Granville 101 Pty Ltd v City of Parramatta Council

Category: Principal judgment

Parties: Granville 101 Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation: Counsel:
S Patterson (Solicitor) (Applicant)
A Guy (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2024/218377

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 (EPA Act) being an appeal against the deemed refusal of DA-238/2024 for the construction of a mixed-use building comprising of a ground floor commercial tenancy, 106 serviced apartments and a 140-place child care facility (DA) at 99 Parramatta Road, Granville (site).

2. Initially listed for a hearing on 24-25 March 2025, on the request of the parties the Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) on 24 March 2025. I presided over the conciliation conference.

3. The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-238/2024 in accordance with the documents listed below:

4. Architectural Plans prepared by CD Architects.

| Drawing/Plan No. | Issue | Plan Title | Dated | | DA 1001 | I | Cover Sheet | 20/03/2025 | | DA 1002 | E | Compliance Table | 04/11/2024 | | DA 1005 | E | Site Plan | 04/11/2024 | | DA 1007 | A | Demolition Plan | 04/04/2024 | | DA 1101 | E | Basement Level 2 Floor Plan | 04/11/2024 | | DA 1102 | E | Basement Level 1 Floor Plan | 04/11/2024 | | DA 1103 | F | Ground Floor Plan | 29/01/2025 | | DA 1104 | G | Level 1 Floor Plan | 12/03/2025 | | DA 1105 | F | Level 2 Floor Plan | 29/01/2025 | | DA 1106 | F | Level 3 Floor Plan | 29/01/2025 | | DA 1107 | E | Level 4 Floor Plan | 04/11/2024 | | DA 1108 | E | Level 5 Floor Plan | 04/11/2024 | | DA 1109 | D | Level 6 Floor Plan | 04/11/2024 | | DA 1110 | D | Level 7 Floor Plan | 04/11/2024 | | DA 1111 | C | Level 8 Floor Plan | 04/11/2024 | | DA 1112 | D | Roof Level Floor Plan | 04/11/2024 | | DA 2001 | E | North Elevation | 04/11/2024 | | DA 2002 | G | South Elevation | 29/01/2025 | | DA 2003 | E | East Elevation | 04/11/2024 | | DA 2004 | F | West Elevation | 04/11/2024 | | DA 3002 | E | Building Section A | 04/11/2024 | | DA 3004 | C | Driveway Section | 04/11/2024 | | DA 3005 | C | Loading Dock Section | 04/11/2024 | | DA 6001 | E | Shadow Diagrams | 04/11/2024 | | DA 6021 | F | Childcare Solar Access Study 8am | 29/01/2025 | | DA 6022 | F | Childcare Solar Access Study 9am | 29/01/2025 | | DA 6023 | F | Childcare Solar Access Study 10am | 29/01/2025 | | DA 6024 | F | Childcare Solar Access Study 11am | 29/01/2025 | | DA 6025 | F | Childcare Solar Access Study 12pm | 29/01/2025 | | DA 6026 | F | Childcare Solar Access Study 1pm | 29/01/2025 | | DA 6027 | F | Childcare Solar Access Study 2pm | 29/01/2025 | | DA 6028 | F | Childcare Solar Access Study 3pm | 29/01/2025 | | DA 6029 | F | Childcare Solar Access Study 4pm | 29/01/2025 | | DA 7001 | F | GFA Calculation | 29/01/2025 | | DA 7002 | F | Childcare Area Calculation | 29/01/2025 | | DA 7003 | B | Level 1 Shelter In Place Diagram | 20/03/2025 | | DA 7031 | D | 3D View – Sheet 1 | 24/10/2024 | | DA 7032 | C | 3D View – Sheet 2 | 24/10/2024 | | DA 7034 | D | Finishes Schedule – Sheet 1 | 04/11/2024 | | DA 7035 | B | Finishes Schedule – Sheet 2 | 16/10/2024 | | DA 7036 | C | Emergency Evacuation Diagrams | 04/11/2024 | | DA 7037 | A | Deep Soil and Front Landscape Section | 29/01/2025 | | DA 7050 | C | Dual Key | 24/10/2024 | | DA 7091 | C | LEP Height Blanket | 04/11/2024 | | DA 7601 | A | Punthill Studio & Single Bed Room Comparison Sheet | 23/08/2024 | | DA 7602 | A | Punthill 2 Bedroom Comparison Sheet | 23/08/2024 |

