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[2025] NSWLEC 1580
General information, not legal advice.
Land and Environment Court (NSW)
2025-08-14
Miller AC
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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: Tohme v City of Parramatta Council [2025] NSWLEC 1580
Hearing dates: Conciliation conference 10 and 17 July 2025
Date of orders: 14 August 2025
Decision date: 14 August 2025
Jurisdiction: Class 1
Before: Miller AC
Decision: The Court orders:
(1) The Applicant is granted leave to amend the Development Application No. DA/22/2024 and rely on the amended plans and documents listed at Condition PA001 of Annexure A, copies of which are to be filed with the Court within 7 days of the date of these Orders.
(2) The appeal is upheld.
(3) Development Application No. DA/22/2024 for demolition of existing structures, tree removal and construction of a two storey 76 place centre based child care facility with basement parking for 19 vehicles, at 13 Cowells Lane, Ermington (Lot 1 in DP 30564) as amended, is determined by the grant of consent subject to conditions contained in Annexure ‘A’.
(4) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed sum of $4,526.00 within 28 days of the date of these Orders.
Catchwords: DEVELOPMENT APPLICATION — centre based child care facility with basement parking — conciliation conference — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38
Education and Care Services National Regulations 2012
Parramatta Local Environmental Plan 2023, cll 2.3, 4.3, 4.4, 6.1, 6.2, 6.5
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6
Category: Principal judgment
Parties: Paul Tohme (Applicant)
City of Parramatta Council (Respondent)
Representation: Counsel:
G Wee (Solicitor) (Applicant)
N Ferguson (Solicitor) (Respondent)
Solicitors:
New South Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)
File Number(s): 2025/101411
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application No. DA/22/2024 for the demolition of existing structures, tree removal and construction of a two storey 76 place centre based child care facility with basement parking for 19 vehicles as amended on land legally known as Lot 1 in DP30564 being 13 Cowells Lane, Ermington (site).
The Court was required to arrange a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference, which I presided over, was held on 10 and 17 July 2025.
At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was recorded in a signed agreement filed on 17 July 2025.
The decision agreed upon is for the grant of development consent for the amended application 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 Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in Condition PA0001 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.
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 are as set out below and listed under Condition PA001 of the conditions of consent at Annexure A. The parties advised that the application had been amended to address matters raised in the contentions including notably the provision of additional information and changes to the proposed stormwater management plan.
Architectural Drawings (Project No. 10203) prepared by Jansen Designs:
| Drawing No. | Issue | Plan Title | Dated | | A000 | D | Cover page | 3.6.2025 | | A003 | D | Demolition Plan | 3.6.2025 | | A004 | D | Site Analysis Plan | 3.6.2025 | | A005 | D | Basement Plan | 3.6.2025 | | A006 | D | Ground Floor Plan | 3.6.2025 | | A007 | D | First Floor Plan | 3.6.2025 | | A008 | D | Roof Plan | 3.6.2025 | | A009 | D | East Elevation (Streetscape) & Section | 3.6.2025 | | A009B | D | Sections | 3.6.2025 | | A010 | D | Nort, West & South Elevations | 3.6.2025 | | A017 | C | Cut and Fill Diagram | 23.5.2025 | | A019 | C | Emergency Evacuation Diagrams | 23.5.2025 | | A020 | C | Kitchen Detail Plan | 23.5.2025 | | A021 | C | Colour and Finish Schedule | 4.7.2025 |
Civil Drawings/Stormwater (Project No. 22718) prepared by Telford Civil:
| Drawing No. | Issue | Plan Title | Dated | | 000 | B | Cover Sheet Plan | 26/06/2025 | | 101 | B | Stormwater Concept Plan Basement Level Sheet 1 of 2 | 26/06/2025 | | 102 | B | Stormwater Concept Plan Basement Level Sheet 2 of 2 | 26/06/2025 | | 103 | B | Stormwater Concept Plan Ground Floor | 26/06/2025 | | 104 | B | Stormwater Concept Plan Site Plan | 26/06/2025 | | 105 | B | Stormwater Concept Hydraulic Analysis Catchment Plan | 26/06/2025 | | 106 | B | Stormwater Concept Hydraulic Analysis Model and Results | 26/06/2025 | | 107 | B | Stormwater Concept OSD/WSUD Catchment Plan, Calculation & Long Section | 26/06/2025 | | 108 | B | Stormwater Concept Plan First Floor | 26/06/2025 | | 109 | B | Stormwater Concept Plan Roof | 26/06/2025 | | 110 | B | On-Site Detention Details And Calculations Sheet 1 Of 2 | 26/06/2025 | | 111 | B | On-Site Detention Details And Calculations Sheet 2 Of 2 | 26/06/2025 | | 112 | B | Miscellaneous Details Sheet | 26/06/2025 |
