Hammond v City of Parramatta Council [2021] NSWLEC 1421

Land and Environment Court New South Wales

Medium Neutral Citation: Hammond v City of Parramatta Council [2021] NSWLEC 1421 Hearing dates: Conciliation conference on 2 July 2021 Date of orders: 26 July 2021 Decision date: 26 July 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: Refer to orders at [13] Catchwords: DEVELOPMENT APPLICATION – construction of a carport – conciliation conference – agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979 Hornsby Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land cl 7 Category: Principal judgment Parties: Dianne Hammond (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: J Eun (Applicant) J Corradini-Bird (Solicitor) (Respondent)

Solicitors: Marsdens Law Group (Respondent) File Number(s): 2021/48090 Publication restriction: No

Judgment 1. COMMISSIONER: 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. 5/2020 for the construction of a carport with tilt door (the proposal) at 200A Ray Road, Epping (the site) by the City of Parramatta Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 July 2021. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. 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. 5. There are preconditions to the exercise of power to grant development consent for the proposal, including cl 6.3 of the Hornsby Local Environmental Plan 2013 (LEP 2013) raised as a contention in the matter. 6. The site is zoned R2 Low Density Residential pursuant to LEP 2013. The objectives of the R2 zone, to which regard must be had, are: • 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. The site is subject to the provisions of cl 6.3 Flood Planning of LEP 2013 because the site is identified as being located within part of the overland flood parcels and 100 year Hornsby Overland Parcels. The site contains a historical watercourse that traverses the site from south to north and is aligned with the access handle of the site. The watercourse through the site is popped within a culvert which traverses the site. The proposal is for a double carport within the overland flow path of the site. 2. Clause 6.3 requires that consent not be granted to development on land to which cl 6.3 applies, unless the consent authority (or the Court exercising the function of the consent authority) is satisfied of the following, at subcl (3): (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. 1. I am satisfied that the amended proposal is compatible with the flood hazard of the land because I accept the agreement of the parties that the carport is ancillary to the dwelling and is designed as an open structure that will not impede flood waters; the carport will prevent vehicles parked within the site from becoming flood borne debris in the event of a flood event and this may improve the chances of maintaining the dwelling during a flood event; and the carport will not contribute to avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or water courses. 2. I accept the agreement of the parties that the Council has considered whether the land is contaminated, pursuant to cl 7(1)(a) of State Environmental Planning Policy No 55 – Remediation of Land, and that the Council is satisfied that there is no evidence to suggest the land is contaminated. 3. The draft Parramatta Local Environmental Plan (draft LEP) has been exhibited and is a mandatory consideration pursuant to s 4.15(1)(a)(ii) of the EPA Act. The draft LEP consolidates the five existing LEPs that apply to land within the Parramatta local government area and does not otherwise change the provisions of LEP 2013. 4. I am satisfied that the parties' decision in the conciliation conference is a decision that the Court could have made in the proper exercise of its functions.