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[2025] NSWLEC 1225
General information, not legal advice.
Land and Environment Court (NSW)
2025-04-10
Washington C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: JS Architects Pty Ltd v City of Parramatta Council [2025] NSWLEC 1225
Hearing dates: Conciliation conference on 25 March 2024
Date of orders: 10 April 2025
Decision date: 10 April 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The written requested prepared by Urbanism Pty Ltd made pursuant to clause 4.6 of the Parramatta Local Environmental Plan 2023 relating to the minimum lot size development standard in section 25(g) of State Environmental Planning Policy (Housing) 2021 is upheld.
(2) Pursuant to s 8.15(3), the applicant is to pay the Respondent’s costs thrown away in these proceedings, in the agreed amount of $20,000.
(3) The appeal is upheld.
(4) Development Application No. DA/330/2023 for the demolition of existing structures, site preparation and excavation works, tree removal, and the construction of a 2 storey boarding house containing 9 x 2 person rooms, a manager’s room, basement parking and associated landscaping at 135 Victoria Road Parramatta (Lot 46 DP 8016) is determined by the grant of development consent subject to conditions set out in Annexure A.
Catchwords: DEVELOPMENT APPLICATION – boarding house – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulations 2021, s 38
Parramatta Local Environmental Plan, cl 4.3, 4.4, 4.6, 6.1, 6.5, 6.7
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Housing) 2021, ss 23, 25, 26
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119
Category: Principal judgment
Parties: JS Architects Pty Ltd (Applicant)
City of Parramatta (Respondent)
Representation: Counsel:
R O’Gorman Hughes (Applicant)
J Palmer (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Pikes and Verekers Lawyers (Respondent)
File Number(s): 2023/268375
Publication restriction: No
COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Parramatta Council, of Development Application DA/330/2023 which seeks consent for the demolition of existing structures and construction of a two storey boarding house with basement parking.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The matter was listed for hearing on 25 and 26 March 2025. At the commencement of this hearing, the parties indicated that the issues in contention had been resolved, and requested a further conciliation conference under s 34(1)] of the Land and Environment Court Act 1979 (LEC Act). This was arranged and held on the 25 March 2025.
At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to adequately respond to Council’s contentions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. 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, which the parties identified and explained, and from this I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 12 June to 12 July 2023, during which time one submission was received. The application was then amended by leave of the Court and further notified, during which time one submission was also received. From the parties’ submission, I accept that the issues raised by these objectors have been considered in the further amendments of the application.
State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) s 4.6 requires the consent authority to consider whether a site is contaminated, and if it is, to be satisfied that the site can be made suitable for the intended use. From the parties’ submission, the Preliminary Site Investigation by Geotesta dated 12 May 2023, and the agreed conditions of consent, I accept that the site is, or can be made suitable for the intended purpose following remediation.
The only street frontage for the subject site is Victoria Road, which is a classified road. Pursuant to the requirements of s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I), based on the Traffic Report by Terrafic Pty Ltd dated 24 May 2023 and the parties’ submission, I accept that vehicle access from this road is the only option, however the road and access design is such that the safety, efficiency and ongoing operation of the highway will not be adversely affected by the development in any of the ways listed in s 2.119(2)(b). Further, Transport for NSW has provided concurrence, subject to recommended conditions that have been incorporated into the agreed conditions of consent.
Further, as required by s 2.119(2)(c), the parties submit, and I accept, that the development is designed to adequately ameliorate potential traffic noise and vehicle emissions within the site arising from the Hume Highway, based on the parties’ submissions, the Acoustic Report by Acoustic Works dated 23 May 2023 and the agreed conditions of consent.
The subject site is located within the Sydney Harbour Catchment and therefore Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies. From the parties’ submission and letter from Michael Bou Rada of MBR Consulting dated 25 March 2025, I accept that the requirements of Ch 6 of the SEPP B&C relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).
Pursuant to the requirements of s 23 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP), development for the purposes of boarding houses may be carried out with consent if it is permitted with consent under another environmental planning instrument. Accordingly, the site is zoned R3 Medium Density Residential pursuant to the Parramatta Local Environmental Plan 2023 (PLEP), within which development for the purpose of boarding houses is permitted with consent.