Landscape Drawings prepared by Canvas Landscape Architects:
| Drawing/Plan No. | Issue | Plan Title | Dated | | DA-101 | A | Landscape + Play item layout plan: Ground fr | 26/06/2025 | | DA-L103 | A | Landscape Typical details, Proposed Plant Schedule & Maintenance Program | 26/06/2025 | | DA-201 | A | Landscape Sections | 26/06/2025 |
Specialist Reports:
| Document | Ref No. | Issue | Prepared By | Dated | | Waste Management Plan | - | - | Building International Pty Ltd | 05.03.2023 | | Plan of Management | - | D | Janssen Designs | July 2025 | | Acoustic Report | 2022-367 | Rev.3 | Acoustic, Noise & Vibration Solutions Pty Ltd | 18/06/20205 | | Traffic report | 250508.01FA | A | McLaren Traffic Engineering | 5/06/2025 |
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision 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 DA.
The site is zoned R2 Low Density Residential under Parramatta Local Environmental Plan 2023 (PLEP). The proposed development is permissible with consent in the zone, and I am satisfied that adequate regard has been had to the objectives of the zone in accordance with cl 2.3.
Clause 4.3 height of buildings applies to the site, permitting a maximum height of 9m. The parties agree that the proposal is compliant having a maximum height of 8.8m.
Clause 4.4 floor space ratio (FSR) applies to the site and the parties agree that the amended proposal complies with the maximum FSR having an FSR of 0.49:1 where 0.5:1 is permitted.
Clause 6.1 Acid Sulfate Soils (ASS) also applies to the site which is identified as containing Class 5 ASS. The site is not however within 500m of Class 1, 2, 3, or 4 ASS therefore in accordance with the provision no further assessment is required.
Further, cl 6.2 Earthworks applies and I accept on the basis of the parties’ agreement that the provisions of the clause have been considered as demonstrated in the Statement of Environmental Effects (Think Planners, 21 December 2023) and having regard to the recommended conditions of consent.
I am further satisfied in respect of the requirements of cl 6.5 Stormwater Management on the basis of the parties’ agreement, the amended stormwater concept plans (Telford Civil, 26/06/2025), and relevant conditions of consent.
The Education and Care Services National Regulations 2012 also apply to the proposal. The parties agree and I accept that, on the basis of the amended plans and the Statement of Environmental Effects prepared by Think Planners (21 December 2023), the relevant requirements have been complied with.
The development application is made with the consent of the owner of the site in accordance with s 23 of the EPA Reg.
The Respondent notified the original development application between 28 September and 28 October 2022. Fourteen (14) submissions were received in response to the notification. Further at the commencement of the conciliation conference eight (8) submitters addressed the Court in respect of their concerns over the proposed development. In reaching agreement, the parties have advised that consideration has been given to the concerns raised by the submitters.
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)).
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.
The Court orders:
The Applicant is granted leave to amend the Development Application No. DA/22/2024 and rely on the amended plans and documents listed at Conditions PA001 of Annexure A, copies of which are to be filed with the Court within 7 days of the date of these Orders.
The appeal is upheld.
Development Application No. DA/22/2024 for demolition of existing structures, tree removal and construction of a two storey 76 place centre based child care facility with basement parking for 19 vehicles, at 13 Cowells Lane, Ermington (Lot 1 in DP 30564) as amended, is determined by the grant of consent subject to conditions contained in Annexure ‘A’.
The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed sum of $4,526.00 within 28 days of the date of these Orders.
Annexure A (443 KB, pdf)
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Tohme
City of Parramatta Council [2025] NSWLEC 1580