Baissari v City of Parramatta Council

Category: Principal judgment

Parties: Charlie Baissari (Applicant)
City of Parramatta Council (Respondent)

Representation: Counsel:
A Johnson (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)
Solicitors:
Miller Prince (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/88338

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA/101/2024 (as amended) seeking consent for retention of the existing heritage listed building, removal of trees and construction of additional buildings to be used as a 105-place centre based childcare centre over car parking basement (Proposed Development) on land legally described as Lot 9 in Deposited Plan 7339 and known as 6 Hammers Road, Northmead NSW 2152 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 19 December 2025. I have presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.

7. The Site is located within the R2 Low Density Zone pursuant to the Parramatta Local Environmental Plan 2023 (PLEP). Centre-based childcare facilities are permitted with consent within the R2 Low Density Zone. Demolition works are permissible with consent under cl 2.7 of the PLEP.

8. The development application was notified by the Respondent between 5 March 2024 to 9 April 2024 and 7 submissions were received raising issues regarding traffic and parking, safety, noise, and other environmental impacts.

9. Clause 5.10 (Heritage conservation) and Sch 5 of the PLEP applies to the Site because the Site is listed as an item of local heritage significance (cottages) under Part 1 of Sch 5 of the PLEP (item no. I412), which relates to 4 and 6 Hammers Road. The Site is not located within a Heritage Conservation Area. The Site is located within the vicinity of a number of heritage items. I reproduce the following from the Statement of Facts and Contentions filed by the Respondent on 13 May 2025:

“8. The part of the heritage item on the site comprises is a single-storey weatherboard bungalow with a rectangular footprint that has a setback from Hammers Road. The remainder of the site is a large undeveloped grassed area. The site landscaping consists of small, minimal planting and grassed lawn areas. A gravel driveway runs from the front of the site along the eastern boundary and around the ear of the dwelling. Close to the rear of the dwelling are two structures, one a contemporary shed/storage space and the other is a weatherboard outhouse with corrugated metal clad roof. Presently located towards the middle of the yard is a large shipping container on the western boundary.

9. The land was subdivided in 1912 as the Grandview Estate and is shown on Water Board survey of May 1939 where No. 4 is named “Maverie”, and the site is named “Scotia”. According to the State Heritage Inventory “the two houses at 4 and 6 Hammers Road are of significance for the local area for historical reasons and as representative examples of the earliest suburban development of Northmead. The two substantial houses make an important contribution to the streetscape, additionally as a pair of similar age and style.

[…]

15. The site is surrounded by the following heritage items in the vicinity of the subject site:

(a) I420 (House)

(b) I427 (Timber Cottages)

(c) I409 (Toongabbie Creek)

(d) I414 (Cottage)

(e) I426 (Single storey residence)

10. The parties explain that the matters in cl 5.10 of the PLEP are satisfied as follows:

11. Clause 5.10(4) requires the consent authority to consider the effect of the proposed development on the heritage significance of the item before granting consent. The Amended DA is accompanied by the following documents:

(a) Statement of Heritage Impact prepared by Weir Phillips dated 10 May 2024 (see Tab 15 of the Class 1 Application) (Statement of Heritage Impact) which considers the effect of the proposed development on the heritage significance of the cottage and confirms that:

(i) The heritage cottage will be retained; and (ii) “The proposed works will have a minimal and acceptable impact on the heritage item” at page 30, and the impact of the proposed works on the Site is acceptable given that “the works are confined to the rear of the site and there will be little to no change of significant fabric to the heritage item” at page 37.

(b) Schedule of Conservations Works prepared by Weir Phillips Heritage dated 8 September 2025 (see Tab 13 of the amended material referred to in the s.34 Agreement) (Schedule of Conservations Works) which sets out works that are required to correct damage and ensure conservation of the heritage cottage at the Site.

2. Clause 5.10(5): The Amended DA is accompanied by the Statement of Heritage Impact (see Tab 15 of the Class 1 Application) which assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item and concludes that the impact of the proposed works on the Site is acceptable given that “the works are confined to the rear of the site and there will be little to no change of significant fabric to the heritage item” at page 37.

