act.

6. 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)).

7. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any, jurisdictional impediment to the making of these orders. Further, 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.

8. The Court notes that:

1. The City of Parramatta Council, as the relevant consent authority, has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application DA/968/2021 in accordance with the documents below:

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Architectural Plans
General Notes	DA-001	D	7 September 2023	IDA Design Group
BASIX Certificate	DA-002	A	7 September 2023	IDA Design Group
Site Analysis	DA-003	B	7 September 2023	IDA Design Group
Aerial Local View	DA-004	B	7 September 2023	IDA Design Group
Streetscape	DA-005	B	7 September 2023	IDA Design Group
Site Zones – Sheet 1	DA-006	D	7 September 2023	IDA Design Group
Site Zones – Sheet 2	DA-007	D	7 September 2023	IDA Design Group
Demolition Plan	DA-008	A	7 September 2023	IDA Design Group
FSR Plans	DA-009	D	7 September 2023	IDA Design Group
Site Plan	DA-100	D	7 September 2023	IDA Design Group
Basement L2 Plan – Floor Plan	DA-101	D	7 September 2023	IDA Design Group
Basement L1 Plan – Floor Plan	DA-102	D	7 September 2023	IDA Design Group
Lower Ground Floor – Floor Plan	DA-103	E	7 September 2023	IDA Design Group
Ground Floor – Floor Plan	DA-104	E	7 September 2023	IDA Design Group
Level 1 – Floor Plan	DA-105	D	7 September 2023	IDA Design Group
Level 2 – Floor Plan	DA-106	D	7 September 2023	IDA Design Group
Level 3 – Floor Plan	DA-107	D	7 September 2023	IDA Design Group
Level 4 – Floor Plan	DA-108	D	7 September 2023	IDA Design Group
Roof Plan	DA-109	D	7 September 2023	IDA Design Group
East Elevation	DA-200	E	7 September 2023	IDA Design Group
West Elevation	DA-201	D	7 September 2023	IDA Design Group
North Elevation	DA-202	E	7 September 2023	IDA Design Group
South Elevation	DA-203	D	7 September 2023	IDA Design Group
Section Sheet 01	DA-300	D	7 September 2023	IDA Design Group
Section Sheet 02	DA-301	D	7 September 2023	IDA Design Group
Section Sheet 03	DA-302	D	7 September 2023	IDA Design Group
Section Sheet 04	DA-303	D	7 September 2023	IDA Design Group
Section Sheet 05	DA-304	D	7 September 2023	IDA Design Group
Section Sheet 06	DA-305	D	7 September 2023	IDA Design Group
Section Sheet 07	DA-306	E	7 September 2023	IDA Design Group
Section Sheet 08	DA-307	D	7 September 2023	IDA Design Group
Section Sheet 09	DA-308	D	7 September 2023	IDA Design Group
Section Sheet 10	DA-309	-	7 September 2023	IDA Design Group
Adaptation Detail	DA-400	D	7 September 2023	IDA Design Group
Solar Access Diagrams	DA-420	B	7 September 2023	IDA Design Group
Cross Ventilation Diagrams	DA-430	B	7 September 2023	IDA Design Group
Evacuation Plan	DA-470	A	7 September 2023	IDA Design Group
Shadow Diagram – Winter Solstice	DA-480	B	7 September 2023	IDA Design Group
Building Envelope Plan	DA-510	A	7 September 2023	IDA Design Group
Material & Colour Schedule	DA-520	A	7 September 2023	IDA Design Group
Streetscape Analysis	DA-531	D	7 September 2023	IDA Design Group
Amended Landscape Plans
Ground Floor Landscape Plan	L-01	C	11 September 2023	Site Design + Studios
Level 1 & 2 Landscape Plan	L-02	C	11 September 2023	Site Design + Studios
Level 3 & 4 Landscape Plan	L-03	C	11 September 2023	Site Design + Studios
Landscape Area Calculation Plan – Ground Floor Level	L-04	C	11 September 2023	Site Design + Studios
Landscape Area Calculation Plan – Level 1 & 2	L-05	C	11 September 2023	Site Design + Studios
Landscape Area Calculation Plan – Level 3 & 4	L-06	C	11 September 2023	Site Design + Studios
Planting Details	L-07	C	11 September 2023	Site Design + Studios
Specifications	L-08	C	11 September 2023	Site Design + Studios
Reports
Amended Operational Waste Management Plan prepared by Elephants Foot dated 12 September 2023 (Revision E)

9. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA/968/2021 for demolition of the existing structures, tree removal and construction of a five (5) storey boarding house containing twenty four (24) rooms with three (3) levels of basement parking and associated landscaping at 14 Cunningham Street, Telopea (Lot 114 in DP 36691) subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

229334.22 Annexure A

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Decision last updated: 11 October 2023