Global Organisation for Divinity v Parramatta City Council (No 2) [2011] NSWLEC 1028

Land and Environment Court New South Wales

Medium Neutral Citation: Global Organisation for Divinity v Parramatta City Council (No 2) [2011] NSWLEC 1028 Hearing dates: On the papers Decision date: 01 March 2011 Jurisdiction: Class 1 Before: Moore SC Decision: Increase front setback not required for porch element of the building; condition not varied Catchwords: Revised plans in light of principal decision Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Global Organisation of Divinity v Parramatta City Council [2011] NSWLEC 1027 Category: Principal judgment Parties: Global Organisation for Divinity (applicant) Parramatta City Council (respondent) Representation: Mr G McKee (applicant) McKees Legal Solutions

Mr P Marincowitz (respondent) Sparke Helmore File Number(s): 10704 of 2010

Judgment 1In my decision given in this matter (see Global Organisation for Divinity v Parramatta City Council [2011] NSWLEC 1027), I determined that it was appropriate that the agreement between the expert planners concerning the front setback of the building should be required to be implemented. That agreement required that the building be setback an additional 800 mm from the street and that the necessary internal adjustments to accommodate that be made in revised plans to be submitted to and settled with the council. 2The applicant has now submitted revised plans to the Council that adopt the additional setback for all elements of the substantive building but does not set back the entrance porch that additional distance. The applicant seeks my approval for the position now derived with no additional setback to the entrance porch. 3The legal representatives of the parties have made brief written comments on this proposition and have agreed that I should deal with this (and an issue concerning one of the conditions of consent) in chambers without further hearing. As a consequence, I have considered this matter on the basis of the revised plans and the short written submissions on behalf of the parties. 4The applicant's submission on this point is: Senior Commissioner would recall from the site inspection that the streetscape of Oakes Avenue (please refer to an aerial), within the visual catchment, is far from consistent. On the western side of Oakes Avenue there are a number of residences with a consistent 6-7m setback to the south of the site. To the south of those residences is a continuation of public open space. To the north of the proposed development, beyond the high tension electricity towers is public open space and then dwellings generally setback the required 7m or greater. On the eastern side Oakes Avenue dwellings have a 'jaggered' setback to Oakes Avenue. The planning purpose of the front setback is achieved and the open porch structure is an appropriate incursion with a practical purpose. 5On the other hand, the council's position on the setback of the porch is: The amended architectural drawings (Revision E) and the amended landscape drawing (Revision D) filed with the Court on 10 February 2011 contain a number of changes, all of which are settled as between the Applicant and the Respondent except for one change. That change relates to the increased setback of the front of the building from the street. The amended drawings show part of the building set back by an increased distance of 800mm when compared to the Revision C plans (Exhibit M). However, there is no increase in the setback of the porch which forms part of the front of the building. It is Council's submission that the porch should also be set back by 800mm. In that respect, Council refers to: (a) The second dot point in paragraph 41 of the Town Planner's joint report (exhibit 5); and (b) Contention 2 of Council's statement of facts and contentions (exhibit 1). 6The original agreement between the planners for an additional 800 mm setback at the street frontage for the proposed built form was to ensure appropriate compatibility of the built form in the streetscape in the vicinity. I have carefully examined the revised design (in both plan and elevation) and I am satisfied that the presently proposed version of the entrance porch, without the additional setback, is not offensive in the streetscape - given that it is now coupled with the setback of the substantive elements of the building. 7I have therefore concluded that, notwithstanding the agreement between the planners for a general 800 mm setback of the built form, the setback of the built form in the fashion now reflected in the revised plans is an acceptable outcome in the local streetscape context. 8The second matter that I am asked to determine, without further hearing, concerns condition 12 of the proposed conditions of consent. That condition is in the following terms: 12. Access out of the site must be restricted to left out only. A staff member (accredited traffic controller) is to be assigned to coordinate the safe entry and exit of vehicles to and from the site on Saturday and Sunday services from 9.30am to 10.00am and 1.00pm to 1.30pm and from 3.30pm to 4.00pm and 7.00pm to 7.30pm and during the three special events referred to in condition 68 of these conditions. 9At no stage during the course of the hearings, a hearing process that was adjourned for a considerable period of time to enable the applicant to address a number of matters of significance in issue between the parties, was any objection raised to the terms of this condition. 10The short submission put for the applicant on this matter is: The traffic experts' joint report identified that access out of the site must be restricted to left out only. The Applicant seeks an amendment to Condition 12 by deleting the words in the second sentence from "on Saturday and Sunday..." to "...to 7.30pm and". In short, the Applicant is willing to accept that a staff member, being an accredited traffic controller, shall co-ordinate safe entry to and from the site for the three special events referred to in Condition 68 of the Conditions. It is unreasonable and unnecessary to have a staff member supervise entry and departure during normal and routine use of the premises. 11On the other hand, the council's position is that no good reason has been shown to revisit a provision that was not subject to contest during the course of the proceedings. 12The council's solicitor's submission was in the following terms: The amended conditions are settled as between the Applicant and Respondent except for one matter. The Applicant seeks an amendment to condition 12 by deleting the words in the second sentence from "on Saturday and Sunday..." to "...7.30pm and". Council notes that condition 12 as worded in the attached document is the same as condition 12 contained in Exhibit 7 (the without prejudice conditions) and Exhibit 13 (the amended without prejudice conditions). Council notes further that condition 12 has not been disputed by the Applicant until now (after the hearing is completed). 13As the parties have agreed that I should deal with this matter on the basis of the modest amount of additional material contained in their comments, I am not satisfied that there is any sufficient evidentiary basis to revisit a condition that was not contested during the course of the hearing but which is now sought to be varied. 14If there is some good reason why this condition should be changed, that is a matter that can be dealt with, appropriately, by an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 to modify the consent in this regard. Such a modification application can enable appropriate discussions to occur on a properly informed basis between the applicant and the council. I therefore decline to modify condition 12. Tim Moore Senior Commissioner 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: 11 April 2011