COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 397/2020 for the demolition of existing structures, site preparation works, excavation, tree removal and construction of five 5-8 storey residential flat buildings containing a total of 244 apartments over basement carparking (the proposal) at 2-16 Epping Road and 2-4 Forest Grove, Epping (the site) by the City of Parramatta Council (the Council).
The appeal was subject to conciliation on 15 April 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.
The Second Respondent was joined on 25 May 2021 with leave to lead expert valuation evidence and to make submissions on the valuation and site isolation issues raised.
[2]
The development application is amended
On the first day of the hearing, the applicant, by notice of motion, sought to amend the development application to rely on amended architectural plans by PTW Architects identified as Revision F and amended landscape plans by Studio IZ identified as Revision J.
The Council opposed the amendment of the application. I accepted the applicant's submission that the changes made to the proposal are beneficial and responsive to the Council's contentions and the evidence of the urban design and planning experts.
The Council submitted that the changes to the proposal did not require renotification to objectors because the amended application is substantially the same as the original application and does not cause a greater impact.
I made the following orders on 26 October 2021:
"(1) The applicant is granted leave to amend Development Application No. 397/2020 to rely on the architectural plans by PTW Architects, identified as Revision F (Exhibit A), and landscape plans by Studio IZ, identified as Revision J (Exhibit B).
(2) The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of the City of Parramatta Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant amending Development Application No. 397/2020 lodged with the City of Parramatta Council on 13 July 2020.
(3) The first respondent, the City of Parramatta Council, as the relevant consent authority, is to facilitate the lodging of the amended development application on the NSW planning portal by 28 October 2021 and notify the applicant after it has been lodged.
(4) The applicant is to file a copy of the amended development application by 29 October 2021 after the first respondent has notified the applicant that the amendment has been lodged on the NSW planning portal.
(5) The applicant is to pay the costs of the first respondent thrown away as a result of the amendment, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed."
As the application is integrated development within the meaning of s 4.46 of the EPA Act, the Council was directed to forward the amended application to the relevant agencies.
The urban design and planning experts were directed to joint conference regarding the amended proposal and prepare a supplementary joint report (Ex 10). The experts did so, and the supplementary joint report was filed on 28 October 2021.
During the preparation of the supplementary joint report by the urban design and planning experts, the experts agreed on further amendments to the proposal that would resolve all of the remaining urban design and planning contentions pressed by the Council. Plans reflecting those amendments were attached to Ex 10 as Appendix 3 and identified as the Revision G architectural plans.
The applicant sought leave to amend the development application to rely on the amended architectural plans by PTW Architects identified as Revision G. The Council did not oppose leave being granted, subject to an order pursuant to s 8.15(3) of the EPA Act that the applicant pay the costs of the Council thrown away as a result of the amendment. The Council submitted that the consent authority was not in a position to give instructions to consent to the amendment of the development application pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000.
I made the following orders on 28 October 2021:
"(1) The applicant is granted leave to amend Development Application No. 397/2020 to rely on the architectural plans by PTW Architects, identified as Revision G.
(2) The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of the City of Parramatta Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant amending Development Application No. 397/2020 lodged with the City of Parramatta Council on 13 July 2020.
(3) The applicant is to lodge the amended development application on the NSW planning portal today, 28 October 2021, and is to file a copy of the amended development application after the amendment has been lodged on the NSW planning portal.
(4) The applicant is to pay the costs of the first respondent thrown away as a result of the amendment, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed."
The further amended development application was lodged on the NSW planning portal on 28 October 2021 and following the uploading of the amended application on the NSW planning portal, the applicant filed a copy of the further amended development application.
The Council submitted that the contentions raised in the Amended Statement of Facts and Contentions filed on 25 June 2021 (Ex 1) are satisfactorily addressed by the further amended proposal.
[3]
The site isolation issue raised by the second respondent is addressed by conditions
The second respondent submitted that following the applicant's agreement to conditions 141 and 142 (conditions of consent at Annexure A) creating a right of carriageway in favour of 18 Epping Road and a restrictive covenant over the site of Building D requiring Building D to be setback at least 11m from the western boundary of 18 Epping Road, their concerns were addressed.
