Top Tree Pty Ltd v City of Parramatta Council [2021] NSWLEC 1560

Land and Environment Court New South Wales

Medium Neutral Citation: Top Tree Pty Ltd v City of Parramatta Council [2021] NSWLEC 1560 Hearing dates: Conciliation conference 30 July, 24 and 31 August 2021, and 3 September 2021 Date of orders: 24 September 2021 Decision date: 24 September 2021 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [24] Catchwords: DEVELOPMENT APPLICATION – boarding house development – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2000, cl 55 Hornsby Local Environmental Plan 2013, cl 6.2 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 4, 27, 29, 30, 30A State Environmental Planning Policy No 55 – Remediation of Land, cl 7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Cases Cited: Hu v Northern Beaches Council [2020] NSWLEC 1525 Category: Principal judgment Parties: Top Tree Pty Ltd (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: V Conomos (Solicitor)(Applicant) C Nuttal (Solicitor)(Respondent)

Solicitors: Conomos Legal (Applicant) City of Parramatta Council (Respondent) File Number(s): 2021/113152 Publication restriction: No

Judgment 1. COMMISSIONER: This Class 1 Appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by the Parramatta Local Planning Panel on behalf of the City of Parramatta Council (the Respondent) of Development Application No. DA/180/2021 for the demolition of existing structures, tree removal and construction of a two storey boarding house containing twelve boarding rooms with at-grade car parking and associated landscaping works at 73 Kent Street, Epping (the site). 2. 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 30 July 2021, and at which I presided. 3. The conciliation conference was held on MS Teams, at which the parties reached in-principle agreement on the matters in contention, subject to the resolution of a number of matters which the parties' advised me were capable of resolution. I adjourned the conciliation conference to allow the parties to continue to resolve those matters. 4. I granted a further adjournment on 24 August to permit the finalising of amended plans, and adjourned the conciliation on 31 August 2021 to facilitate the lodgement of the amended application on the NSW Planning Portal in accordance with cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), and the filing of the amended application with the Court, in accordance with s 8.15(3) of the EPA Act. 5. I directed that the agreement and other documents be filed with the Court no later than 3 September 2021. Further directions were also made on 10 September 2021 and a signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 17 September 2021. 6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 7. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 8. 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. 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. 9. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the following environmental planning instruments: * Hornsby Local Environmental Plan 2013 (HLEP) * State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) * State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) * State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 1. I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the reasons that follow. 1. The site is located within land zoned R2 Low Density Residential according to the HLEP, that permits boarding house development with consent where it is consistent with the following objectives for development in the zone: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. On the basis of the Cut and Fill diagram (architectural plan Dwg 008 Rev 1), and the Ground Floor Drainage Plan (Dwg D02, Rev E), I have considered the earthworks proposed in accordance with cl 6.2 of the HLEP.

State Environmental Planning Policy (Affordable Rental Housing) 2009 1. Clause 29 of the Affordable Housing SEPP sets out standards that, if met, cannot be used as a basis for refusal of the development application. I am satisfied that the standards are achieved, other than the locating of the private open space in the front setback which is an aspect of the standard at subcl (2)(d). 2. I am also satisfied that the standards for boarding houses at cl 30 of the Affordable Housing SEPP are met. 3. In considering whether the design of the development is compatible with the character of the local area, pursuant to cl 30A of the Affordable Housing SEPP, the Court is assisted by statements at p 14 of the Statement of Environmental Effects, and the agreed position of the parties that the built form of the proposed development presents as a large two-storey dwelling house when viewed from Kent Street, which is compatible with the existing built form on the western side of Kent Street. 4. Clause 27(2) provides that cll 29, 30 and 30A apply in an area zoned R2 if the subject site is within an accessible area. 5. Clause 4(c) of the Affordable Housing SEPP defines 'accessible area' in the following terms: accessible area means land that is within— (a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or (b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday. 1. A bus stop is located approximately 165m from the site on Carlingford Road. The bus stop is served by a bus service that operates every day between the times required by cl 4(c). 2. I accept the parties' agreed position that the distance of the bus stop from the site, and the timetable and destination of the bus service serving the bus stop results in the site achieving the definition of being within an 'accessible area'. 3. I also accept the parties' agreed position that such a conclusion is consistent with the finding of the Court in Hu v Northern Beaches Council [2020] NSWLEC 1525, at [61].

State Environmental Planning Policy No 55 – Remediation of Land 1. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the assessment outlined on p 14 of the Statement of Environmental Effects, I am satisfied that the site is not contaminated.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1151734M_04), prepared by EPS dated 30 July 2021 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders 1. The Court notes that: 1. The Respondent, as the relevant consent authority, has pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, agreed to the proposed amended development application No DA180/2021. The proposed amended application is comprised of the following amended plans and documents: 1. The Amended architectural plans prepared by Texco Design, as referenced in condition 1 of Annexure A, being: Drawing No. Issue Plan Title Dated 003 01 Demolition Plan 06.07.2021 004 02 Site Plan 03.08.2021 008 01 Cut and Fill Diagram 06.07.2021 101 03 Ground Floor Plan 03.08.2021 102 03 Level 01 Plan 03/08/2021 103 02 Roof Plan 26/07/2021 201 03 Elevations 03/08/2021 301 02 Sections 26/07/2021 302 02 Detail Sections 26/07/2021 501 02 Window & Door Schedule 03/08/2021

1. Amended hydraulic plans prepared by Zait Engineering Solutions Pty Ltd, Revision E, dated 1 August 2021, as referenced in condition 1 of Annexure A; 2. Traffic Statement from Ross Nettle at Transport And Traffic Planning Associates dated 29 June 2021 regarding compliance with AS2890.1, as referenced in condition 1 of Annexure A; 3. BASIX Certificate No.1151734M_04 prepared by EcoPlus Consultants Pty Ltd dated 30 July 2021, as referenced in condition 1 of Annexure A. 1. The amended application was filed with the Court on 10 September 2021, and was lodged on the NSW Planning Portal on 2 September 2021. 1. The Court orders that: 1. Appeal is upheld. 2. Development consent is granted to development application 180/2021, as amended, for the demolition of existing structures and the erection of a boarding house comprising of twelve boarding rooms and associated carparking at premises known as 73 Kent Street, Epping, subject to the conditions contained in Annexure A.

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T Horton

Commissioner of the Court Annexure A (332835, pdf)

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