(a) Clause 5.10(6): The Amended DA is accompanied by the Schedule of Conservations Works (see Tab 13 of the amended material referred to in the s.34 Agreement).

11. The proposed building height of the Proposed Development is 5.8m and therefore complies with the 9m maximum height of building development standard pursuant to cl 4.3 of the PLEP.

12. The total gross floor area of the Proposed Development is 568m2 which is a proposed floor space ratio (FSR) of 0.25:1 as shown on Drawing No. DA-4.001, Revision G of the Architectural Plans dated 3 November 2025 and therefore complies with the maximum FSR development standard of 0.5:1 pursuant to cl 4.4 of the PLEP.

13. In relation to cl 6.1 of the PLEP, the Site is mapped as “class 5” on the Acid Sulfate Soils Map. The Preliminary Site Investigation Report (PSI) dated 28 August 2023 prepared by CEC Geotechnical Pty Ltd filed at Tab 18 with the Class 1 Application, states at p 8 that “The Department of Land and Water Conservation Acid Sulphate Soils Map indicates that the site is in an area of no known acid sulphate soils”. The results of the Geotechnical investigation Report dated 14 August 2023 prepared by CEC Geotechnical Pty Ltd filed at Tab 7 of the Class 1 Application, confirms at p 10 that the soil is “non-Saline” and sulphate is “Non-aggressive” for Steel Piles and Reinforced Concrete Piles”.

14. The PSI also confirms that the Site is considered suitable for proposed redevelopment and sensitive land use as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, provided that the following recommendations in the PSI are implemented:

15. After demolishing of the properties including house and other small size shed located at western end of the site, the client must carry out HAZMAT assessment by a licensed assessor;

16. Should evidence of site contamination be identified at any stage during the development process, such as staining, odorous soils, or suspect asbestos, then an experienced site contamination consultant should be contacted immediately for advice;

17. Any material to be removed off-site, ENM, MUST be classified for off-site disposal in accordance with the NSW EPA (2014) Waste Classification Guidelines;

18. Any material being imported to the site for backfilling purposes should be assessed for potential contamination in accordance with the EPA guidelines;

19. Although the Department of Land and Water Conservation Acid Sulphate Soils Map indicates that the site is in an area of no known acid sulphate soils. While planning certificate indicated that the site is affected by Acid Sulphate Soils (Class 5). Therefore, if it is required to perform acid sulphate soil assessment, an experienced site contamination consultant should be contacted immediately for ASS assessment and management plant if required.

20. Conditions 2, 50, 67 and 70 at Annexure A ensure that the above recommendations are implemented.

21. Consent is sought for earthworks pursuant to cl 6.2 of the PLEP as it relates to the excavation for the basement which is detailed on Drawing No. ER001 and ER002, Revision E of the Stormwater Management Plans prepared by Capital Engineering Consultants, dated 25 August 2025.

22. The Proposed Development satisfies cl 6.5 of the PLEP which provides jurisdictional prerequisites relating to stormwater management. The Proposed Development has been designed and sited to mitigate any adverse environmental impact on the hydrological functions of the existing waterways, water flows and avoids impacts of stormwater runoff on the land and adjoining properties and infrastructure by virtue of the stormwater drainage solution which includes an on-site detention system and a rainwater tank for the Site detailed in the Stormwater Management Plans, Revision E prepared by Capital Engineering Consultants dated 25 August 2025.

23. I am satisfied that essential services are available or that adequate arrangements have been made to make them available pursuant to cl 6.7 of the PLEP because:

24. The Survey Plan prepared by Sydney Surveyors dated 22 November 2023 behind Tab 10 of the Class 1 Application confirms that water and electricity are available to the Site. Suitable road access to the proposed development at the Site is shown on the Architectural Plans.

25. Disposal and management of sewage and stormwater drainage is detailed on the Stormwater Management Plans, Revision E prepared by Capital Engineering Consultants dated 25 August 2025.

26. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) contains provisions relating to development within regulated catchments and the Site is located in the Sydney Harbour Catchment. Division 2 of Part 6.2 under Ch 6 of the Biodiversity and Conservation SEPP provides a number of matters which the consent authority must consider or be satisfied of, prior to the grant of development consent. The Applicant submits the following in satisfaction of those matters:

27. Section 6.6 (‘Water Quality and Quantity’): The Court can be satisfied that the proposed development will not have the effect of water entering a natural waterbody and will be as close as possible to neutral and will not impact on the water flow in a natural waterbody having regard to the following:

(a) water quality targets and treatment via a rainwater tank, OSD tank fitted with water quality devices and stormwater drainage easement are detailed on Drawing No. SW011, SW020, SW021, SW022 and SW023, Revision E of the Stormwater Management Plans prepared by Capital Engineering Consultants, dated 25 August 2025 (see Tab 3 of the Amended Material referred to in the s.34 Agreement); (b) the modelling on Drawing No. SW030, Revision E (Stormwater Layout Plan WSUD Catchment Plan, Model Notes & Details) of the Stormwater Management Plans prepared by Capital Engineering Consultants dated 25 August 2025 and the details on Drawing No. ER001 and ER002 (Stormwater Layout Plan Erosion & Sediment Control Plan, Notes & Details (1/2) and (2/2)), Revision E of the Stormwater Management Plans prepared by Capital Engineering Consultants dated 25 August 2025.

2. Section 6.7 (Aquatic ecology): The proposed development does not involve the clearing on riparian vegetation and is not anticipated to have any impact on aquatic ecology due to the nature and confined scope of the changes proposed.

3. Section 6.8 (Flooding): The Site is not identified as flood liable land in a regulated catchment and MUSIC modelling has been carried out (detailed on Drawing No. SW030, Revision E (Stormwater Layout Plan WSUD Catchment Plan, Model Notes & Details) of the Stormwater Management Plans prepared by Capital Engineering Consultants dated 25 August 2025).

4. Section 6.9 (Recreation and public access): The proposed development is not anticipated to have any impact on recreational land uses or the available public access to nearby natural waterbodies. MUSIC modelling has been carried out to ensure this (detailed on Drawing No. SW030, Revision E (Stormwater Layout Plan WSUD Catchment Plan, Model Notes & Details) of the Stormwater Management Plans prepared by Capital Engineering Consultants dated 25 August 2025).

5. Section 6.10 (Total catchment management): The Site is not in close proximity to any LGA boundaries with a neighbouring local government authority and therefore is not expected to have an adverse environmental impact for adjacent and downstream local government areas.

6. Section 6.11 (Land within 100m of natural waterbody): The Site is not within 100m of a natural waterbody.

7. Section 6.12 (Riverine Scenic Areas): The Site is not within a riverine scenic area.

8. The Proposed Development involves development carried out within 5m of an exposed overhead electricity power line. Section 2.48(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) requires the Respondent to notify the electricity supply authority for the area in which the development is to be carried out, being Endeavour Energy, inviting comments about potential safety risks, and take into consideration any response to the notice. Endeavour Energy has been notified and does not object to the Proposed Development. A copy of the response from Endeavour Energy can be found at Appendices A & B of the Conditions at Annexure A.

9. Section 3.26 of the Transport and Infrastructure SEPP sets out non-discretionary development standards for the purpose of s 4.15 of the EPA Act in relation to the carrying out of development for the purpose of a centre-based childcare facility. The Proposed Development provides 348m2 of unencumbered indoor play space and 739m2 of unencumbered outdoor play space which is consistent with the indoor and outdoor unencumbered space requirements of cll 107 and 108 of the Education and Care Service National Regulations, which requires a minimum of 3.25m2 of unencumbered indoor play space and 7m2 of unencumbered outdoor play space.

10. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as I have set out in this judgment.

11. 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.

