COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA/100/2021 for the demolition of existing structures, tree removal and construction of a three (3) storey boarding house containing fourteen (14) single occupancy rooms with associated parking and landscaping (the Proposed Development) at 5 Buller Street Parramatta legally described as Lot 1 in DP 178742 (the Site).
The Class 1 Development Appeal had been listed for hearing however as a result of amendments made to the development application by the Applicant, the Local Planning Panel resolved on 4 April 2023 as follows:
"The Panel agrees the application as amended suitably resolves the earlier issues of refusal and provides a satisfactory outcome with improved design and solar access, with resolution of the concerns of the flooding issues, with ongoing action.
The Panel notes that the conditions of consent proposed by the Council are satisfactory to the applicant.
In particular the Panel is satisfied with the Council approved Plan Of Management that deals with day to day issues of the operation including ongoing maintenance for flooding.
Accordingly the Panel resolves that the Council enter into a s34 agreement and request the Commissioner dispose of the matter by way of a s34 Conciliated Agreement based on the further without prejudice amended plans and documentation and agreed conditions.
The Panel decision was UNANIMOUS."
Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17 April 2023. I presided over the conciliation conference.
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.
Under s 34(3) of the Land and Environment Court Act 1979 (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.
The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
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 to be the terms of cl 5.21 of the Parramatta Local Environmental Plan 2011 (PLEP) in relation to flood planning and the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).
The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement which I have considered and summarise below.
The Site is owned by the Applicant, Electric Pty Ltd. Owners' consent dated 4 February 2021 was filed with the Class 1 Application in relation to the lodgement of the development application on 10 February 2021 with the Respondent.
The Site is zoned R3 - Medium Density Residential (R3 Zone) under the PLEP. The PLEP is saved pursuant to cl 1.8A of the Parramatta Local Environmental Plan 2023 which commenced on 2 March 2023 and repealed the PLEP.
The Proposed Development is characterised as a "boarding house" which is permissible in the R3 Zone.
The R3 Zone objectives are not pre-conditions to the grant of consent however I note that the parties have considered the objectives pursuant to cl 2.2 of the PLEP and that the parties agree that the Proposed Development is compatible with the objectives of the R3 Zone.
The maximum height of buildings development standard applicable to the Site pursuant to cl 4.3 of the PLEP is a maximum of 11m. The Applicant filed a Plan Showing Relative Heights and Features of the Site prepared by Surveying Solutions Pty Ltd on 1 June 2028 with the Class 1 Application. This survey information read in conjunction with the architectural plans demonstrates that the Proposed Development does not contravene the height of building development standard.
The maximum floor space ratio (FSR) development standard applicable to the Site under cl 4.4 of the PLEP is an FSR of 0.60:1. The Proposed Development complies with the FSR development standard.
There are no heritage items on or in the vicinity of the Site, and the Site is not located in a heritage conservation area. Accordingly, there are no relevant jurisdictional prerequisites in cl 5.10 of the PLEP.
The Site is within a flood planning area because it is affected by 1% Annual Exceedance Probability (AEP) local overland flow flood. Accordingly, development consent must not be granted to the Proposed Development unless the consent authority, in this case the Court, is satisfied the development complies with the following jurisdictional prerequisites from cl 5.21(2) of the PLEP:
(a) is compatible with the flood function and behaviour on the land, and
(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and
(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and
(d) incorporates appropriate measures to manage risk to life in the event of a flood, and
(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.
For the purposes of cl 5.21 of the PLEP, the Proposed Development is compliant with the free-board requirements having finished floor levels 2.9m above the 1% AEP flood event. In addition:
1. The design proposes a suspended slab system for the structure that allows floodwaters to pass through the Site during major flood events thereby providing an overland flow path and maintaining existing flood conveyance and storage on the land.
2. The Proposed Development is not predicted to have adverse impacts on the neighbouring properties, and the hazards to people and vehicles remain unchanged.
3. In the event of a flooding emergency, refuge can be taken within the first and second floor of the Proposed Development which are both set above the predicted probable maximum flood (PMF) level.
The parties have also agreed conditions of development consent at Annexure A, to ensure compliance with the flood planning requirements of the PLEP.
The Site is identified as Class 5 Acid Sulfate Soils for the purposes of cl 6.1 of the PLEP. Excavation is limited to the surface works required due to the identified surface runoff issues identified in the area. I am therefore satisfied that the Proposed Development will not disturb, expose or drain acid sulfate soils or cause environmental damage. The works will not lower the surrounding water table.
As consent is sought for earthworks, the Respondent in the assessment of the Proposed Development, must consider the matters identified in cl 6.2(3) of the PLEP. I note that the Respondent has considered the cl 6.2(3) matters as part of the assessment of the amended plans and that the Respondent considers that the proposed earthworks and excavation will not have a detrimental impact on the soil stability or the amenity of the neighbouring uses.
