Harutoonian Properties Pty Ltd v City of Parramatta Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Harutoonian Properties Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation: Counsel:
L Nurpuri (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Foteades Freeman Cohen (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s): 2025/212296

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought by the applicant under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No DA/586/2024 (DA) by City of Parramatta Council (Council). The DA seeks consent for the demolition of existing structures, tree removal and construction of three two-storey attached dual occupancy developments, landscaping and Torrens title subdivision at 3 – 7 Simpson Street, Dundas Valley, being the land comprised within Lots 422 to 424 in DP 36692 (site).

2. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 19 August 2025. I presided over the conciliation conference. After more time was given the parties indicated they had come to an agreement in relation to the terms of a decision in the proceedings that would be acceptable to the parties.

3. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, as amended, subject to agreed conditions. 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.

4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [62]-[65]).

5. The parties outlined matters of relevance through an agreed statement of jurisdictional prerequisites (SJP) provided to the Court on 11 September 2025 and updated on 12 September 2025, explaining how they believed the jurisdictional matters have or could be satisfied. Below, I attend to jurisdictional considerations mindful of this advice from the parties.

Jurisdiction

State Environmental Planning Policy (Resilience and Hazards) 2021

6. Section 4.6(1) requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed. The parties advise that the site has an extensive history of use for residential purposes. A use which is proposed to continue with this application. In any event, the parties advise that a Detailed Site Investigation Report did identify a “hot spot of zinc” (SJP par 21) which, consistent with proposed consent conditions, would be removed in accordance with a submitted Remediation Action Plan. The requirements of s 4.6(1) are met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

7. There is no requirement for a jurisdictional finding with respect to Chapter 2, concerned with vegetation removal. However, the statutory setting is different with respect to Chapter 6, which applies as the site is identified as falling within both the Sydney Harbour Catchment and the Hawkesbury-Nepean Catchment.

8. The parties advise of Amended Stormwater Plans by Vanguard Consulting Engineers Pty Ltd “which demonstrate that the proposed development will not result in an adverse impact on the Sydney Harbour Catchment or the Hawkesbury-Nepean Catchment” (SJP par 32). The SJP works through the various technical matters of relevance with respect to ss 6.6-6.10 and their conclusions that the quantity and quality of water will be managed at acceptable levels such that the quality of water entering natural waterbodies will be as close as possible to neutral or beneficial, and the impact on flow will not have any detrimental effect on natural waterbodies. I also note advice that the site is not flood liable land and, given its location, will not affect public access to or from natural water bodies for recreational purposes.

9. Given the advice of the parties on the range of relevant technical matters, I can conclude that I am satisfied with respect to the requirements of ss 6.6(2), 6.7(2) and 6.9(2) and that relevant consideration has been given to s 6.10 as the trigger for consultation with adjacent or downstream local government areas has not been reached.

Parramatta Local Environmental Plan 2023

10. The site is zoned R4 High Density Residential Zone and ‘Dual Occupancy (Attached)’ are permissible with consent under that zone. The application proposes demolition works and this is permissible with consent under cl 2.7. Subdivision is permissible under cl 2.6. I accept the advice of the parties that the proposal does not breach any development standards.

11. Clause 6.5 relates to stormwater. I accept the advice of the parties and am satisfied with respect to the matters at cl 6.5(2) given the particulars of the stormwater design scheme adopted for the site.

12. In respect to cl 6.7, I am satisfied that each of the relevant essential services are available, or that adequate arrangements have been made to make them available (including in relation to a registered stormwater easement), consistent with the advice of the parties.

13. Under cl 6.13(3) consent must not be granted unless the consent authority is satisfied the development exhibits design excellence. The parties believe the development does exhibit design excellence in accordance with cl 6.13 requirements. There reasoning aligns with the justification documented in the Statement of Environment Effects (SEE) prepared by Think Planners (Tab 4 of Class 1 Application filed on 3 June 2025). I accept that the provisions of cl 6.13(5) relating to a competitive design process do not apply. Otherwise, I have reviewed the arguments put in the SEE which provides responses to the range of considerations at cl 6.13(4). Consistent with the parties’ conclusions, on the facts before me, I find that I am satisfied the development exhibits design excellence.

Other matters for consideration under section 4.15(1) of the EPA Act

14. The parties advise the proposal was notified in accordance with requirements and that no submissions were received.

15. The parties’ SJP details the various other matters which have been given consideration to but which do not require jurisdictional findings by me.