2. Concept Civil Public Domain Works Drawings and Stormwater Management Plan prepared by Smart Structures Australia:

| Drawing/Plan No. | Issue | Plan Title | Dated | | C1000 | A | Cover Sheet, Locality Plan and Drawing Schedule | - | | C01 | B | Civil Works Layout Plans | 13/11/2024 | | CI002 | A | Typical Sections and Details | 10/04/2024 | | CI010 | A | Typical Details | 10/04/2024 | | D00 | A | Cover Sheet, Legend & Drawing Schedule | - | | D01 | C | Basement 2 Stormwater Drainage Plan | 13/11/2024 | | D02 | C | Basement 2 Stormwater Drainage Plan | 13/11/2024 | | D03 | C | Ground Floor Stormwater Drainage Plan | 13/11/2024 | | D04 | C | Level 1 Stormwater Drainage Plan | 13/11/2024 | | D10 | C | Post Development Catchment Plan and Music Model Results | 13/11/2024 | | D15 | C | Stormwater Drainage Sections and Details Sheet 1 | 13/11/2024 | | D16 | A | Stormwater Drainage Sections and Details Sheet 2 | 08/04/2024 | | D20 | B | OSD Design Calculation and Details Sheet 1 | 01/11/2024 | | D21 | B | OSD Design Calculations and Details Sheet 2 | 01/11/2024 | | D22 | B | OSD Design Calculation and Details Sheet 3 | 01/11/2024 | | D25 | A | Erosion and Sediment Control Plan and Details Sheet 1 | 08/04/2024 | | D26 | A | Erosion and Sediment Control Plan and Details Sheet 2 | 08/04/2024 |

3. Landscape Plans prepared by Site Image Landscape Architects:

| Drawing/Plan No. | Issue | Plan Title | Dated | | 000 | D | Landscape Cover Sheet | 11/11/2024 | | 001 | D | Deep Soil Plan | 11/11/2024 | | 100 | D | Landscape Plan Ground Floor | 11/11/2024 | | 101 | C | Landscape Plan Level 01 | 08/11/2024 | | 102 | D | Landscape Plan Level 02 | 11/11/2024 | | 103 | C | Landscape Plan Level 03 | 08/11/2024 | | 104 | C | Landscape Plan Level 04 | 08/11/2024 | | 501 | C | Landscape Details | 11/11/2024 | | 502 | B | Landscape Details, Specifications & Materials Schedule | 11/11/2024 |

4. Specialist reports and documents:

| Document | Ref No. | Issue | Prepared By | Dated | | Statement of Environmental Effects | N/A | N/A | Think Planners | 12/11/2024 | | Clause 4.6 Variation Request | N/A | N/A | Think Planners | 12/11/2024 | | Waste Management Plan | 23294 | N/A | Dickens Solutions Pty Ltd | November 2024 | | Air Quality Impact Assessment Report | 231161_AQIA_Rev4 | N/A | Benbow Environmental (Francesco Faustino, Prasanna Manoharan, & Richard Benbow) | 07/11/2024 | | Urban Design Study | 24_12 | N/A | Bonus + Associates | 07/11/2024 | | Traffic Impact Assessment | 0938402v02 | 2 | PDC Consultants | 11/11/2024 | | Plan of Management | N/A | 6 | Lynda Campbell | 11/11/2024 | | Acoustic Report | 2024-017-B | 2 | Anavs-Acoustic Noise & Vibration Solution Pty Ltd | 11/11/2024 | | Flood Risk Management Report | 240027 | 4 | Smart Structures Australia | 26/11/2024 | | NABERS Embodied Emissions Report | N/A | 1 | WD/TC | 11/11/2024 | | Remedial Action plan (RAP) | ER23051C | N/A | CEC Geotechnical | 04/10/2024 | | Statement of compliance access for people with a disability | 223256 | A | Accessible building solutions | 07/11/2024 | | Site Isolation Report | N/A | N/A | N/A | N/A | | Basix Certificate | 1743385M_02 | N/A | N/A | 11/11/2024 | | Geotechnical Response to Council Letter | GR23224 | N/A | CEC Geotechnical | 07/11/2024 | | Section J Report | N/A | B | Outsource Ideas | 05/11/2024 |

4. As part of the conciliation conference process the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent under s 4.16 of the EPA Act.

5. 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. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

Jurisdictional Prerequisites

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. 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 set out below.

7. The DA was lodged to the Respondent on 30 April 2024. I am satisfied that owners consent accompanied the DA as provided in the class 1 application. The Respondent notified the DA from 9 May 2024 to 6 June 2024. One submission was received in relation to parking. The amended DA was notified from 13 March 2025 to 20 March 2025 and received no submissions.

8. As the parties have entered into an agreement, the Court’s role is limited to considering legal matters and not the merits. In reaching agreement, the parties have advised that they have considered the merit concerns raised in the written objection from the first notification period.

Parramatta Local Environmental Plan 2023

9. The subject site is zoned E3 Productivity Support pursuant to the Parramatta Local Environmental Plan 2023 (PLEP), where the proposed uses for tourist and visitor accommodation, centre-based child care centre and commercial premises are permissible with consent.

10. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 demolition permits demolition with consent, as sought in the amended DA.

11. Clause 4.3 height of buildings applies which allows a maximum height of 21m. The jurisdictional statement and amended architectural plans prepared by CD Architects with various dates (architectural plans) show that the amended DA is 30.63m. The proposed variation is supported by a written request prepared by Think Planners dated 12 November 2024 (written request). I accept the parties’ agreement that the written request addresses the requirements of clause 4.6 in order to vary cl 4.3.

