Evoque Living Pty Ltd v Strathfield Municipal Council

Texts Cited: Strathfield Council Stormwater Management Code adopted 18 October 1994
Strathfield Consolidated Development Control Plan 2005

Category: Principal judgment

Parties: Evoque Living Pty Ltd (Applicant)
Strathfield Municipal Council (Respondent)

Representation: Counsel:
A Knox (Solicitor)(Applicant)
P Hudson (Solicitor)(Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/366517

Publication restriction: No

Judgment

1. COMMISSIONER: The Applicant seeks development consent to subdivide land into 2 residential allotments which will result in lot sizes that will be smaller than the minimum lot size development standard prescribed by the Strathfield Local Environmental Plan 2012 (SLEP).

2. 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 2024/62 seeking consent for the demolition of existing structures and Torrens Title subdivision of one lot into two residential allotments (Proposed Development) at 3-5 Nichol Parade, Strathfield legally described as Lot 1 in DP 104242. (the Site).

3. The proposed development seeks approval for Torrens Title subdivision of an existing residential allotment (1,060m2) into two (2) separate allotments resulting in a total site area of 530.91m2 and 529.69m2 of Lot 1 and Lot 2 respectively.

4. The parties rely on the following Joint expert reports (JER):

5. Planning JER prepared by Mr Tim Cooper, Senior Town Planner of Chapman Planning for the Applicant and Ms Louise Gibson, Senior Development Assessment Planner for the Respondent filed 27 March 2025;

6. Stormwater Engineering JER prepared by Youssef Riad for the Applicant and Rhys Thomson for the Respondent filed 25 March 2025

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

8. 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.

9. 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.

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

11. 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 s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) regarding the contamination status of the Site, Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) regarding water quality and the terms of cl 4.6 of the SLEP to vary the minimum lot size development standard. The parties explained how the jurisdictional prerequisites have been satisfied.

Flooding and stormwater

10. In relation to flooding, the Proposed Development demonstrates how overland flow flood risk will be managed in accordance with cl 5.21 of the SLEP.

11. In accordance with cl 6.4(1)(e) of the SLEP the Proposed Development has provided sufficient information to satisfy that adequate arrangements have been made to manage stormwater drainage of the Proposed Development and in accordance with cl 6.4(f) of the SLEP the conditions provide for vehicular access to the 2 new lots.

12. The Stormwater Engineering JER addresses contention 3 regarding flooding and contention 4 regarding stormwater drainage. The stormwater engineering experts agree that the following documents resolve both of these contentions subject to evidence that genuine attempts to acquire an easement have failed, and subject to conditions:

13. NY Civil Engineering (2025). Stormwater Management Plan Proposed Subdivision No. 3 – 5 Nichol Parade, Strathfield, Issue C, dated 21 March 2025 (Attachment B to the Stormwater and Engineering JER);

14. NY Civil Engineering letter dated 7 March 2025, Re: Stormwater Design (Attachment C to the Stormwater and Engineering JER); and

15. DRAINS model prepared by NY Civil Engineering on 20 March 2025.

16. The parties have agreed on a deferred commencement condition which will require the Applicant to either acquire an easement or to provide documentary evidence demonstrating that genuine attempts of acquiring an easement to downstream properties to either Vernon Street or Carrington Avenue.

17. Where an easement is unable to be acquired, the stormwater engineering experts agree that the revised Stormwater Management Plan for the roof drainage to be connected with the street is acceptable while the remaining area of less than 40m2 per lot will be connected to a proposed infiltration trench is consistent with the Strathfield Council Stormwater Management Code adopted 18 October 1994.

18. The Site is located within the Sydney Harbour Catchment and is subject to the provisions in Chapter 6 of the Biodiversity and Conservation SEPP. The parties have considered and agreed that the Proposed Development meets the aims and objectives of Chapter 6 and that there are appropriate stormwater and drainage mechanisms forming part of the Proposed Development to mitigate any impacts on the Sydney Harbour. Agreed Conditions 8 to 11 requiring the preparation of detailed plans of the drainage system before a subdivision works certificate is issued will be imposed with respect to stormwater.

