Land and Environment Court New South Wales Medium Neutral Citation: Parasher v Camden Council [2024] NSWLEC 1009 Hearing dates: Conciliation conference on 22 December 2023 Date of orders: 17 January 2024 Decision date: 17 January 2024 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of amending the development application, in the amount of $10,000 within 42 days of the date of these orders. (2) The appeal is upheld. (3) The applicant's written request pursuant to s 4.6 of Appendix 5 of State Environmental Planning Policy (Precinct – Western Parkland City) 2021, seeking a variation to the development standard for maximum building height prepared by Tudor Planning and Design, dated August 2023 is upheld. (4) Development consent is granted to development application number DA2022/802/1, for the demolition of existing structures and construction of a four-storey residential flat building comprising 63 apartments and three-storey townhouses comprising 18 units, with basement car parking, landscaping, road construction, drainage works, servicing and associated site works at Lot A in DP336688 and Lot C in DP375004, also known as 47 Ingleburn Road, Leppington, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential flat building – multi-dwellings – 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, ss 34, 39 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021 State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 5, ss 2.3, 4.1B, 4.3, 4.6, 5.9, 6.1 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 4, 28, 30, Sch 1 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, 2015 Camden Council, Design Review Panel Terms of Reference and Operational Procedures Category: Principal judgment Parties: Ajay Parasher (First Applicant) Angela Parasher (Second Applicant) Camden Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicants) C Campbell (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicants) Sparke Helmore (Respondent) File Number(s): 2023/9916 Publication restriction: Nil 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. DA2022/802/1 for the demolition of existing structures and construction of a residential flat building and multi-dwelling housing development consisting of 63 apartments and 17 three storey multi-dwellings with basement parking, associated civil engineering works and landscape works (development application) at Lot A in DP 336688 and Lot C in DP 375004, also known as 47 Ingleburn Road, Leppington (site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 22 December 2023. I have presided over the conciliation conference. 3. The respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending development application DA2022/802/1 in accordance with the documents listed at [27] (amended application). 4. 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. 5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 6. 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. 7. 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. I am satisfied that owners consent accompanied the development application. 3. The development application was lodged to the respondent on 25 August 2022. The respondent notified the development application between 4 September 2022 to 18 September 2022. No submissions were received. State Environmental Planning Policy (Precincts—Western Parkland City) 2021 1. The site is subject to the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (SEPP Western Parkland City). Appendix 5 Camden Growth Centres Precinct Plan (Precinct Plan) applies. 2. The site is zoned R3 Medium Density Residential under SEPP Western Parkland City. The proposed development is permissible with consent. Pursuant to s 2.3, I have had regard to the objectives of the zone. 3. Section 4.1B Residential density of the Precinct Plan applies to the site. The parties agree and I accept that the amended application is above the minimum density of 25 dwellings per hectare, at 116 dwellings per hectare. 4. Section 4.3 Height of buildings applies to the site, setting a maximum height of 12m. The amended application is 13.98m and is accompanied by an updated s 4.6 written request prepared by Tudor Planning and Design dated 7 August 2023 (written request) to contravene the height development standard. The parties agree and I accept that the written request satisfies the provisions of s 4.6. 5. Section 5.9 Preservation of trees of the Precinct Plan applies to the amended application. With consideration of the Landscape Plans prepared by Studio IZ Pty Ltd dated 7 August 2023, I accept the parties' agreement that the provisions have been met. 6. Section 6.1 Public Utility Infrastructure of the Precinct Plan applies to the proposed development. The parties agree that water, electricity and sewer is currently available and I accept that the requirements of s 6.1 have been satisfied. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development 1. Due to the lodgement date of the development application, the now repealed State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development in accordance with Sch 7A(1)(a) and (2) of State Environmental Planning Policy (Housing) 2021. 2. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment (SEPP 65) applies to the proposed development in accordance with cl 4 of SEPP 65. 3. Clauses 28 and 30(2) 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). Relevantly, s 29 of the EPA Reg 2021 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. 4. Clause 28(2)(a) requires consideration of advice received from the relevant design review panel. The parties advise that the development application was considered by the Camden Design Review Panel (Panel) at the pre-lodgement stage, which I note is consistent with the respondent's Design Review Panel Terms of Reference and Operational Procedures. Pursuant to s 39(6) of the LEC Act, an appeal can be determined in the absence of the Panel's advice for the development application. 