Huang v City of Parramatta Council

Category: Principal judgment

Parties: Wen Qing Huang (First Applicant)
Ching Yin Chung (Second Applicant)
City of Parramatta Council (Respondent)

Representation: Counsel:
C Ters (Solicitor) (Applicants)
D Loether (Solicitor) (Respondent)
Solicitors:
Ters Legal (Applicants)
Bartier Perry (Respondent)

File Number(s): 2025/248588

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by the City of Parramatta Council of Development Application DA 589/2024 for the demolition of existing structures include tree removal and construction of a two storey dwelling with basement and associated landscaping on land at 15 Edwin Street, Oatlands NSW 2117 (Lot 24 DP 30647) (the Site).

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference, which I presided over, was held on 18 November 2025.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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 one that the Court could have made in the proper exercise of its functions.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Statement together with the documents referred to therein, the Amended Class 1 Application and its attachments, the joint town planning report filed in the proceedings, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 18 November 2025 and are listed under condition 1 of the conditions of consent at Annexure A.

6. I note that key changes made to the application which have led to the respondent now being satisfied in respect of the contentions include: a reduction in the floor space of the proposed building, an increase in the rear setback, and an increase in landscape area.

Jurisdictional matters

7. As the presiding Commissioner I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

Parramatta Local Environmental Plan 2023

8. The development works are for the purposes of a dwelling and ancillary works which is a permissible use in the R2 Low Density Residential zone in which the site is located pursuant to Parramatta Local Environmental Plan 2023 (PLEP).

9. The consistency of the proposal with the objectives of the R2 Low Density Residential zone has been considered as required by cl 2.3 of PLEP and the proposal has been assessed as being consistent with those objectives including specifically:

10. To provide for the housing needs of the community within a low density residential environment,

11. To maintain the low density residential character of the area, and

12. To protect and enhance tree canopy, existing vegetation and other natural features.

13. The development complies with cl 2.7 of PLEP as development consent is sought for the proposed demolition.

14. The proposed development complies with the maximum permissible height limit of 9m in accordance with cl 4.3 of PLEP, having a maximum height of 7.51m.

15. The proposed development does not comply with the maximum floor space ratio of 0.5:1, which applies to the site in accordance with cl 4.4 of PLEP, having a floor space ratio of 0.58:1. A variation request in accordance with cl 4.6 of PLEP has therefore been submitted seeking to vary the floor space ratio development standard. I am satisfied that consent should be granted notwithstanding the contravention of the floor space ratio development standard having regard to the circumstances of the case. In particular I am satisfied that:

16. The written request, dated 11 November 2025 prepared by Paro Consulting, lodged pursuant to cl 4.6 of the PLEP adequately establishes sufficient environmental planning grounds that justify the breach in the floor space ratio development standard, and

17. The written request demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the standard notwithstanding the non-compliance and that it will not result in any adverse impacts.

18. I am satisfied on the basis of the parties’ agreement, the Geotechnical Assessment (KFM Geotechnic, 15 July 2024) and the recommended conditions of consent that consideration has been given to the matters required to be considered prior to the granting of development consent to earthworks under cl 6.2 of PLEP.

19. I am also satisfied that the proposal complies with cl 6.5 of PLEP in respect of stormwater management having regard to the agreement of the parties’, the stormwater plans and stormwater design certificate (both dated 11 November 2025) prepared by YP Engineering, and the recommended conditions of consent.

20. Clause 6.7 of PLEP provides that development consent must not be granted unless the consent authority is satisfied that essential services (including water, electricity, sewage, stormwater drainage and vehicular access) are available, or that adequate arrangements have been made to make them available, for the proposed development. I am satisfied on the basis of the existing use of the site that essential services are available to the land.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. Consideration has also been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree that the site has a long history of residential use and that therefore contamination is unlikely. A preliminary site investigation is not required in accordance with s 4.6(2) in this instance as a change of use is not proposed. Accordingly, the requirements of the RH SEPP are satisfied.

State Environmental Planning Policy (Sustainable Buildings) 2022

17. The proposal is BASIX development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) apply. A BASIX Certificate was submitted with the original application as required by s 27 of the EPA Reg and an updated certificate has been prepared by GL ESD Consulting (Cert No 1759586S_02 dated 13 November 2025). Further the embodied emissions of the development have been quantified as required by s 2.1(5) of the SB SEPP.

Other Matters

18. Owner’s consent to the lodgement of the application has been provided in accordance with the requirements of s 23(1) of the EPA Reg*.*

19. The development application, in its original form, was notified between 12 and 26 November 2024. Two submissions were received in respect of the application. The parties have advised that the issue raised in the submissions have been considered in assessment of the application and in the amendments.

Conclusion

20. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

21. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

22. The orders of the Court are:

23. The appeal is upheld.

24. Development consent is granted to Development Application No DA 589/2024 for the demolition of existing structures include tree removal and construction of a two storey dwelling with basement and associated landscaping on land at 15 Edwin Street, Oatlands NSW 2117 (Lot 24 DP 30647) subject to the conditions contained in Annexure.

H Miller

Acting Commissioner of the Court

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Annexure A (288 KB, pdf)