Young v Parramatta City Council [No. 3]

[2003] NSWLEC 73

>

Land and Environment Court

of New South Wales

CITATION:	Young v Parramatta City Council [No. 3] [2003] NSWLEC 73
PARTIES:	APPLICANT: Greg Young RESPONDENT: Parramatta City Council
FILE NUMBER(S):	(1)0279 of 2002
CORAM:	Lloyd J
KEY ISSUES:	Question of Law :- preliminary question of law - development application - necessity of heritage impact statement - heritage impact statement may be provided by either party
LEGISLATION CITED:	Parramatta Local Environmental Plan 1996 (Heritage and Conservation) - Amendment No. 2 cl 11 and cl 14
CASES CITED:	Young v Parramatta City Council [No. 2] [2002] NSWLEC 240
DATES OF HEARING:	17/12/2002
EX TEMPORE JUDGMENT DATE :	12/17/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr G Young (in person) RESPONDENT: Mr A E Galasso (barrister) SOLICITORS: Storey & Gough

JUDGMENT:

- 3 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(1)0279 of 2002

Lloyd J

17 December 2002

Greg Young

Applicant
v

Parramatta City Council

Respondent

EXTEMPORE JUDGMENT [No. 3]

HIS HONOUR:

1 The applicant has by way of notice of motion raised for preliminary determination a further question arising from Issue 5 in the respondent council’s statement of issues. Issue 5 is as follows:

· Clause 11(6) and Clause 14(2) in that a statement detailing the impact of the proposed development on the Wyralla Avenue Conservation Area had not been provided.

2 The applicant complains that the respondent has failed to provide a statement of heritage significance so that the applicant can comply with the mandatory provisions of cl 11(6)(a) of the Parramatta Local Environmental Plan 1996 (Heritage and Conservation) (“the Parramatta Heritage LEP”).

3 In my previous judgment of 9 October 2002 (Young v Parramatta City Council[No. 2] [2002] NSWLEC 240) I noted that cl 11(4) of the Parramatta Heritage LEP provides that when determining a development application required by this clause, the consent authority must assess the extent to which the carrying out the proposed development would effect the heritage significance of the heritage item or heritage conservation area concerned. Sub-cl 6 of cl 11 provides:

What extra documentation is needed?
(6) when determining whether or not to grant a development consent required by this clause, the consent authority:
(a) must not grant such a consent until it has considered a heritage impact statement which includes an assessment of the matters raised in subclause 5 (a) (i) – (v) or 5 (b) (i) – (vii), as the case may require, and …

4 The respondent council has provided an assessment which forms the basis for this area being included within a heritage conservation area. It describes the area as the Wyralla Avenue Conservation Area. That assessment describes the nature of the existing development. I note that it describes the architectural style as “Edwardian streetscape”. As to its significance, the document states:

This is a consistent streetscape which largely evolved within the space of ten years shortly after this part of the street was subdivided. Almost all houses are intact, and it demonstrates a mode of development in Epping at this time when it evolved as a quality area with many people owning their own homes.

5 As I have said this document was that upon which the council relied for the inclusion of the area within a heritage conservation area under the Parramatta Heritage LEP.

6 In my previous judgment I referred to sub-cl 6 of cl 11 and the need for a heritage impact statement to be provided. The clause is silent as to who provides the document, but it is clear that consideration cannot be given pursuant to sub-cl 4 of cl 11 in the absence of a heritage impact statement referred to in sub-cl 6 of cl 11. As I noted in my previous judgment, although the heritage impact statement may be provided by either the applicant or the council, if the respondent council chooses not to provide it, then it follows the applicant should do so. Absent any heritage impact statement, the development application simply cannot be determined.

7 In my opinion issue 5 in the statement of issues is valid and should remain. As I have said, if the council chooses not to provide the heritage impact statement then the applicant should do so. I do not accept, therefore, that the respondent has failed to do anything that it is required to do for the purpose of having the development application determined and it is open to the applicant to provide the necessary heritage impact statement.

8 It follows that the applicant’s amended notice of motion dated 2 December 2002 should be dismissed.

**********

I hereby certify that the preceding 8 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate