Abi-Khattar v Parramatta City Council

Category: Principal judgment

Parties: John Paul Aki-Khattar (Applicant)
Parramatta City Council (Respondent)

Representation: Counsel:
N Hammond (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
Madison Marcus Law (Applicant)
Sparke Helmore (Respondent)

File Number(s): 2025/178462

Publication restriction: Nil

JUDGMENT

1. COMMISSIONE****R: Development at a property at 40 Greens Avenue, Oatlands is the subject of an appeal brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) following the refusal by the City of Parramatta Council of Modification Application DA/563/2018/G (the Modification Application), that sought to modify development consent DA/563/2018/E granted on 28 January 2021 (the Consent).

2. The development for which the Consent was granted was for demolition of existing structures, tree removal and construction of a two-storey dwelling with inground swimming pool and fencing.

3. The Modification Application, lodged by the Applicant, Mr John Paul Abi-Khattar on 23 September 2024, seeks to regularise works evident on the site for which consent was not granted. Accordingly, an application for a building information certificate, BC/126/2024 lodged 19 July 2024 (the BIC), is also relevant to these proceedings.

4. The works evident on the site that are the subject of the modification application are as follows:

5. Construction of retaining walls to the eastern, western and southern (rear) boundaries of the site.

6. Installation of a timber boundary fence on the retaining walls.

7. Earthworks on the site, including approximately 1.6m of cut and 1.3m of fill towards the rear of the site.

8. Reduced landscaped area.

9. A swimming pool that varies from that approved in terms of its size, height, shape, pool coping and setback from certain boundaries.

10. Changes to stormwater management.

11. On 17 April 2025, the Council refused the Modification Application and the Applicant filed an appeal in Class 1 of the Court’s jurisdiction.

12. On 11 June 2025, the Council refused the BIC.

13. The appeal was listed for mandatory conciliation on 18 September 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act).

14. The conciliation conference then reconvened at Court where without prejudice discussions were held. The Applicant agreed to amend the proposal by way of amended plans and other documents.

15. Accordingly, the parties reached agreement on the matters in contention and a signed agreement was submitted to the Court on 19 September 2025, in accordance with s 34(10) of the LEC Act.

16. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

17. In general terms, the agreement approves the development subject to amended plans and other documents and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

18. 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 modification application, and the discontinuance of the BIC appeal that was given effect by a Notice of Discontinuance filed with the Court on 19 September 2025. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

19. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

Environmental Planning and Assessment Act 1979

14. Section 4.55(2)(a) of the EPA Act enables the Court, as the consent authority, to modify a development consent upon application by the Applicant (or any person entitled to act on the consent) provided the Court is satisfied that the subject development consent, as modified, is “substantially the same” as the originally approved development.

15. The Original Consent approved the demolition of existing structures, tree removal and construction of a two-storey dwelling with inground swimming pool and fencing.

16. I am satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, subject to the amendments agreed between the parties to provide landscape planting and screening to the south west and east of the rear yard.

17. I have also considered the submissions arising from the notification of the Modification Applications in accordance with s 4.55(2)(d) of the EPA Act. The matters set out in the submissions received by the Council are substantially to do with earthworks, stormwater management and visual intrusion. The Council is satisfied that the amendments agreed to by the Applicant reduce the extent of fill adjacent to the rear boundary, resolves the stormwater drainage and softens the visual appearance of the development.

Environmental Planning and Assessment Regulation 2021

18. The parties agree that the relevant provisions of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) have been considered and are satisfactorily addressed.

19. The Modification Applications have been made by the owners of the site, who provide written consent, supported by a letter of agency confirming the consent of the original Applicant, Think Planners PTY LTD, to an owner of the property, Mr John-Paul Abi-Khattar being nominated as the Applicant in the proceedings.

Matters as are relevant under s 4.15 of the EPA Act

20. I have also taken into consideration the following matters that are referred to in s 4.15(1) as relevant to the development the subject of the application, in accordance with s 4.55(3) of the EPA Act.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. That said, the parties agree the site is not within the Foreshores and Waterways Area, is not a strategic foreshore site, a heritage item or land within a wetlands protection area.