12. Clause 4.4 floor space ratio (FSR) applies and allows a maximum of 3:1. The architectural plans and jurisdictional statement stipulate that the proposed FSR is 2.99:1.

13. Clause 5.21 flood planning applies to the site. The amended DA is accompanied by a Flood Risk Management Report prepared by Smart Structures Australia dated 26 November 2024 (Flood Report) and Stormwater Management Plans prepared by Smart Structures Australia (Stormwater Plans). I accept that the amended DA does not impact on projected changes to flood behaviour from climate change, does not detrimentally impact on current flood behaviour, does not detrimentally impact on other development or properties or the environment, does not adversely impact on safe occupation or evacuation of people in a flood event, and appropriately manages stormwater.

14. Clause 6.1 acid sulfate soils applies as the site is identified as Class 4 soils. The amended DA is accompanied by an acid sulfate soils management plan prepared by CEC Geotechnical dated 24 January 2024 (Acid Sulfate Plan) that the parties agree meets the provisions.

15. Clause 6.2 earthworks applies as the proposed development includes excavation for a basement. I accept that the parties have considered the provisions as set out in the jurisdictional statement and supported by the Remedial Action Plan prepared by CEC Geotechnical dated 4 October 2024 (RAP), Acid Sulfate Plan, Geotechnical Investigation Report prepared by CEC Geotechnical dated 10 April 2024 and Waste Management Plan prepared by Dickens Solutions dated April 2024.

16. Clause 6.5 stormwater management applies to the proposed development. I accept that the stormwater plans demonstrate satisfactory stormwater management and avoids adverse impacts to adjoining properties and the environment.

17. Clause 6.7 essential services applies to the amended DA and I accept the parties agreement in the jurisdictional statement that all listed essential services are currently provided to the site and will continue.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

18. Chapter 6 applies to the site which is located in the Sydney Harbour Catchment. I accept the agreement of the parties that the provisions have been satisfied on the basis of the SEE, Flood Report and Stormwater Plans. The accompanying information details the water sensitive urban design approach of the design and the proposed development’s minimal, if any, impacts on water quality, aquatic ecology, flood waters and the wider catchment.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. The provisions of s 4.6 of SEPP RH apply to the site in relation to contamination. The amended DA is accompanied by a RAP in relation to the proposed uses and remediation strategy.

20. The RAP concludes that implementation of the proposed remediation strategies will render the site suitable for the proposed uses. The recommendations have been included in the conditions of consent at Annexure. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Sustainable Buildings) 2022

21. The amended DA is accompanied by an amended BASIX Certificate (1743385M_02) that the parties agree meets the provisions of the SEPP. The parties set out in the jurisdictional statement that s 2.1(5) is satisfied, which I accept on the basis of the BASIX Certificate, NABERS Embodied Emissions Report prepared by Certified Energy and Section J Report prepared by Outsource Ideas Pty Ltd that accompany the amended DA.

State Environmental Planning Policy (Transport and Infrastructure) 2021

22. Chapter 2 applies to the site as it has frontage to a classified road (Parramatta Road). The parties agree and I accept that ss 2.119(2) and 2.120 are met as vehicular access is provided from Carlotta Lane, the safety, efficiency and ongoing operation of the classified road will not be affected as set out in the jurisdictional statement and the proposed development has incorporated measures to ameliorate noise and emissions as set out in the Acoustic Report prepared by Anavs Acoustic, Noise & Vibration Solutions Pty Ltd dated 11 November 2024 (acoustic report) and Air Quality Impact Assessment Report prepared by Benbow Environmental dated 7 November 2024.

23. The proposed development is traffic generating development and was referred to Transport for NSW (TfNSW) for concurrence pursuant to s 2.122. TfNSW raised no concerns and provided conditions of consent that have been incorporated in the conditions of consent at Annexure A.

24. Chapter 3 Educational establishments and childcare facilities of SEPP TI applies to the proposed development.

25. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 and 3.26 of SEPP TI as shown on the architectural plans and outlined in the Statement of Environmental Effects prepared by Think Planners dated 12 November 2024 (SEE). Further, based on the agreed submissions from the parties in the jurisdictional statement and SEE, I have considered the provisions of ss 3.22, 3.23, 3.26, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

Heads of consideration

26. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

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.

28. 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.

29. I have considered the jurisdictional prerequisites, and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

30. The Court orders:

31. The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application DA/238/2024 pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $7,000.00, to be paid within 21 days of the date of these orders.

32. The appeal is upheld.

33. Development Application DA/238/2024, as amended, for demolition and construction of a mixed-use building comprising of a ground floor commercial tenancy, 106 serviced apartments and a 140-place child care facility at 99 Parramatta Road, Granville, is determined by the grant of consent subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

Annexure A

**********