Land and Environment Court New South Wales Medium Neutral Citation: Parade Apartments Pty Ltd v Penrith City Council [2023] NSWLEC 1706 Hearing dates: Conciliation conference 16 November 2023 Date of orders: 23 November 2023 Decision date: 23 November 2023 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) The applicant is to pay the respondent's costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (2) The appeal is upheld. (3) Development consent is granted to Development Application DA2022/0665 for the demolition of four existing dwellings and the construction of a five storey residential flat building comprising 65 apartments and two levels of basement car parking including 88 car parking spaces, on-site waste collection, ground level open space, associated civil works and landscaping at 7-11 Worth Street and 33 Rodley Avenue, Penrith, subject to conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPEAL – residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, ss 29, 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, cll 4, 28, 30 Penrith Local Environmental Plan 2010, cll 2.3, 2.7, 4.1A, 4.3, 7.1, 7.4, 7.6, 7.7, 7.30, State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, 2015 Category: Principal judgment Parties: Parade Apartments Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) D Le Breton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Applicant) File Number(s): 2022/332974 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), being an appeal against the deemed refusal of development application No. 22/0665 for the demolition of four existing dwellings and construction of a five storey residential flat building with basement car parking at 7-11 Worth Street and 33 Rodley Avenue, Penrith, legally known as Lots 17, 24 and 25 in DP 32844, Lot 23 DP 33490 (site). 2. The proceedings were set down for a hearing on 15-17 November 2023. The parties agreed that following the joint conferencing of the experts, preparation of further technical reports, changes to the proposed development and agreed conditions of consent, that the contested issues had been resolved. The parties therefore requested that the proceedings be adjourned and listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act). 3. The Court granted the request and arranged a conciliation conference between the parties, which was held on 16 November 2023. I have presided over the conciliation conference. 4. The respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending development application No. DA22/0665 in accordance with the documents listed at [24] (amended application). The amended application is described as the demolition of four existing dwellings and the construction of a five storey residential flat building comprising 65 apartments and two levels of basement car parking, including 88 car parking spaces, on-site waste collection, ground level open space, associated civil works and landscaping. 5. 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. This decision involved the Court upholding the appeal for the amended application and granting development consent to the amended application, subject to conditions of consent. 6. I note that as part of the filed s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 7. 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. 8. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. Jurisdictional Prerequisites 1. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below. 2. The development application was lodged on 25 July 2022. I am satisfied that owners consent accompanied the development application. 3. The Respondent notified the development application between 15 August to 29 August 2022. One submission was received. The written submission has been considered by Council as the consent authority. Penrith Local Environmental Plan 2010 1. The subject site is zoned R4 High Density Residential pursuant to the Penrith Local Environmental Plan 2010 (PLEP). The proposed development for a residential flat building is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. 2. The parties agree and I accept that the relevant provisions of the PLEP have been met by the amended application, as set out below: * Clause 2.7 Demolition requires consent, which forms part of the amended application; * Clause 4.1A Minimum lot sizes for dual occupancies, multi dwelling housing and residential flat buildings prescribes a minimum lot size of 800m2. With consideration of the Statement of Environmental Effects prepared by DMPS Planning filed to the Court 7 November 2022 (SEE), the site is 2,782m2 and meets cl 4.1A; * Clause 4.3 Height of buildings prescribes a maximum height of 18m. With consideration of the amended architectural plans prepared by Tony Owen Partners filed 16 November 2023 (amended plans), the amended application at 17.75m, does not exceed the maximum height; * Clause 7.1 Earthworks applies and has been