[4]
The site and its context
The site is comprised of 11 allotments. The site is irregular with three street frontages, to Epping Road, Blaxland Road and Forest Grove. The site has a total area of 11,450m2.
18 Epping Road is on the south-western corner of Epping Road and Forest Grove and has a shared boundary with the site on its western and southern boundaries. 18 Epping Road contains a single storey dwelling.
The former Epping Bowling Club is to the south and west of the site and contains remains of the bowling greens, a single storey brick and weatherboard club house and two single storey structures. Forest Park is to the south of the site and the former Bowling Club.
Epping Railway Station and Epping Metro are approximately 200m from the site to the north-west.
[5]
The amended proposal
The amended proposal consists of five residential flat buildings, Buildings A to E, five to eight storeys high, over three levels of shared basement carparking, facilities and services. The proposal includes a total of 244 apartment, of which 26 are adaptable dwellings. The carpark is accessed from Forest Grove.
The amended proposal includes an east-west pedestrian link through the site and a north-south link between Buildings B and C intended to continue across the former Bowling Club property.
The amended proposal includes 208 car parking spaces, 76 bicycle parking spaces and four motorcycle parking spaces.
[6]
Planning framework
The site is zoned R4 High Density Residential pursuant to Hornsby Local Environmental Plan 2013 (LEP 2013) and residential flat buildings are a nominate permissible use with consent in the zone. The objectives of the R4 zone, to which regard must be had, 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.
The height of buildings development standards for the site are 26.5m (Buildings A - D) and 17.5m (Building E) (cl 4.3 and Height of Buildings Map Sheet HOB_011 of LEP 2013). The amended proposal complies with the height of buildings development standard.
There is no floor space ratio (FSR) development standard for the site (cl 4.4 and Floor Space Ratio Map Sheet FSR_011 of LEP 2013).
Forest Park is identified as a local heritage item (Heritage Map Sheet HER_001 and item 359, Sch 5 to LEP 2013).
State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applies to the site at cl 4. Both Blaxland and Epping Roads are classified roads, zoned SP2 Infrastructure. The Metro North West line and T9 Northern Railway Line are located on the western side of Blaxland Road on land also zoned SP2. Clauses 87 Impact of rail noise or vibration on non-rail development and 102 Impact of road noise or vibration on non-road development of the Infrastructure SEPP apply.
State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) applies to the site at cl 5. A consent authority must not consent to the carrying out of any development unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state or that it can be made suitable for the purpose for which the development is proposed to be carried out, at cl 7(1).
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the site at cl 5(1) and to the development at cl 4(1). In determining a development application, the consent authority is to take into consideration the design quality of the development when evaluated in accordance with the design quality principles and the Apartment Design Guide (ADG), at cl 28(2).
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 applies to land in the Hornsby local government area and land zoned R4, at cl 5(1).
Hornsby Development Control Plan 2013 (DCP 2013) applies to the site at 1A.1.
[7]
Public submissions
One resident objector gave evidence at the commencement of the hearing onsite. His concerns can be summarised as:
The proposal will result in significant additional traffic in Forest Grove, as the only vehicular entry and exit to the site, and this will compromise pedestrian safety in Forest Grove, including pedestrians crossing Forest Grove to and from the south-eastern corner of Forest Park on their way to and from Epping Station. Forest Grove is already used by locals to bypass the main roads.
The applicant owns the former bowling green, located between the site and Forest Park, and it is currently zoned RE1 Public Recreation under the Local Environmental Plan. The Council should ensure that this land is retained for community use.
[8]
Expert evidence
The applicant relied on the expert evidence of Daniel West (planning), Peter Smith (urban design), Chris White (stormwater), Vittal Boggaram (contamination) and David Lunney (valuation).
The Council relied on the expert evidence of Deborah Laidlaw (planning), Jan McCredie (urban design), Marten Teal (stormwater), Neils Rueegger (biodiversity) and Stuart Pike (contamination).
