Wong v City of Parramatta Council [2024] NSWLEC 1597 | Case summary

Land and Environment Court (NSW)|2024-09-11

JUDGMENT

COMMISSIONER: These proceedings arise following an application to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent DA/968/2021 (the consent) in Wong v City of Parramatta Council [2023] NSWLEC 1596. That decision granted approval to the demolition of the existing structures, tree removal and construction of a 5-storey boarding house containing twenty-four (24) rooms with three (3) levels of basement parking and associated landscaping at 14 Cunningham Street, Telopea (Lot 114 in DP 36691).
Application DA/968/2021/A (the modification application) proposes to make the following amendments to the approved development: 1. To reduce the number of onsite parking spaces from 15 to five (5); 2. To increase the off-street motorcycle and bicycle parking provisions; 3. Reduce the number of basement and lower ground parking levels from three (3) to one (1); and 4. Reconfiguration of lower ground floor parking layout.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 September 2024. I presided over the conciliation conference. At the conciliation conference agreement was reached between the parties to approve the modification application. The terms of the parties' agreement is outlined in in their executed s34 written agreement.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court's power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters:

Substantially the same: s 4.55(2)(a) of the EPA Act

The modification application was made pursuant to s 4.55(8) of the EPA Act. The jurisdictional requirements for the modification application are contained in s 4.55(2) of the EPA Act.
The parties submit, and I accept, that the development to which the consent as proposed to be as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). In forming that view, I have had regard to the following:

Quantitatively the changes are focussed on a component of the development, namely the provision of parking, motorbike and bicycle parking. The remainder (the majority) of the development remains unchanged.
The modification application does not propose any change to the use, overall appearance, scale or form of the proposed development. There be no perceived changes to the development when viewed from the public domain.

I am satisfied that on the basis of the amendments made by the applicant, that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified).

Consultation: s 4.55(2)(b) of the EPA Act

The second jurisdictional requirement under s 4.55(2)(b) of the EPA Act relates to consultation with relevant approval bodies.
The original development application was referred to Water NSW. The consent was subject to conditions imposed as a result of the concurrence of Water NSW. The modification application seeks to reduce the extent of excavation required and as such will result in the same or lesser impact than the original application. The application was referred to Water NSW on 8 April 2024 and no objection to the application has been received.
The requirements of s 4.55(2)(b) of the EPA Act are met.

Notification: s 4.55(2)(c) of the EPA Act

The third jurisdictional requirement under s 4.55(2)(c) relates to the notification of the modification application. Notification was undertaken pursuant to section 10.4 of the City of Parramatta Community Engagement Strategy 2022-2024 which required the application to be exhibited for a minimum period of 28 days.
The modification application was notified between 8 April 2024 to 6 May 2024. Four (4) objections and three (3) petitions were received.

Consideration of submissions: s 4.55(2)(d) of the EPA Act

The concerns raised in the written submissions following the notification of the modification application include: 1. Appropriateness of the site for the proposed development and use of the site for a boarding house; 2. Concerns about car parking, proximity to public transport, traffic safety and congestion along Cunningham Street; 3. Social impacts arising from transient future residents and proximity to Telopea Public School; 4. Overshadowing and scale of the development; and 5. Retention of the use as affordable housing.
The key issue that is relevant to the modification application is the concerns raised in relation to the provision of car parking spaces as this is related to the changes in the development which are sought by the application.
As detailed in [4], in circumstances where the parties have reached agreement in proceedings the role of the Court is to ensure that the decision agreed is one which the Court could have made in the proper exercise of its functions. In this case the relevant matter to be satisfied is that the submissions have been considered in accordance with s 4.55(2)(d) of the EPA Act. The parties argue that these concerns have been considered and advance the following reasoning: 1. Concerns relating to access to public transport, traffic safety and congestion and availability of car parking on street are all addressed in the Assessment of Parking and Traffic Impacts prepared by Stanbury Traffic Planning which forms part of the modification application. The assessment confirms that: 1. The operation of Cunningham Street will not be adversely operated by the development, as modified; 2. The site is located within 400m of two (2) bus stops and is in close proximity to the Parramatta Light Rail and is well serviced by public transport; and 3. The reduction in car parking aligns with the new provisions in the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) which has reduced the rate of parking required to be provided. This reflects, at a policy level, the low car ownership rate for residents of boarding houses. Accordingly, the provision of car parking, as modified, is suitable for the needs of the development.
The requirements of s 4.55(2)(d) of the EPA Act are met.