22. Section 6.6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

23. On the basis of the Stormwater Concept Plans prepared by Telford Civil dated 18 September 2025 (amended Stormwater Plans) and the agreed conditions of consent, I accept that the stormwater will be directed to an absorption trench located within the rear yard. As such, all stormwater is to be accommodated on site and so I am satisfied that the impact on water flow in a natural waterbody will be minimised by effectively retaining stormwater on the subject site, and so that any water entering a natural water body will be as close as possible to neutral or beneficial.

24. For similar reasons I have also considered those matters at s 6.7(1) of the Biodiversity SEPP and am satisfied there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation, and result in no adverse impact on aquatic reserves, or in terms of erosion.

25. I note that the site is not identified as flood liable land to which s 6.8 of the SEPP is directed and so does not apply. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

Parramatta Local Environmental Plan 2023

26. The site is located in an area designated R2 Low Density Residential under the Parramatta Local Environmental Plan 2023 (PLEP), in which the proposed development is permitted with consent, where consistent with the following objectives for development in the R2 zone:

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

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

• To maintain the low density residential character of the area.

• To ensure non-residential land uses are carried out in a way that minimises impacts on the amenity of a low density residential environment.

• To provide a range of community facilities that serve the needs of people who live in, work in and visit the area.

• To protect and enhance tree canopy, existing vegetation and other natural features

27. A Flood Impact Assessment prepared by Telford Civil, dated July 2025, concludes that the site is not affected in the 1% Annual Exceedance Probability (AEP) and that flood levels in adjacent areas are acceptable. As such, the parties agree that the site is not flood affected in terms set out at cl 5.21 of the PLEP.

28. On the basis of the reduction in fill shown adjacent to the rear boundary, and the erection of retaining walls within the subject site, when read in conjunction with the additional drainage depicted in the Stormwater Plans and the Virgin Excavated Natural Material report prepared by GCA dated 7 November 2019, I have considered those matters at cl 6.2(3) of the PLEP required to be considered. I conclude the earthworks now proposed are acceptable.

29. For reasons identical to those at [23], and because of the reduction in impervious surfaces proposed to the south of the swimming pool, I am also satisfied that the stormwater management system depicted in the Stormwater Plans is designed to maximum the use of water permeable surfaces and includes on site retention of stormwater, and so avoids significant adverse impacts of stormwater runoff on adjoining properties, in accordance with cl 6.5(2) of the PLEP.

Conclusion

30. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

31. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

32. The Court notes that:

33. The Respondent has agreed to an amendment to Modification Application No. DA/563/2018/G pursuant to section 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) to rely on the following plans and reports:

(a) Landscape Plans prepared by Andrew Murphy Design dated 17 September 2025, described as follows:

| DWG No. | Rev | Date | | G01 – Landscape Plan | G | 17 September 2025 | | G02 – Landscape Area Calculation Plan | G | 17 September 2025 |

(b) Stormwater Concept Plans prepared by Telford Civil, described as follows:

| DWG No. | Rev | Date | | 000 – Cover Sheet Plan | D | 18 September 2025 | | 101 – Stormwater Concept Plan Lower Ground Level | D | 18 September 2025 | | 102 – Stormwater Concept Plan | D | 18 September 2025 | | 103 – Absorption Trench Details and Calculations | D | 18 September 2025 | | 104 – Catchment and Roof Plan | D | 18 September 2025 | | 105 – Miscellaneous Details Sheet | D | 18 September 2025 |

(c) Structural Certificate prepared by Zait Engineering dated 4 April 2025. (d) Landowner’s consent letter dated 10 July 2024. (e) Letter of agency signed by Think Planners Pty Limited dated 17 September 2025.

Orders

33. The Court orders that:

34. The appeal is upheld.

35. Development Consent No. DA/563/2018/E is modified in the terms set out in Annexure ‘A’.

36. Development Consent No. DA/563/2018/G, as modified by the Court, is set out in Annexure ‘B’.

T Horton

Commissioner of the Court

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Annexure A (114 KB, pdf)

Annexure B (278 KB, pdf)