Notations:

24. The Court notes:

25. The Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending Development Application No. DA/101/2024 in accordance with the following amended plans (Amended Development Application):

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No. DA-0.001, Revision G | Cover Page | Baini Design | 3 November 2025 | | Drawing No. DA-0.002, Revision G | Compliance Table, Location Plan | | Drawing No. DA-1.001, Revision G | Site Context Plan | | Drawing No. DA-1.002, Revision G | Site Analysis Plan | | Drawing No. DA-1.003, Revision G | Shadow Diagrams | | Drawing No. DA-1.004, Revision G | Shadow Diagrams | | Drawing No. DA-1.005, Revision G | Site Plan | | Drawing No. DA-1.006, Revision G | Site Demolition Plan | | Drawing No. DA-1.007, Revision G | Existing/Demolition Plan | | Drawing No. DA-2.001, Revision G | Basement Plan | | Drawing No. DA-2.002, Revision G | Ground Floor Plans | | Drawing No. DA-2.003, Revision G | Roof Plan | | Drawing No. DA-3.001, Revision G | Elevations | | Drawing No. DA-3.002, Revision G | Sections | | Drawing No. DA-4.001, Revision G | Ground Floor FSR Cal | | Drawing No. DA-4.002, Revision G | Ground Floor Outdoor Calc. Plan - | | Drawing No. DA-4.003, Revision G | Ground Floor Fence Plan | | Drawing No. DA-4.004, Revision G | Fencing Detail | | Drawing No. DA-4.005, Revision G | Accessible Ground Floor Plan | | Drawing No. DA-4.006, Revision G | Accessible Basement Floor Plan | | Drawing No. DA-4.007, Revision G | Ground Floor Access Plan | | Drawing No. DA-4.008, Revision G | Basement Access Plan | | Drawing No. DA-5.001, Revision G | Indoor Calc. Plan | | Drawing No. DA-6.001, Revision G | Solar Study Plan - 9AM | | Drawing No. DA-6.002, Revision G | Solar Study Plan - 3PM | | Drawing No. DA-6.003, Revision G | Solar Study Internal Plan | | Drawing No. DA-6.004, Revision G | Solar Study Internal Plan | | Drawing No. DA-7.001, Revision G | Callout Elevations | | Drawing No. DA-7.002, Revision G | Kitchen & Laundry Details | | Drawing No. DA-8.001, Revision G | Typical Nappy Change | | Drawing No. DA-8.002, Revision G | Typical Bottle Prep Detail | | Drawing No. DA-9.001, Revision G | Schedule of Finishes | | Drawing No. DA 10.001, Revision G | 3D Perspectives | | Landscape Plans | | 2 | Drawing No. 150.25(23)/318’C’, Revision C | Landscape Plan 1 | iScape Landscape Architects | 2 September 2025 | | Drawing No. 150.25(23)/319’C’, Revision C | Landscape Plan 2 | | Stormwater Management Plans | | 3 | Drawing No. SW001, Revision E | Stormwater Layout Plan Cover Sheet | Capital Engineering Consultants | 25 August 2025 | | Drawing No. SW002, Revision E | Stormwater Layout Plan Typical Drainage Notes & Details | | Drawing No. SW010, Revision E | Stormwater Layout Plan Basement Plan, Notes & Details (1/2) | | Drawing No. SW011, Revision E | Stormwater Layout Plan Basement Plan, Notes & Details (2/2) | | Drawing No. SW020, Revision E | Stormwater Layout Plan Ground Floor Plan, Notes & Details (1/4) | | Drawing No. SW021, Revision E | Stormwater Layout Plan Ground Floor Plan, Notes & Details (2/4) | | Drawing No. SW022, Revision E | Stormwater Layout Plan Ground Floor Plan, Notes & Details (3/4) | | Drawing No. SW023, Revision E | Stormwater Layout Plan Ground Floor Plan, Notes & Details (4/4) | | Drawing No. SW030, Revision E | Stormwater Layout Plan WSUD Catchment Plan, Model Notes & Details | | Drawing No. ER001, Revision E | Stormwater Layout Plan Erosion & Sediment Control Plan, Notes & Details (1/2) | | Drawing No. ER002, Revision E | Stormwater Layout