Section 25 of the Housing SEPP provides standards for boarding houses that must be satisfied in order to grant consent. From the parties’ submission and the Town Planning letter provided by Wesley Folitarik of Urbanism Planning and Development, dated 24 March 2025, I accept that all requirements identified in s 25 are met, except for minimum lot size.
Section 25(g) of the Housing SEPP sets a minimum lot size for boarding houses within the R3 zone of 800m2. The subject site does not meet this minimum standard, with an area of 695.6m2. Accordingly, the application is accompanied by a written request to vary this standard, made pursuant to cl 4.6 of the PLEP prepared by Urbanism Planning and Development dated 18 October 2024 (the written request). This request must demonstrate that compliance with the minimum lot size standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. Pursuant to PLEP cl 4.6, I am satisfied that:
The cl 4.6 request demonstrates that compliance with the minimum lot size standard in Housing SEPP s 25 (g) is unreasonable and unnecessary because the proposal complies with the relevant objectives of the R3 Medium Density Residential zone, notwithstanding the non-compliance. Further, although s 25 does not contain objectives, it does provide considerations at s 25 (2), which the cl 4.6 request demonstrates are met with the proposed development.
The cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the standard by demonstrating that development on a lot of this size:
(a) Complies with all key density and amenity controls within the relevant planning instruments, including FSR, indoor and outdoor communal open space, minimum and maximum room size, landscaping, and building separation. (b) Does not result in any adverse impacts on adjoining properties. (c) Does not result in a building that is excessive in terms of density, bulk and scale within its context, nor incompatible with the streetscape.
The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of the zone and the considerations of the standard.
Condition 116 of the agreed conditions of consent satisfy the requirement under s 26 of the Housing SEPP that the boarding house will be used for affordable housing and managed by a registered community housing provider.
Pursuant to PLEP cl 4.3, a maximum building height of 11m applies to the subject site. The proposed development complies with this development standard with a maximum height of 8.45m.
PLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.6:1. The proposed development again complies with this development standard with a maximum FSR of 0.52:1.
The site is also not identified in the flood planning area.
Pursuant to PLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, however is not within 500m of adjacent class 1, 2, 3 or 5 land that is below 5m Australian Height Datum.
From the parties’ submissions, the Stormwater Plans revision H by MBR Consulting Engineers dated 24 March 2025, and the letter of Michale Bou Rada dated 25 March 2025, I accept that the stormwater-related requirements of PLEP cl 6.5 have been met.
As the site is located in an established area, and it contains an existing residential dwelling, I accept the parties’ submissions that all essential services are, or can be made available to the proposed development when required as per PLEP cl 6.7.
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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
The Respondent has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant’s application for an amendment to Development Application No. DA/330/2023 to rely on the following plans and documents:
(a) Architectural Plans, prepared by JS Architects Pty Ltd project number 042-22/23, Sheets 1-43, Revision I, dated 24 March 2025. (b) Landscape Plans prepared by Naddi Designs numbered LA 00, LA 01, LA 02, LA 03, LA 04 and LA 05 being Revision E, dated 10 March 2025. (c) Revised s. 4.6 Variation Request of Urbanism Planning and Development dated 18 October 2024. (d) Stormwater Plans of MBR Consulting Engineers Pty Ltd (Revision H), dated 24 March 2025. (e) Structural Drawings, prepared by In-House Engineers (Revision H), dated 24 March 2025. (f) Geotechnical Site Investigation Report of Geotesta dated 18 March 2025 (g) Revised Groundwater and Hydrogeological Assessment Report of Geotesta dated 17 March 2025
The Court orders:
The written requested prepared by Urbanism Pty Ltd made pursuant to clause 4.6 of the Parramatta Local Environmental Plan 2023 relating to the minimum lot size development standard in section 25(g) of State Environmental Planning Policy (Housing) 2021 is upheld.
Pursuant to s 8.15(3), the applicant is to pay the Respondent’s costs thrown away in these proceedings, in the agreed amount of $20,000.
The appeal is upheld.
Development Application No. DA/330/2023 for the demolition of existing structures, site preparation and excavation works, tree removal, and the construction of a 2 storey boarding house containing 9 x 2 person rooms, a manager’s room, basement parking and associated landscaping at 135 Victoria Road Parramatta (Lot 46 DP 8016) is determined by the grant of development consent subject to conditions set out in Annexure A.
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JS Architects Pty Ltd
City of Parramatta Council [2025] NSWLEC 1225