Although the SEPP ARH has been repealed and the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) came into effect on 26 November 2021, the Development Application is saved by s 2(1)(a) of Sch7A to SEPP Housing and accordingly the provisions of the SEPP ARH, as in force on 25 November 2021 applies to the Proposed Development (CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97)
The parties' state that the Court can be satisfied that consideration has been given to the provisions of SEPP ARH in the preparation of the amended plans and that the SEPP ARH is adequately dealt with.
The Court is satisfied that the Site is in the state of New South Wales (cl 7, SEPP ARH) and that in relation to Pt 2 Div 3 of the SEPP ARH, the Site is Zone R3 (cl 26(c), SEPP ARH) and that the Proposed Development is for a boarding house (cl 27(1), SEPP ARH).
In respect to the development standards at cl 30 of the SEPP ARH, the Court is satisfied as follows:
1. the Proposed Development provides a communal living room (cl 30(1)(a));
2. none of the boarding rooms exceeds the control of 25m2 for gross floor area excluding kitchen and bathroom facilities (cl 30(1)(b));
3. the plan of management limits each room to a maximum of 1 lodger (cl 30(1)(c));
4. adequate bathroom and kitchen facilities are provided for each lodger (cl 30(1)(d)); and
5. there are adequate bicycle and motor bike facilities in accordance with cl 30(1)(h).
A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area (cl 30A, SEPP ARH). There is no disagreement between the parties that the design of the Proposed Development is compatible with the character of the local area.
The Applicant relies on a Traffic Impact Assessment (TIA) report prepared by AusWide Consulting dated January 2022 filed 10 August 2022. However, the Proposed Development does not constitute traffic generating development or development of a kind listed in Sch 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021, nor is it adjacent to an identified classified road. The Court notes that the TIA report concludes that the Proposed Development is satisfactory, will comply with the design requirements of AS/NZS 2890.1:2004and will not create any unsatisfactory traffic conditions for the locality.
The State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to all of NSW and s 4.6 provides that contamination and remediation must be considered in determining development application. The Applicant's Statement of Environmental Effects dated 2 December 2020 filed with the Class 1 Application provides at page 8 that the Site is located within an established residential area with residential land uses continuing to the present and accordingly, the Site has a low risk for potential land contamination.
In addition to the notification of the Proposed Development as set out in paragraph 22 of the Statement of Facts and Contentions filed 16 September 2022, the Court notes that objectors made written and oral submissions at the previous conciliation conference on 29 September 2022 and, the Respondent has filed two further written submissions in relation to the Proposed Development as amended. I am satisfied that the submissions have been taken into account by the parties when reaching their agreement.
For these reasons, 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.
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.
[2]
Notations:
The Court notes that:
1. The Respondent agrees pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. DA/100/2021 consistent with the plans and documents set out in Condition 1 of Annexure A. The Amending documents are:
1. Architectural Plans - Huxley Architects dated 01/02/2023
2. Flood Risk Assessment Report - Stellen Consulting 09/01/2023
3. Flood Risk Assessment - Unauthored - 20/12/2022
4. Draft Flood Emergency Response Plan - Expert ESA 10/12/2022
5. Plan of Management - Think Planners - 00/12/2022
6. Social Impact Assessment Covering Commentary - Think Planners - 00/12/2022
7. Stormwater Design Statement - Stellen Engineering - 08/02/23;
8. Stormwater Management Plan - Stellen Engineering - 22/02/2023
1. The Respondent will lodge all amended plans and documents referred to in note 31(1) on the NSW Planning Portal within 14 days of the making of orders granting consent to the amended development application.
2. The parties agree that:
1. the costs to be paid by the Applicant to the Respondent pursuant to order 2 of the orders dated 19 August 2022 are $850,
2. the costs to be paid by the Respondent to the Applicant pursuant to order 4 of the orders dated 16 September 2022 are $850, and
3. that these costs are to be set off against one another.
[3]
Orders:
The Court orders:
1. The Appeal is upheld.
2. Development Application No. DA/100/2021 lodged with the Respondent on 10 February 2021, being for the demolition of existing structures, tree removal and construction of a three (3) storey boarding house containing fourteen (14) single occupancy rooms with associated parking for six (6) vehicles and associated earthworks and landscaping at land known as 5 Buller Street, North Parramatta being Lot 1 DP 178742, is determined by the grant of consent subject to the conditions in Annexure A.
3. The Applicant must pay the Respondent's costs thrown away by the amended application, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $3,200, within 14 days of the date of these orders.
[4]
Commissioner of the Court
171718.22 Annexure A (371454, pdf)
171718.22 Architectural Plans (5231823, pdf)
171718.22 Plan of Management (3259416, pdf)
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 May 2023