Zedcorp Pty Ltd v Parramatta City Council

[2019] NSWLEC 1010

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zedcorp Pty Ltd v Parramatta City Council [2019] NSWLEC 1010
Hearing dates:	Conciliation conference on 14 December 2018
Date of orders:	16 January 2019
Decision date:	16 January 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See orders at [18] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Texts Cited:	Apartment Design Guide Holroyd Development Control Plan 2013
Category:	Principal judgment
Parties:	Zedcorp Pty Ltd (Applicant) Parramatta City Council (Respondent)
Representation:	Solicitors: K Marginson, Mills Oakley (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s):	2018/69362
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Zedcorp Pty Ltd (the Applicant) lodged under then s 97(1), now s 8.7(1), of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Parramatta City Council (the Council) of development application DA 1254/2016 (the application).

2. The application sought consent under the EPA Act for the demolition of existing structures, tree removal and construction of a part 4, part 5 storey residential flat building (RFB) comprising apartments above basement parking at Lots 5A, 5B and 6A, DP 160801, being 53-57 Railway Street, Granville (the site).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

5. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

6. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met.

7. The Statement of Facts and Contentions (SFC) filed with the Court by the Council indicates that the site is located within a residential area characterised by a diversity of dwelling densities and that the site is zoned R4 High Density pursuant to the Holroyd Local Environmental Plan 2013 (the LEP). The development is permissible with consent in that zone.

8. The development complies with the maximum height of 15m and maximum floor space ratio (FSR) of 1.2:1 permissible for the site under cll 4.3 and 4.4 of the LEP respectively.

9. The Council contended that the application the subject of the appeal, and prior to being amended as a result of conciliation, did not comply with the FSR control based on the calculation of floor space undertaken by the Council. This contention was subsequently resolved with revisions to the design of the development to reflect an agreed and reduced floor space which met the FSR control.

10. Notwithstanding the development complied with the LEP height control, it did not meet the maximum number of storeys (being 4) under the Holroyd Development Control Plan 2013 (the DCP) being partially 5 storeys. However, on merit, the Council was satisfied that the amended design was consistent with the existing and desired future character of the area and therefore met the DCP height objectives, particularly having regard to the site’s location at the corner of Railway Street and Marsden Street, and the increased setback and treatment of the fifth storey.

11. The provision of land to Council at no cost by the applicant for the widening of both adjoining streets as required by the DCP is also a condition of consent as is the requirement to protect trees on neighbouring properties.

12. The Council was satisfied that the amended application arising from conciliation addressed the original contentions in terms of the applicable DCP controls and the controls for RFBs found in State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, including the associated Apartment Design Guide.

13. The relevant controls relate to streetscape character, the density of development and unit mix, setbacks, communal open space, site cover, and building separation to ensure visual privacy for future occupants.

14. The amended design also addresses ground floor apartment design and amenity concerns raised by the Council and provides the required amount of car and bicycle parking.

15. Finally, relevant issues raised in public submissions have been addressed in particular having regard to impacts on neighbours.

16. In summary, the application as lodged with the Council proposed 22 apartments with a proposed FSR of 1.29:1. The application as amended during conciliation and the subject of the agreement has reduced the number of apartments to 21 and the FSR to 1.19:1. The overall height of the development has also been reduced.

17. A Certificate has been provided with the agreement demonstrating the development’s compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Agreed consent conditions require compliance with this Certificate.

18. Accordingly, the Court orders that:

1. The applicant is granted leave to rely on the amended plans (as referred to in condition 1 of Annexure “A”) for the purpose of the development application.

2. The applicant is to pay the respondent’s costs thrown away as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Development application DA1254/2016 seeking consent for demolition of existing structures, tree removal, and construction of a residential flat building at 53-57 Railway Street, Granville is approved subject to the conditions contained in Annexure “A”.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A

Decision last updated: 17 January 2019