Relevant matters in s 4.15(1) of the EPA Act: s 4.55(3) of the EPA Act

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

The consent was approved under the SEPP BASIX and comprised a boarding house that accommodated more than 12 people and had a gross floor area in excess of 300m2. SEPP BASIX did not apply to the development.
On 1 October 2023, the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Building SEPP) commenced and repealed the BASIX SEPP (s 4.1). The modification application does not introduce changes to the boarding house itself and it remains not a BASIX-affected building. As such, the Sustainable Buildings SEPP does not apply to the modification application.

State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH)

The consent was approved under the provisions of SEPP ARH. On 26 March 2021, SEPP Housing commenced, repealing SEPP ARH. The provisions of SEPP Housing would require the provision of 4.6 car spaces onsite. However, pursuant to Sch 7A, s 2(1)(da) of the SEPP Housing, the SEPP ARH continues to apply to the modification application.
The relevant provision in SEPP ARH is cl 29(2)(e)(iia) which provides that a consent authority cannot refuse to grant consent to the development application on the basis of insufficient parking if at least 0.5 parking spaces are provided for each boarding room. In applying this provision of SEPP ARH, a discretion remains to approve a fewer number of car spaces and grant consent to the application. The parties' agreement is for that discretion to be exercised. I am satisfied such a decision is within power: Luo v City of Parramatta Council [2023] NSWLEC 1009 at [31].
The modification application does not make any changes that would otherwise require any change to the existing assessment pursuant to the SEPP ARH.

Parramatta Local Environmental Plan 2023

The development application was approved under Parramatta Local Environmental Plan 2011 (LEP 2011). On March 2, 2023, the Parramatta Local Environmental Plan 2023 (LEP 2023) came into force and repealed LEP 2011. LEP 2023 applies to the modification application. The parties agree, and I accept, that there are no provisions of LEP 2023 that preclude the approval of the modification application.
The requirements of s 4.55(3) of the EPA Act are met.

Consideration of reasons given for the grant of consent: s 4.55(3) of the EPA Act

The reasons for granting consent are detailed in the judgment Wong v City of Parramatta Council [2023] NSWLEC 1596. The parties agree, and I accept, that the modification application does not seek to vary an essential element of the reasons for the grant of the original development consent.
In determining the modification application, I have taken into consideration the reasons given by the consent authority for the grant of consent.
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, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders.
The Court notes that: 1. The City of Parramatta Council, as the relevant consent authority, has approved, under s 113(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending modification application DA/968/2021/A in accordance with the documents listed below: Drawing No Drawing Title Date Prepared By Stormwater Plans 000 Cover Sheet Plan 14/06/2024 Telford Civil 101 Stormwater Concept Plan Lower Ground - Floor Plan Sheet 1 of 2 14/06/2024 Telford Civil 102 Stormwater Concept Plan Lower Ground - Floor Plan Sheet 2 of 2 14/06/2024 Telford Civil 103 Stormwater Concept Plan Ground Floor - Floor Plan 14/06/2024 Telford Civil 104 Inset plan, Site plan & Stormwater Longitudinal Section 14/06/2024 Telford Civil 105 On-Site Detention Details and calculation sheets 14/06/2024 Telford Civil 106 Miscellaneous Details Sheet 14/06/2024 Telford Civil Document Stormwater & OSD Documentation DA Checklist 14/06/2024

The Court orders that: 1. Consent is granted to Modification Application DA/968/2021/A and accordingly Development Consent DA/968/2021 granted by the Land and Environment Court on 11 October 2023 (LEC Proceedings No. 2022/229334) is modified in the terms set out in Annexure A, to reduce the number of parking spaces from 15 to 5 and reduce the number of basement and lower ground parking levels from 3 to 1 at 14 Cunningham Street, Telopea. 2. Development consent DA/968/2021, as modified, is set out in Annexure B. …………………….. D M Dickson Commissioner of the Court Annexure A (157604, pdf) Annexure B (412670, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2024

Wong v City of Parramatta Council

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