Karimbla Properties (No. 59) Pty Limited v City of Parramatta Council [2023] NSWLEC 1365

Land and Environment Court New South Wales

Medium Neutral Citation: Karimbla Properties (No. 59) Pty Limited v City of Parramatta Council [2023] NSWLEC 1365 Hearing dates: 19-21 April 2023 Date of orders: 13 July 2023 Decision date: 13 July 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: Proceedings 2022/142290: The orders of the Court are: (1) The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development Consent No. 314/2017 for a 30-storey mixed use tower building with a five-storey basement (concept approval only) is modified by Modification Application No. 314/2017/A, subject to the consolidated conditions of consent at Annexure A. (4) The exhibits, other than exhibits 1, 2, 3, A, B, C and Q, are returned. Proceedings 2022/142281: The orders of the Court are: (1) The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development Application No. 1128/2021 for the Stage One early works associated with the construction of a mixed-use development, including site clearing and removal of 12 trees including two street trees, excavation to accommodate a five-storey basement, and construction of associated shoring, retaining walls and drainage works, is determined by the grant of consent, subject to the conditions of consent at Annexure B. Proceedings 2022/142308: The orders of the Court are: (1) The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development Application No. 1/2022 for a Stage Two detailed design of the concept approval (as modified by Modification Application No. 314/2017/A) for the construction of a 30 storey mixed use building comprising five levels of basement parking providing 299 car parking spaces (264 residential and 31 visitor spaces), two storey commercial podium (containing one retail unit, a 60 place centre-based child care facility and commercial office space) and residential tower above, comprising 204 residential units, landscaping and public domain works, is determined by the grant of consent, subject to the conditions of consent at Annexure C. Catchwords: MODIFICATION OF CONCEPT APPROVAL, STAGED DEVELOPMENT APPLICATIONS – shop top housing development with concept development approval – modification of the concept development approval – development application for Stage One early works – development application for Stage Two detailed design – whether the modified development is substantially the same as the original concept approval – proposed car parking exceeds maximum car parking rate – design excellence – a written request to contravene a development standard is not required when there is a concept development approval in force for the development, pursuant to s 4.24(2) of the Environmental Planning and Assessment Act 1979 Legislation Cited: Environmental Planning and Assessment Act 1979, Div 4.4, ss 4.5, 4.15, 4.21, 4.24, 4.55, 8.7, 8.9, 8.15 Hornsby Local Environmental Plan 2013, cll 4.3, 4.6, 6.8 Land and Environment Court Act 1979, s 34 Parramatta Local Environmental Plan 2023, cl 1.8A Standard Instrument (Local Environmental Plans) Order 2006, cl 4.6 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 4, 30 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.122 Cases Cited: Arrange v Inner West Council [2019] NSWLEC 85 Pirasta Pty Ltd v Parramatta City Council [2019] NSWLEC 1627 Texts Cited: Department of Planning & Environment, Apartment Design Guide, 2015 Great Sydney Commissioner, Greater Sydney Regional Plan, March 2018 Hornsby Development Control Plan 2013 Roads and Traffic Authority, Guide to Traffic Generating Developments, October 2002 Category: Principal judgment Parties: Karimbla Properties (No. 59) Pty Limited (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: I Hemmings SC with J Farrell (Applicant) A Seton (Solicitor) (Respondent)