5. The parties agree and I accept that the amended application meets the provisions of SEPP 65 on the basis of the SEPP 65 Design Quality Principles Statement completed by the nominated qualified designer Georges Jreije (registered architect No 10993) dated 10 January 2024. 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 amended application is accompanied by a Preliminary Site Investigation report prepared by NG Child & Associates dated 6 May 2022 which states that the site is not contaminated and is suitable for the proposed development. Accordingly, the parties agree and I am satisfied that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The parties agree and I am satisfied that the amended application is accompanied by an amended BASIX Certificate that meets the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conclusion 1. 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. 2. 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. 3. 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. 4. The Court notes that the respondent has approved, as the relevant consent authority, under s 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development Application No. DA2022/802/1 to rely upon the following amended plans and documents: Plan Number and Revision Plan description Dated Architectural Plans prepared by Urban Link DA-0000, Issue H Cover 04/08/2023 DA-0001, Issue H Calculations 04/08/2023 DA-0002, Issue H Context Plan 04/08/2023 DA-0003, Issue H Context Analysis 04/08/2023 DA-0004, Issue H Existing Context with Proposed Road Widening 04/08/2023 DA-0005, Issue H Net Development Area 04/08/2023 DA-0006, Issue H Site Analysis 04/08/2023 DA-0007, Issue H Site Coverage 04/08/2023 DA-0008, Issue H Site Plan 04/08/2023 DA-0101, Issue H Ground Floor 04/08/2023 DA-0102, Issue H Level 1 04/08/2023 DA-0103, Issue H Level 2 04/08/2023 DA-0104, Issue H Level 3 04/08/2023 DA-0105, Issue H Roof Plan 04/08/2023 DA-0106, Issue H Basement 1 04/08/2023 DA-0201, Issue H Elevations 04/08/2023 DA-0202, Issue H Byron Rd Streetscape 04/08/2023 DA-0203, Issue H Ingleburn Rd Streetscape 04/08/2023 DA-0301, Issue H Sections 04/08/2023 DA-0302, Issue H Sections 04/08/2023 DA-901, Issue H Photomontage 1 04/08/2023 DA-902, Issue H Photomontage 2 04/08/2023 DA-903, Issue H Photomontage 3 04/08/2023 DA-904, Issue H Photomontage 4 04/08/2023 DA-905, Issue H Photomontage 5 04/08/2023 DA-1401, Issue H GFA Diagrams 04/08/2023 DA-1402, Issue H Adaptable Units 04/08/2023 DA-1403, Issue H Deep Soil 04/08/2023 DA-1404, Issue H Communal Open Space Ground Floor 04/08/2023 DA-1405, Issue H COS Solar Access Diagrams 04/08/2023 DA-1406, Issue H View from the Sun 04/08/2023 DA-1407, Issue H Shadow Diagrams Winter 04/08/2023 DA-1408, Issue H Height Plane 04/08/2023 DA-1409, Issue H Photomontage 04/08/2023 DA-1410, Issue H Storage – Ground & Level 04/08/2023 DA-1411, Issue H Storage – Level 02 & Level 04/08/2023 LA-000, Issue D Cover Sheet 07.08.2023 LA-100, Issue D Landscape Plan – Sheet 1 07.08.2023 LA-101, Issue D Landscape Plan – Sheet 2 07.08.2023 LA-102, Issue D Landscape Plan – Sheet 3 07.08.2023 LA-103, Issue D Landscape Plan – Sheet 4 07.08.2023 LA-200, Issue D Landscape Section – Sheet 1 07.08.2023 LA-201, Issue D Landscape Section – Sheet 2 07.08.2023 LA-300, Issue D Design Intent Images 07.08.2023 LA-400, Issue D Planting Palette 07.08.2023 LA-500, Issue D Details and Specification Notes 07.08.2023 20D11_D2_C000 Cover Sheet, Drawing Schedule, Notes and Locality Sketch 13.07.2023 20D11_D2_C100 Ground Floor Detail Plan – Interim 13.07.2023 20D11_D2_C101 Basement Detail Plan 13.07.2023 20D11_D2_C102 Ground Floor Detail Plan – Future 13.07.2023 20D11_D2_C110 Typical Sections 13.07.2023 20D11_D2_C150 River Mint Avenue Cross Sections 13.07.2023 20D11_D2_C151 River Mint Avenue Long Section 13.07.2023 20D11_D2_C200 Stormwater Miscellaneous Details and Pit Lid Schedule 13.07.2023 20D11_D2_C201 OSD Plan, Sections and Details 13.07.2023 20D11_D2_C202 Water Quality Tank Plan and Details 13.07.2023 20D11_D2_C250 Stormwater Catchment Plan 13.07.2023 20D11_D2_SE01 Sediment and Erosion Control Plan 13.07.2023 20D11_D2_SE02 Sediment and Erosion Control Details 13.07.2023 20D11_D2_BE01 Bulk Earthworks Cut and Fill Plan 13.07.2023 20D11_D2_BE02 Build Earthworks Sections 13.07.2023 513-23-ROAD, Revision [00] Plan of Subdivision of Lot A DP336688 04.10.2023 Orders: 1. The Court orders: 1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of amending the development application, in the amount of $10,000 within 42 days of the date of these orders. 2. The appeal is upheld. 3. The applicant's written request pursuant to s 4.6 of Appendix 5 of State Environmental Planning Policy (Precinct – Western Parkland City) 2021, seeking a variation to the development standard for maximum building height prepared by Tudor Planning and Design, dated August 2023 is upheld. 4. Development consent is granted to development application number DA2022/802/1, for the demolition of existing structures and construction of a four-storey residential flat building comprising 63 apartments and three-storey townhouses comprising 18 units, with basement car parking, landscaping, road construction, drainage works, servicing and associated site works at Lot A in DP336688 and Lot C in DP375004, also known as 47 Ingleburn Road, Leppington, subject to the conditions of consent at Annexure A. S Porter Commissioner of the Court Annexure A ********** Amendments 23 January 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule"), correction to typographical error in 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: 23 January 2024