Land and Environment Court New South Wales Medium Neutral Citation: Denham Place 017 Pty Ltd v City of Parramatta Council [2022] NSWLEC 1102 Hearing dates: Conciliation Conference held on 21 February 2022 Date of orders: 25 February 2022 Decision date: 25 February 2022 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: 1) The appeal is upheld. 2) Development Application No. DA/648/2020 for the subdivision of land into two lots, associated stormwater management works, associated demolition works and tree removal at 8 Denham Place, Dundas is approved subject to the conditions at Annexure B. Catchwords: DEVELOPMENT APPLICATION – Torrens title subdivision – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Land and Environment Court Act 1979, ss 34, 34AA Parramatta Local Environmental Plan 2011 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy 55 – Remediation of Land, cl 7 Texts Cited: Parramatta Development Control Plan 2011 Category: Principal judgment Parties: Denham Place 017 Pty Ltd (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: M Harker (Applicant) D Loether (Solicitor) (Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2021/279836 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 648/2020 by the City of Parramatta Council (hereafter the Council) which, as amended, seeks removal of trees, demolition of select structures, Torrens title subdivision into two lots, and associated drainage/earth/civil works on Lot 28 DP 225001, also known as 8 Denham Place, Dundas (the site). Background 1. The DA was submitted to Council on 2 November 2020, and after notification, made consistent with the relevant planning controls, two submissions in objection were received during the notification period. 2. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), without an onsite view as agreed by the parties, and which was held by MS Teams. 4. The Council agreed for the applicant to amend the plans and documents that support and subsequently amend the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The amended DA was renotified, and no submissions were received. 5. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 648/2020, with conditions. 6. Pursuant to 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 its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA 648/2020, subject to conditions in Annexure 'B'. Jurisdictional prerequisites 1. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from all landowners for works proposed by the DA. 2. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been assessed by the Court: 1. Parramatta Local Environmental Plan 2011 (PLEP): 1. Pursuant to the PLEP, the proposed subdivision is situated over land zoned R2 Low Density Residential. The proposed subdivision, as described to the Court is permissible with consent within the land use zone. The amended DA sufficiently addresses all the relevant objectives, aims, standards, and requirements of the PLEP. 1. State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure): 1. Due to proximity to the rail corridor, development on the site is subject to the provisions of the SEPP Infrastructure. The parties agree that the amended proposal is consistent with the relevant provisions, and the conditions of consent adopt the GTA's provided from Transport for NSW. 1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55): 1. Pursuant to cl 7 of the State Environmental Planning Policy 55 – Remediation of Land (SEPP 55), the site must be deemed suitable or can be made suitable for the proposed use, prior to grant of consent. Based on the supporting documents to the amended DA, the Court is satisfied that the applicant has provided sufficient evidence, which is supported by the agreed conditions of consent, to address the requirements of cl 7 of SEPP 55. The Court is advised that the site has historically been used for residential purposes. 1. Parramatta Development Control Plan 2011 (PDCP): 1. The Council agrees that the relevant requirements of the PDCP are generally complied with, based on the amended plans, supporting documents to the DA, and conditions of consent. The original proposed development was publicly notified in accordance with the PDCP, and two submissions were received. These submissions have been considered and are addressed satisfactorily, according to Council, in the resolution of the appeal. Grant of consent 1. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to making of the agreement, or for the Court in making the orders, as sought. 2. The Council has undertaken the appropriate merit assessment of the proposed subdivision. 3. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement, and that DA 648/2020 can be granted, as it satisfies the relevant requirements of s 4.15 of the EPA Act. 4. 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. 5. The Court notes that: 1. The City of Parramatta Council as the relevant consent authority has agreed under clause 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) to the Applicant amending the Development Application DA/648/2020, the subject of these proceedings, to rely on the documents specified in Annexure A. 2. The Applicant has uploaded the amended application on the NSW Planning Portal on 21 February 2022. 3. The Applicant has filed the amended application with the Court on 18 and 21 February 2022. 4. The Respondent agrees to upload the development consent on the NSW Planning Portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of formal orders being issued by the Court. 1. The Court orders that: 1. The appeal is upheld. 2. Development Application No. DA/648/2020 for the subdivision of land into two lots, associated storm water management works, associated demolition works and tree removal at 8 Denham Place, Dundas is approved subject to the conditions at Annexure B. Sarah Bish Commissioner of the Court Annexure A (16668, pdf) Annexure B (439798, 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: 01 March 2022