Conclusion

16. Based on the above details, I am satisfied that there is no jurisdictional bar and the parties’ decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

17. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

18. The Court notes the advice of the parties that:

19. The City of Parramatta Council as the relevant consent authority has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application DA/586/2024 the subject of these proceedings as shown in the following amended plans and reports (referred to as "the amended DA"):

Architectural Drawings (Project No. 24-511) prepared by Design Planning Environments

| Drawing/Plan No. | Issue | Plan Title | Dated | | A-101 | J | Site Plan | 26.08.25 | | A-102 | J | Demolition Plan | 26.08.25 | | A-201 | J | Ground Floor Plan | 26.08.25 | | A-202 | J | Level 1 Floor Plan | 26.08.25 | | A-203 | J | Roof Plan | 26.08.25 | | A-204 | J | Area Calculations | 26.08.25 | | A-206 | J | Shadow Diagrams | 26.08.25 | | A-207 | B | Shadow Diagrams – Existing | 18.08.25 | | A-301 | J | Elevation Sheet 1 | 26.08.25 | | A-302 | J | Elevation Sheet 2 - Lot 3 | 26.08.25 | | A-303 | J | Elevation Sheet 3 - Lot 5 | 26.08.25 | | A-304 | J | Elevation Sheet 4 - Lot 7 | 26.08.25 | | A-401 | J | Section Sheet | 26.08.25 | | A-402 | J | Section Sheet 2 | 26.08.25 | | A-501 | J | Window Schedule | 26.08.25 |

Civil Drawings/Stormwater (Project No.VSW24744) prepared by Vanguard Consulting Engineers Pty Ltd

| Drawing/Plan No. | Issue | Plan Title | Dated | | SW01 | I | Cover Sheet | 22.08.25 | | SW02 | I | Specifications Sheet | 22.08.25 | | SW11 | I | Stormwater Plans Ground Level | 22.08.25 | | SW12 | I | Stormwater Plans Level 1 | 22.08.25 | | SW20 | I | Stormwater Details Sheet 1 | 22.08.25 | | SW21 | I | Stormwater Details Sheet 2 | 22.08.25 | | SW22 | I | Stormwater Details Sheet 3 | 22.08.25 | | SW23 | I | Stormwater Details Sheet 4 | 22.08.25 | | SW24 | I | Stormwater Details Sheet 5 | 22.08.25 | | SW30 | I | General Arrangement Plan Easement Earthworks | 22.08.25 | | SW31 | I | Long Sections | 22.08.25 | | SW32 | I | Cross Sections and Details | 22.08.25 |

Landscape Drawings (Project No. 240253) prepared by Dapple Designs

| Drawing/Plan No. | Issue | Plan Title | Dated | | LP01 – Sheet 1 of 6 | D | Landscape Plan | 27.08.25 | | LP01 – Sheet 2 of 6 | D | Plant List/Specification | 27.08.25 | | LP01 – Sheet 3 of 6 | D | Sections/Elevations | 27.08.25 | | LP01 – Sheet 4 of 6 | D | Sections/Elevations | 27.08.25 | | LP01 – Sheet 5 of 6 | D | Details | 27.08.25 | | LP01 – Sheet 6 of 6 | D | Details | 27.08.25 |

Survey Plan prepared by RGM Property Surveys

| Drawing/Plan No. | Issue | Plan Title | Dated | | 190981/001 | J | Plan Showing Levels & Detail Over Lots 422-425 in DP 36692 | 13.06.25 |

Specialist Reports

| Document | Ref No. | Issue | Prepared By | Dated | | Arboricultural Impact Assessment and Tree Management Plan | 242568.2 | | Redgum Horticultural | 1.09.25 | | Stormwater Letter | V24744 | | Vanguard Consulting Engineers Pty Ltd | 7.08.25 |

1. On 11 September 2025, the applicant filed with the Court a copy of the amended DA.

Orders

19. The Court orders:

20. The appeal is upheld.

21. Development Application DA/586/2024 (as amended) for the demolition of existing structures, tree removal and construction of three two-storey attached dual occupancy developments, landscaping and Torrens title subdivision on each lot at 3-7 Simpson Street, Dundas Valley is determined by the grant of consent subject to the conditions set out in Annexure "A" to this agreement.

22. The Applicant shall pay the Respondent's costs thrown away by reason of the amended DA in the agreed sum of $5,000 within 14 days of the date of these orders.

Peter Walsh

Commissioner of the Court

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Annexure A (465 KB, pdf)

Amendments

29 September 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), amendment has been made to Order (3) for the amount of $8500, in relation to costs thrown away, replaced with the amount $5000.