Plan Erosion & Sediment Control Plan, Notes & Details (2/2) | | Evacuation Diagrams | | 4 | Evacuation Diagram, Basement | SPS Fire and Safety | 25 August 2025 | | Evacuation Diagram, Ground Floor | | Swept Paths | | 5 | Drawing No. 23–041–03–V5, Sheet No. 01/15 | Car Park Compliance Review Concept Layout – Option 2 Ground | Stanbury Traffic Planning | 7 October 2025 | | Drawing No. 23–041–03–V5, Sheet No. 02/15 | Car Park Compliance Review Concept Layout – Option 2 Basement | | Drawing No. 23–041–03–V5, Sheet No. 03/15 | Car Park Compliance Review Swept Path Assessment – Option 2 Ground | | Drawing No. 23–041–03–V5, Sheet No. 04/15 | Car Park Compliance Review Swept Path Assessment – Option 2 Ground | | Drawing No. 23–041–03–V5, Sheet No. 05/15 | Car Park Compliance Review Swept Path Assessment – Option 2 Ground | | Drawing No. 23–041–03–V5, Sheet No. 06/15 | Car Park Compliance Review Swept Path Assessment – Option 2 Ground | | Drawing No. 23–041–03–V5, Sheet No. 07/15 | Car Park Compliance Review Swept Path Assessment – Option 2 Basement | | Drawing No. 23–041–03–V5, Sheet No. 08/15 | Car Park Compliance Review Swept Path Assessment – Option 2 Basement | | Drawing No. 23–041–03–V5, Sheet No. 09/15 | Car Park Compliance Review Swept Path Assessment – Option 2 Basement | | Drawing No. 23–041–03–V5, Sheet No. 10/15 | Car Park Compliance Review Swept Path Assessment – Option 2 Basement | | Drawing No. 23–041–03–V5, Sheet No. 11/15 | Car Park Compliance Review Swept Path Assessment – Option 2 Basement | | Drawing No. 23–041–03–V5, Sheet No. 12/15 | Car Park Compliance Review Vertical Clearance Assessment Main Access Ramp | | Drawing No. 23–041–03–V5, Sheet No. 13/15 | Car Park Compliance Review Vertical Clearance Assessment Main Access Ramp | | Drawing No. 23–041–03–V5, Sheet No. 14/15 | Car Park Compliance Review Vertical Clearance Assessment Main Access Ramp | | Drawing No. 23–041–03–V5, Sheet No. 15/15 | Car Park Compliance Review Vertical Clearance Assessment Main Access Ramp | | Reports | | 6 | Charlie Baissari vs City Of Parramatta Council -Commentary on Kitchen Location | Think Planners Pty Ltd | 2 September 2025 | | 7 | Car Park Management Plan | Stanbury Traffic Planning | 28 August 2025 | | 8 | Updated Parking & Traffic Impact Assessment | Stanbury Traffic Planning | 28 August 2025 | | 9 | Plan of Management | | 14 October 2025 | | 10 | Report on proposed child care service at: 6 Hammers Rd Northmead NSW | Early Education Solutions | 24 October 2025 | | 11 | Environmental Noise Assessment | Day Design Pty Ltd | 17 September 2025 | | 12 | Arboricultural Impact Assessment and Tree Management Plan | Redgum Horticultural | 12 September 2025 | | 13 | Schedule of Conservation Works | Weir Phillips Heritage | 8 September 2025 |

Orders:

25. The Court orders:

26. The Appeal is upheld.

27. Development consent is granted to Development Application No. DA/101/2024 (as amended) for tree removal, demolition of structures, retention and internal fit out of the existing heritage listed building and construction of two single storey buildings over split level with basement car parking for use as a 105 place childcare centre on land legally described as Lot 9 in Deposited Plan 7339 and known as 6 Hammers Road, Northmead NSW 2152, subject to the conditions at Annexure A.

28. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $11,000 within 28 days of the date of these orders.

E Espinosa

Commissioner of the Court

*********

Annexure A.484 KB.pdf

Architectural plans 1. 30.6 MB.pdf

Architectural Plans 2. 37.6 MM.pdf