Land and Environment Court New South Wales Medium Neutral Citation: Ausino Group Pty Ltd v City of Parramatta Council [2023] NSWLEC 1283 Hearing dates: Conciliation Conference on 2 June 2023 Date of orders: 08 June 2023 Decision date: 08 June 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. 1036/2021, as amended, for demolition of existing structures and construction of a boarding house containing sixty-seven (67) boarding rooms, over a level of basement parking, at 71-73 Thomas Street, Parramatta, is determined by the grant of consent, subject to conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – boarding house development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, ss 34, 39 Parramatta Local Environmental Plan 2011, cll 4.4, 4.6 Parramatta Local Environmental Plan 2023, cl 1.8A State Environmental Planning Policy (Affordable Rental Housing) 2009, Div 3, cll 28, 29, 30, 30A State Environmental Planning Policy (Housing) 2021 State Environmental Planning Policy (Housing) Amendment (Miscellaneous) 2022 Sch 7A, ss 1, 2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Cases Cited: Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Category: Principal judgment Parties: Ausino Group Pty Ltd (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: A Gough (Solicitor) (Applicant) D Loether (Solicitor) (Respondent) Solicitors: Storey & Gough (Applicant) Bartier Perry (Respondent) File Number(s): 22/192691 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. 1036/2021, as amended, for demolition of existing structures and construction of a boarding house containing sixty-seven boarding rooms, over a level of basement parking (the proposal), at 71-73 Thomas Street, Parramatta (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 June 2023. I presided over the conciliation conference. 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. 3. 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. 4. There are preconditions to the exercise of power to grant development consent for the proposal. Amended Plans 1. The Council, as the relevant consent authority, consented to the amendment of the application on 9 May 2023, pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021. 2. The amendments to the proposal included the following: 1. The removal of boarding rooms from the fifth storey and the reduction in the extent of building work upon this level. As a result the extent of non-compliance with the building height control was reduced. 2. A reduction in the number of boarding rooms from 72 to 67. 3. An increase in setbacks of the development to side and rear boundaries 4. An increase in landscaped area 5. Changes to the design of the basement parking level to facilitate lesser ramp gradients and greater aisle widths. 1. I accept the Council's submission that the amended proposal satisfactorily addressed the contentions raised by Council in the Statement of Facts and Contentions filed on 15 August 2022 and the reasons for refusal provided by the Parramatta Local Planning Panel. Planning framework 1. The site has historically been used for residential purposes (namely for single use dwellings) and there is no indication of contamination upon the property. The subject property would continue to be used for residential purposes following the grant of consent. I accept the Council's submission and I am satisfied that the site is suitable for the development, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. 2. The site is zoned R4 High Density Residential pursuant to the Parramatta Local Environmental Plan 2011 (LEP 2011) (cl 1.8A of the Parramatta Local Environmental Plan 2023) and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for high density residential development close to open space, major transport nodes, services and employment opportunities. • To provide opportunities for people to carry out a reasonable range of activities from their homes if the activities will not adversely affect the amenity of the neighbourhood. 1. The proposal has a building height of 14.48m in contravention of the applicable height of buildings development standard for the site of 12m. 2. On 26 March 2021, State Environmental Planning Policy (Housing) 2021 commenced, repealing State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). On 18 March 2022, State Environmental Planning Policy (Housing) Amendment (Miscellaneous) 2022 commenced and amended the savings and transitional provisions within (SEPP ARH). Sections 1 and 2 in Sch 7A apply to save SEPP ARH. 3. Division 3 of SEPP ARH applies to the proposal and pursuant to cl 28, the proposal is permissible with development consent. 4. I accept the Council's submission that the proposal complies with the floor space ratio (cl 29(1) of SEPP ARH and cl 4.4 of LEP 2011) and the standards under cl 30 of SEPP ARH. 5. Pursuant to cl 30A of SEPP ARH, the consent authority, or the Court exercising the functions of the consent authority, must consider whether the design of the development is compatible with the character of the local area. The amended proposal has the appearance of a modestly scaled residential flat building and its design is compatible with the character of the local area. The proposed development has a suitable building form and height that is consistent with the context and scale of other development in the locality providing a good transition from development to the north to higher density development to the south. Contravention of the height of buildings development standard 1. The proposal has a maximum height above existing ground level of 14.48m to the lift overrun. The height of buildings development standard for the site is 12m. 2. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by Chapman Planning, dated 11 April 2023 and filed on 5 May 2023. 3. Clause 4.6(4) of LEP 2011 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ("Initial Action")). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposed development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. 1. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2011 (Initial Action at [29]). The applicant's written request to contravene the height of buildings development standard 1. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard 1. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 at [4]). 2. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ("Wehbe") and repeated in Initial Action [17]-[21]: 1. The objectives of the development standard are achieved notwithstanding non-compliance with the standard; 1. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 2. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 3. the development standard has been abandoned by the council; 4. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers). 1. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]). 2. The applicant's written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary because the proposal has been designed to conform to the topography of the site, including the additional Gross Floor Area (GFA) afforded by the incentive provisions of SEPP ARH. The proposal presents to Thomas Street as a three-storey building, consistent with the planning controls contained in LEP 2011. 3. The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]). 4. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that justifying the aspect of the development that contravenes the development standard as a means to accommodating the addition GFA afforded by SEPP ARH for the proposal in a building envelope that is broadly consistent with the context and the planning controls can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23]. Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone 1. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]). 2. I accept and adopt the reasons presented in the written request demonstrating that the proposal is consistent with the zone and development standard objectives in LEP 2011. For those reasons, I am satisfied that the proposal is consistent with the zone and development standard objectives. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 1 June 2023 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 1036/2021, as amended, for demolition of existing structures and construction of a boarding house containing sixty-seven (67) boarding rooms, over a level of basement parking, at 71-73 Thomas Street, Parramatta, is determined by the grant of consent, subject to conditions of consent at Annexure A. Susan O'Neill Commissioner of the Court Annexure A ********** 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: 08 June 2023