Land and Environment Court of New South Wales CITATION : Wyarra Properties Pty Limited v Parramatta City Council [2007] NSWLEC 403 APPLICANT Wyarra Properties Pty Limited PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10340 of 2007 CORAM: Moore C Development Application :- KEY ISSUES: Isolated sites Development potential Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Parramatta Local Environmental Plan 2001 Parramatta Development Control Plan 2005 CASES CITED: Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] 136 LGERA 111 DATES OF HEARING: 3 July 2007 EX TEMPORE JUDGMENT DATE : 3 July 2007 APPLICANT Mr N Hemmings QC, solicitor Allens Arthur Robinson LEGAL REPRESENTATIVES: RESPONDENT Mr P Marincowitz, solicitor DLA Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 3 July 2007 07/10340 Wyarra Properties Pty Limited v Parramatta City Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of Development Application 1014/2006 lodged with Parramatta City Council (the Council) on 8 November 2006. 2 The application proposes the demolition of an existing house and outbuildings at 155 Carlingford Road, Epping (the site) and the subsequent construction of 9 townhouses on the resultant cleared site. 3 The site has an area of 1042 sq m with a frontage of approximately 36 m to Carlingford Road and a depth of nearly 57 m. It is rectangular in shape. 4 The area is zoned 2(b) under the Parramatta Local Environmental Plan 2001 (the LEP) and the development is permissible with consent. 5 To the site's west are two further houses also zoned 2(b) – these are 159 Carlingford Road and 28 Orchard Street. 6 From the original Statement of Facts and Contentions from the Council, the principal (and now sole) unresolved matter between the Council and the applicant related to whether or not the provisions, contained i the Council's Parramatta Development Control Plan 2005 (the DCP) and concerning sites being left isolated by development, were able to be satisfied. 7 The Council contends that 159 Carlingford Road and 28 Orchard Street would be left as such isolated sites. 8 The applicant has led evidence from a registered valuer, Mr T Stamoulis. At the conclusion of Mr Stamoulis' evidence, the Council, conceded that the DCP's provision requiring a fair market value offer to be made for the acquisition of those two sites would result (the Council accepting that the calculation model used by Mr Stamoulis and its values were appropriate) in offer a fair market offer that was one which no reasonable person would possibly accept for those two properties. 9 I am therefore the satisfied that the first Design Principle, P1 of Part 4.1.11 of the DCP is satisfied. 10 The second element, Design Principle, P2 of Part 4.1.11 of the DCP, is that the applicant will be required to demonstrate that an orderly and economic use and development of the separate sites can be achieved. 11 There is no doubt that the proposal for the present site satisfies that test. 12 As to the two sites that will, on the Council's position, be isolated, it was Mr Stamoulis' evidence (the accuracy which is now conceded by the Council) that the highest and best use for each of those allotments is as single residential dwelling sites. That is what presently exists. 13 I am satisfied that answers Design Principle P2. 14 Having been satisfied on those two matters, there is no need for me to go further with that issue (which is no longer in contention by the Council). 15 The matters that were raised by the objectors and to which I am obliged to have regard pursuant to section 79C of the Act fall into two distinct categories. 16 The first are matters of detail concerning or capable of being dealt with consideration of the plans. 17 These matters principally related to the properties immediately contiguous with the site – being 153 Carlingford Road; 159 Carlingford Road; 28 Orchard Street and 26 Orchard Street – this latter property being zoned 2(a) – a lower density residential zone. 18 I am satisfied that, during the course of the inspection and discussion of those issues between Mr Hemmings QC, solicitor for the applicant and those instructing and advising him, on one hand and, on the other hand, Mr Marincowitz, solicitor for the Council, those instructing and advising him and those objectors, all those matters of detail have been resolved to the satisfaction of those who have raised them. 19 To the extent that there are other residual matters of concern (the second category of objector issues), these relate to traffic, parking, development density, appearance and the like. 20 I am satisfied that they arise because of the terms of the Council's instruments – either the density of the 2(b) zone and/or the DCP's controls for the 2(b) zone. 21 The site is at the boundary between two residential zones. There is a necessary tension (which I do not need to traverse in detail in these proceedings) for developments that are located on the more intense use side of this boundary. 22 There is a requirement, dealt with by a planning principle enunciated by the Court, for a degree of sympathetic consideration of that fact (see Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] 136 LGERA 111). 23 I am satisfied that the application has had regard to this and it remains an appropriate development. The proposal is complaint to all but an extremely minor extent. 24 I accept that the objectors honestly and genuinely hold these additional concerns. However, the terms of the Council's controls themselves are not matters that it is appropriate for the applicant to consider. Further, they are matters which I am, by virtue of the jurisdiction of the Court, unable to deal with or comment upon. 25 There are, then, no unresolved matters of objection outstanding which are capable of falling within the Court's consideration of this application. 26 I am satisfied that the application should be approved and the orders of the Court will give effect to that approval – subject to the filing of revised plans and the filing of revised settled conditions (in order to give effect to the matters of agreement reached during consideration of the objectors' detailed concerns. Tim Moore Commissioner of the Court 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.