adequately addressed in the SEE, Geotechnical Report prepared by EI Australia dated 17 June 2022, stormwater engineering plans at Annexure A and conditions of consent at Annexure A; * Clause 7.4 Sustainable development applies. I have had regard to the principles in cl 7.4 and that these have been demonstrated through the Quantitative Natural Ventilation Assessment prepared by SLR Consulting Australia dated 16 November 2023 (Ventilation Report), SEE, the Supplementary Statement of Environmental effects prepared by DMPS filed 16 November 2023 (SSEE) and urban design and town planning joint expert report (UD/TP JER); * Clause 7.6 Salinity applies to the site and has been addressed by the amended application with consideration of the SEE and Preliminary Site Investigation report prepared by EI Australia dated 12 April 2022; * Clause 7.7 Servicing applies and has been adequately satisfied as the development will have access to water, sewerage and public amenities as demonstrated within the SEE and conditions of consent at Annexure A; * Clause 7.30 Urban heat applies to the site. The parties agree and on the basis of the SSEE, ESD Assessment report prepared by Senica dated 1 September 2023, the Ventilation Report and conditions of consent at Annexure A, the urban heat design measures of cl 7.30(3)(a)-(e) have been incorporated and the clause satisfied. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 2 Vegetation in non-rural areas of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the amended application includes removal of vegetation. The parties agree and I accept with consideration of the Arboricultural Impact Assessment prepared by CPS dated 23 February 2023 that the provisions of Ch 2 are met. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The parties agree and I am satisfied that the amended application is accompanied by a BASIX Certificate that meets the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development 1. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment (SEPP 65) Development applies to the proposed development in accordance with cl 4. 2. Clause 28 requires consideration of the design quality of the development in accordance with the design quality principles within Sch 1 and the Apartment Design Guide (ADG). Clause 30(2) requires that adequate regard must be had to the same provisions. Relevantly, s 29 of the EPA Reg requires that residential apartment development must be accompanied by a design statement prepared by a qualified designer in relation to the design quality principles within Sch 1 of SEPP 65 and the ADG. 3. Clause 28(2)(a) requires consideration of advice received from the relevant design review panel. The parties agree that the advice has been addressed by the amended application. 4. The parties agree and I accept that the amended application meets the provisions of SEPP 65 on the basis of the amended Design Statement completed by the nominated qualified designer Tony Owen (registered architect No 7080) dated 14 November 2023. State Environmental Planning Policy (Resilience and Hazards) 2021 1. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The parties agree and I am satisfied with consideration of the PSI and the SEE that s 4.6 has been adequately addressed. 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. 3. I have considered the jurisdictional prerequisites 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. 4. The Court notes that the Respondent has agreed, as the relevant consent authority, under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending development application No.22/0665 to rely upon the following amended plans and documents: Plan Name Drawing number Revision Date Prepared by Amended Architectural Plans Location plan 1 A001b I 27 October 2023 Tony Owen Partners Land Use & Green Space Diagram A003 F 3 February 2023 Tony Owen Partners Amenities & Services Diagram A004 F 3 February 2023 Tony Owen Partners Streetscape A005 F 3 February 2023 Tony Owen Partners Site Photos 1 A002a F 3 February 2023 Tony Owen Partners Site Photos 2 A002b F 3 February 2023 Tony Owen Partners Surrounding Existing Urban Characters A006 F 3 February 2023 Tony Owen Partners Façade Articulation zone A007 F 3 February 2023 Tony Owen Partners Landscape Plan A007a I 27 October 2023 Tony Owen Partners Aesthetics A007b I 27 October 2023 Tony Owen Partners Demolition Plan A015 F 3 February 2023 Tony Owen Partners Site Plan A008 I 27 October 2023 Tony Owen Partners Site Analysis A009 I 27 October 2023 Tony Owen Partners Setback Concept Diagram A010 H 28 August 2023 Tony Owen Partners Basement Setback Diagram A011 I 27 October 2023 Tony Owen Partners GF Setback Diagram A012 I 27 October 2023 Tony Owen Partners L1-L3 Setback Diagram A013 I 27 October 2023 Tony Owen Partners L4 Setback Diagram A014 I 27 October 2023 Tony Owen Partners B2 Floor Plan A100 J 16.11.2023 Tony Owen Partners B1 Floor Plan A101 