19. The Court is satisfied that the mandatory matters at Chapter 6 of the Biodiversity and Conservation SEPP have been considered in these proceedings and that the Proposed Development is compliant with ss 6.6 and 6.7 of the Biodiversity and Conservation SEPP.

Justification of contravention of Minimum lot size development standard:

17. The Site is zoned R2 – Low Density Residential under the provisions of the SLEP.

18. Torrens title subdivision, is permissible with consent within the R2 zone. The minimum lot size development standard resulting from a subdivision of land is 560m2 within the R2 – Low Density zoning: cl 4.1(3), SLEP. The Proposed Development seeks to contravene that development standard by providing a lot size of 530.91m2 for the proposed Lot 1 and of 529.69m2 for the proposed Lot 2 resulting from the subdivision. The contravention is equal to a 5.2% (departure of 29.09m2) and 5.4% (30.31m2) respectively, to the minimum lot size development standard.

19. The Applicant relies on a written request pursuant to cl 4.6 of the SLEP to justify the contravention of cl 4.1 of the SLEP (Written Request). The Written Request prepared by Chapman Planning dated 26 March 2025 was considered by the Planning experts in the Planning JER who agree that the Written Request:

20. demonstrates that compliance with the minimum lot size standard is unnecessary or unreasonable in the circumstances of the case, per cl 4.6(3)(a) of the SLEP; and

21. provides sufficient environmental planning grounds to justify contravening the development standard, per cl 4.6(3)(b) of the SLEP subject to the stormwater engineering contentions being resolved.

22. I note that the stormwater engineering contentions have been resolved as I have set out above.

23. I have read the Written Request and adopt the reasons given in that document for being satisfied that the Written Request seeking to justify the contravention of the development standard in cl 4.1 of the SLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the SLEP.

Other jurisdictional prerequisites

22. The owners of the Site have provided their consent to the making of the development application as evidenced in the Development Application Form and separate consent letter filed with the Class 1 Application.

23. The Council has considered the contamination status of the Site pursuant to s 4.6 of the Resilience and Hazards SEPP. The Assessment Report dated 13 September 2024, at Tab 6 of the Bundle of Documents filed 28 March 2025 provides that a review of the available history for the Site gives no indication that the land associated with this development is contaminated, there were no historic uses that would trigger further site investigations and that historical uses appear residential.

24. Although the Site adjoins the Vernon Street Heritage Conservation Area (HCA) and Heritage item i210, being 22 Vernon Street, the Court is satisfied that the Proposed Development satisfies cl 5.10 of the SLEP because the Site is within a separate visual catchment to the HCA.

25. The Assessment Report also identifies the Site as having Class 5 Acid Sulfate Soils but is not located within 500m of a Class 1, 2, 3 or 4 soils. Therefore, development consent under the provisions of cl 6.1 of the SLEP is not required nor is an Acid Sulfate Soils Management Plan required.

26. 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.

27. 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:

28. The Court notes that:

29. Strathfield Municipal Council as the relevant consent authority for the purposes of section 38(1) of the Environmental Planning and Assessment Regulation 2021 approves the amendment to the Development Application DA 2024/62 to rely on the following amended plans and documentation:

(a) drawings as follows:

| Plan | Ref | Drawn by | Dated | | Stormwater Management Plan – Details, Notes & Legend | D1 | NY Civil Engineering | 21.3.2025 | | Stormwater Management Plan – Typical Subdivision Layout | D2 | NY Civil Engineering | 21.3.2025 | | Stormwater Details | D3 | NY Civil Engineering | 21.3.2025 | | Sediment Control Plan | D4 | NY Civil Engineering | 21.3.2025 | | Sediment Control Details | D5 | NY Civil Engineering | 21.3.2025 |

(b) Clause 4.6 Request to Contravene a Development Standard relating to minimum subdivision lot size prepared by Chapman Planning Pty Ltd dated 26 March 2025. (c) Stormwater design letter prepared by NY Civil Engineering dated 7 March 2025

Orders:

29. The Court orders:

30. The appeal is upheld.

31. Development Application DA 2024/62 for Torrens title subdivision of the existing allotment into two separate allotments including associated subdivision works at 3-5 Nichol Parade, Strathfield is determined by the grant of development consent subject to the conditions at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A

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Amendments

08 April 2025

Typographical correction on the cover page.