The second respondent relied on the expert evidence of David Haskew (planning) and Wal Dobrow (valuation).
[9]
Consideration
I am satisfied by the evidence before me and the agreement of the parties that the requirements of cll 87 and 102 of the Infrastructure SEPP are met.
I accept the agreement of the contamination experts that if the site is remediated in accordance with the Remediation Action Plan, the site will be rendered suitable for the proposed residential use. The requisite state of satisfaction required by cl 7 of SEPP 55 is achieved by the agreed evidence including the Site Audit Report (Ex C, tab V) and the Site Audit Statement (Ex C, tab W) and the imposition of conditions 136 and 137 of the conditions of consent (Annexure A) requiring the site to be remediated generally in accordance with the endorsed Remediation Action Plan and a requirement for a Site Audit Statement specifying that the site is suitable for residential use.
I accept the agreed evidence of the urban design and planning experts that the further amended proposal is consistent with the relevant design guidance and design criteria in Part 4 of the ADG for the reasons given in their joint report (Ex H). I accept the agreed evidence of the urban design and planning experts that the setbacks from boundaries and between buildings are appropriate, consistent with the built context of the site, and fulfil the desired outcome for setbacks at 3.4.5 and 3.5.5 of DCP 2013. I am satisfied by the agreed evidence before me that the further amended proposal achieves the design principles set out in SEPP 65.
I satisfied by the agreed evidence of the urban design and planning experts that the proposal is consistent with the objectives of the R4 High Density Residential zone.
I accept the agreed submission of the parties that the changes made to the proposal in the amended application do not affect the agencies' general terms of agreement previously issued and incorporated into the conditions of consent at Annexure A.
[10]
Disputed terms of a condition of consent
The Council proposes 24 months to satisfy the terms of the deferred commencement condition of consent requiring the provision of documentary evidence confirming the creation of an easement over downstream properties for stormwater. The applicant seeks 60 months.
The Council submitted that 24 months to satisfy the terms of the deferred commencement condition of consent to obtain an operable consent ensures that the land will be developed in a timely manner.
The applicant submitted that the timing of legal and administrative requirements relating to easement registration may take longer than 24 months and there is no reason for sufficient time not to be allowed in relation to such a large and significant development. The easement is over Council and multiple adjoining downstream lands and the applicant submitted that it is the applicant's recent experience in dealing with this Council on easements that it has taken over 3 years to negotiate and then register similar easements.
I accept and prefer the applicant's submission. Once a deferred commencement consent lapses, there is no effective development consent (s 4.53(6) of the EPA Act, see Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 at [41]). For this reason, it is reasonable to provide a generous time period for the consent holder to fulfil the requirements of the deferred commencement condition of consent because the consent holder is dependent on other agents to fulfil those requirements. If the consent lapses because the deferred condition of consent remains unfulfilled, the land will not be developed in a timely manner.
[11]
Orders
The orders of the Court are:
1. The appeal is upheld.
2. Development Application No. 397/2020 for the demolition of existing structures, site preparation works, excavation, tree removal and construction of five 5-8 storey residential flat buildings over basement car parking, at 2-16 Epping Road and 2-4 Forest Grove, Epping, is approved, subject to the conditions of consent at Annexure A.
3. The exhibits, other than Exhibits 1 and 30, are returned.
[12]
Commissioner of the Court
Annexure A (522378, pdf)
Architectural Plans_Part1 (41675895, pdf)
Architectural Plans_Part2 (21626738, pdf)
[13]
Amendments
09 November 2021 - Added 'Architectural Plans' attachments.
12 November 2021 - Pursuant to UCPR r 36.17 and with the consent of all parties, amend Annexure A to the judgment of 8 November 2021 by amending the Lot and DP number at condition 141 from 'Lot 9 DP 10385' to 'Lot 17 DP 1204063' and amending the Lot and DP numbers at condition 142 from (a) 'Lot B DP 327784' to 'Lot 15 DP 1204061' and (b) 'Lot 9 DP 10385' to 'Lot 17 DP 1204063'.
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Decision last updated: 12 November 2021