J 16.11.2023 Tony Owen Partners GF Floor Plan A102 J 16.11.2023 Tony Owen Partners L1 Floor Plan A103 J 16.11.2023 Tony Owen Partners L2-L3 Floor Plan A104 J 16.11.2023 Tony Owen Partners L4 Floor Plan A105 J 16.11.2023 Tony Owen Partners Roof Plan A107 I 16.11.2023 Tony Owen Partners East Elevation A200 I 16.11.2023 Tony Owen Partners West Elevation A201 J 16.11.2023 Tony Owen Partners North Elevation A202 I 27 October 2023 Tony Owen Partners South Elevation A203 I 27 October 2023 Tony Owen Partners Section 1-1 A300 J 16.11.2023 Tony Owen Partners Section 2-2 A301 J 16.11.2023 Tony Owen Partners Section 3-3 A302 J 16.11.2023 Tony Owen Partners Ramp Section A302 I 27 October 2023 Tony Owen Partners Detail Sections A310 I 27 October 2023 Tony Owen Partners Detailed Section A331 J 16.11.2023 Tony Owen Partners Adaptable Unit Plans 1 A400 I 27 October 2023 Tony Owen Partners Adaptable Unit Plans 2 A401 I 27 October 2023 Tony Owen Partners Silver Level Units A405 F 03.02.2023 Tony Owen Partners Communal Open Space Diagram A410 I 27 October 2023 Tony Owen Partners Landscape Diagram A411 I 27 October 2023 Tony Owen Partners Deep Soil Diagram A412 I 27 October 2023 Tony Owen Partners Site Coverage Diagram A413 I 27 October 2023 Tony Owen Partners Ventilation Diagram A414 I 27 October 2023 Tony Owen Partners C.O.S Solar Diagram A415 I 27 October 2023 Tony Owen Partners On-Going Waste Management Plan A416 I 27 October 2023 Tony Owen Partners Construction Waste Management Plan A417 I 27 October 2023 Tony Owen Partners 3D Solar Diagram A600 I 27 October 2023 Tony Owen Partners Solar Diagram A601 I 27 October 2023 Tony Owen Partners Solar Angle Diagram A610 I 27 October 2023 Tony Owen Partners Shadow Diagram A620 I 27 October 2023 Tony Owen Partners Shadow Diagram A621 I 27 October 2023 Tony Owen Partners Perspective A700 J 16.11.2023 Tony Owen Partners Perspective A701 J 16.11.2023 Tony Owen Partners Unit Breakdown Schedule A800-A801 I 27 October 2023 Tony Owen Partners External Finishes Schedule A900 I 27 October 2023 Tony Owen Partners Amended Stormwater Plans Cover Sheet SW100 J 02.11.23 SGC Stormwater Drainage Design - Specification Sheet SW101 J 02.11.23 SGC Stormwater Drainage Design – Basement 02 plan SW200 J 02.11.23 SGC Stormwater Drainage Design - Basement 01 plan SW201 J 02.11.23 SGC Stormwater Drainage Design – Ground Floor Plan 1 SW202 J 02.11.23 SGC Stormwater Drainage Design - Ground Floor Plan 2 SW203 J 02.11.23 SGC Stormwater Drainage Design – Roof plan SW204 J 02.11.23 SGC Stormwater Drainage Design – Details Sheet 1 of 2 SW300 J 02.11.23 SGC Stormwater Drainage Design – Details Sheet 2 of 2 SW301 J 02.11.23 SGC Erosion and Sediment Control - Plan & Details SW400 J 02.11.23 SGC MUSIC Catchment Plan - Plan & Details SW500 J 02.11.23 SGC Amended Landscape Plans Cover Sheet F371_LP_00 H 13.11.23 CPS Existing tree plan F371_LP_01 H 13.11.23 CPS Landscape Concept Plan F371_LP_02 H 13.11.23 CPS Cross Sections F371_LP_03 H 13.11.23 CPS Area Diagram – Tree Soil Volume F371_LP_04a H 13.11.23 CPS Tree Planting Plan F371_LP_05a H 13.11.23 CPS Planting Plan F371_LP_05b H 13.11.23 CPS Landscape Planting Imagery F371_LP_06 H 13.11.23 CPS Landscape Character Imagery F371_LP_07 H 13.11.23 CPS Irrigation Plan F371_LP_08 H 13.11.23 CPS Fencing Typology Plan F371_LP_09 H 13.11.23 CPS Details and Preliminary Specification F371_LP_10 H 13.11.23 CPS Details F371_LP_11 H 13.11.23 CPS Reports Schedule of amendments prepared by Tony Owen Partners dated 13 November 2023 Land owners Consent letter dated 7 November 2023 Amended Design Verification Statement prepared by tony Owen Partners dated 14 November 2023 Supplementary Statement of Environmental Effects prepared by DMPS dated 14 November 2023 Quantitative Natural Ventilation Assessment prepared by SLR dated 16 November 2023 Amended BASIX Certificate prepared by Vipac Engineers and Scientists Amended Access assessment prepared by Morris Goding Access Consulting dated 15 November 2023 Amended BCA Assessment prepared by Technical Inner Sight dated 15 November 2023 1. The Applicant submitted the amended application and final s 34 agreement with the Court on 16 November 2023. Orders: 1. The Court orders that: 1. The applicant is to pay the respondent's costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The appeal is upheld. 3. Development Consent is granted to Development Application DA2022/0665 for the demolition of four existing dwellings and the construction of a five storey residential flat building comprising 65 apartments and two levels of basement car parking including 88 car parking spaces, on-site waste collection, ground level open space, associated civil works and landscaping at 7-11 Worth Street and 33 Rodley Avenue, Penrith, subject to conditions of consent at Annexure A. ………………………. S Porter Commissioner of the Court Annexure A (335479, 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: 23 November 2023