Urban Link Architects Pty Ltd v City of Parramatta Council

Category: Principal judgment

Parties: Urban Link Architects Pty Ltd (First Applicant)
City of Parramatta Council (Respondent)

Representation: Counsel:
J Smith (Applicant)
T Ward (Solicitor) (Respondent)
Solicitors:
Reuben George Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 2024/316284

Publication restriction: Nil

JUDGMENT

Introduction

1. COMMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DAR/4/2023 for the construction of a single storey attached dual occupancy development with Torrens title subdivision in respect of land at 212 Windsor Road, Winston Hills (Lot 1 DP 194389) (the site) by the City of Parramatta Council.

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 197**9 (LEC Act). The conciliation conference, which I presided over, was held on 1 April 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 a decision 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 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 2 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 (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 1 April 2025 and are listed under Condition 2 of the conditions of consent at Annexure A.

Jurisdictional matters

6. 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:

State Environmental Planning Policy (Transport and Infrastructure) 2021

7. The site is located on a classified road (Windsor Road) and accordingly consent must not be granted to the development in accordance with s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 unless the consent authority is satisfied of the matters listed at ss (2) including matters is relation to access, safety and efficiency and the sensitivity of the proposed use to traffic noise and vehicle emissions. On the basis of the parties’ agreement and the letters prepared by Genesis Traffic (16 December 2022, 18 June 2023 and 9 September 2023) I am satisfied of the relevant matters.

State Environmental Planning Policy (Resilience and Hazards) 2021

8. Consideration has been given as to whether the site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree that the site has a long history of residential use and therefore contamination is considered unlikely. No change of use is proposed and therefore no further investigation in accordance with the RH SEPP is therefore required.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

9. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) applies to the proposed development. In accordance with s 27 of the EPA Reg. a BASIX certificate (1209009S_06 prepared by Ziad Boumelhem) was submitted with the development application. A condition of consent has also been included to ensure compliance. I am therefore satisfied that the requirements of the BASIX SEPP have been complied with.

Parramatta Local Environmental Plan 2011

10. The development is for the purposes of an attached dual occupancy development, which is a permissible use in the R2 Low Density Residential zone in which the site is located pursuant to Parramatta Local Environmental Plan 2011 (PLEP). This LEP applies to the development application having been saved in accordance with cl 1.8A of Parramatta Local Environmental Plan 2023.

11. The proposed Torrens title subdivision of an attached dual occupancy is also permissible with consent in accordance with cl 2.6 of PLEP.

12. The proposed development complies with the minimum lot size as specified under cl 4.1 of PLEP with the front lot (existing house) having an area of 554m2 (minimum of 550m2 required) and the rear lot (proposed attached dual occupancy) having an area of 670m2 excluding the access handle (minimum of 670m2 excluding access handle required).

13. The proposed development complies with the height of buildings development standard set out in cl 4.3 of PLEP which provides for a maximum height of 9m where the proposed attached dual occupancy has a maximum height of 4.5m.

14. The proposed development complies with the floor space ratio development standard set out in cl 4.4 of PLEP which provides for a maximum Floor Space Ratio (FSR) of 0.5:1 with Lot 1 having an FSR of 0.205, Lot 2A an FSR of 0.318:1 and Lot 2B an FSR of 0.256:1.

15. The site is located within proximity of a local heritage item (208 Windsor Road) listed under PLEP however in accordance with cl 5.10, on the basis of the parties’ agreement and heritage advice provided by Weir Phillips (and referred to in the Jurisdictional Statement) I am satisfied that consideration has been given to the effect of the proposed development on the heritage significance of the heritage item.

16. The site is mapped as having Class 5 Acid Sulfate Soils but is not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres the Australian Height Datum. Accordingly, no further assessment is required in accordance with cl 6.1 of PLEP.

17. I am satisfied on the basis of the parties’ agreement 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(3) of PLEP.

18. Clause 6.11 of PLEP requires a minimum lot size for a dual occupancy development in the R2 Low Density Residential zone of 600m2. The proposed rear lot (Lot 2) has an area of 670m2 and is therefore compliant. Further the land is not within the Dual Occupancy Prohibition area as shown on the relevant map.

Other Matters

19. The development application is made with the written consent of the owners of the site in accordance with s 23 of the EPA Reg. In this regard it is noted that in addition to owner’s consent for the development site itself, the owner’s consent has been provided to the works and drainage easement by the owners of 117 and 117A Model Farms Road, Winston Hills through which the site is to be drained.

20. The parties have advised that the Respondent notified the original development application and that one submission was received. In reaching the agreement, the parties have further indicated that consideration has been given to the concerns raised in the submission.

Conclusion

21. 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)).

22. 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

23. The orders of the Court are:

24. The appeal is upheld.

25. Development Application no. DAR/4/2023 for the construction of a single storey attached dual occupancy development with Torrens title subdivision in respect of land at 212 Windsor Road, Winston Hills (Lot 1 DP 194389) is determined by the grant of consent, subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

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Annexure A (550 KB, pdf)