Mercury Resources Pty Ltd v Parramatta City Council [2016] NSWLEC 1094

Land and Environment Court New South Wales

Medium Neutral Citation: Mercury Resources Pty Ltd v Parramatta City Council [2016] NSWLEC 1094 Hearing dates: 22-24 February 2016 Date of orders: 16 March 2016 Decision date: 16 March 2016 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: DEVELOPMENT APPLICATION: Mixed Use, height development standard, flooding, amenity, impacts to adjoining properties Legislation Cited: Environmental Planning and Assessment Act 1979; Parramatta Local Environmental Plan 2011; State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings Texts Cited: Acid Sulphate Soils Manual; Parramatta Development Control Plan 2011; Residential Flat Design Code Category: Principal judgment Parties: Mercury Resources Pty Ltd (Applicant)

Parramatta City Council (Respondent) Representation: Counsel: Ms S Duggan (Applicant)

Solicitors: Ms I Ferguson, Gadens (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 10451 of 2015

Judgment 1. Mercury Resources Pty Limited (Mercury) lodged Development Application No 86/2015 with Parramatta City Council on 25 February 2015 seeking consent to demolish structures, tree removal and construct a seven storey mixed use building with basement car parking at 32 Tramway Avenue, Parramatta. The Council refused consent on 27 July 2015 and Mercury is appealing that determination.

The site and its context 1. The site is an irregular mid-block allotment bisected by the concrete channel that constitutes Clay Cliff Creek and is located on the southern side of Tramway Avenue, an un-made road, the portion of which immediately adjoins the site currently used as a car park. The site has a frontage of 55.09m, an eastern boundary of 46.7m and a western boundary of 42.2 m with an overall site area of 2300m². It is currently vacant. 2. The predominant pattern of development is a mix of hotel, club and residential development. Adjoining the site to the east is the Rosehill Bowling Club. The Mercure Hotel adjoins the site to the south with three detached dwellings to the west which front Arthur Street. Development on the northern side of Tramway Avenue is industrial. 3. The council has recently approved a mixed use development at the corner of Hassall and Arthur Streets, to the south west of the site, Nos 125-129 Arthur Street (No125-129). That development, if built, would include two levels of basement parking, an overland flow area at street level with part four, six and seven storey residential units above. The highest section of the building is at its southern end (Hassall Street) at RL28 (lift overrun RL29) with the roof of the four storey element at the northern portion of the building at RL19 (parapet). 4. The whole of the site lies to the north and east of No 125-129. 5. The site is identified by the Council as being flood prone and is impacted by the one in 20 year, one in 100 year and PMF flood events. The flood impacts to the site are from two sources, one being the upstream catchment that flows into Clay Cliff Creek and the other the flooding of the Parramatta River that travels up that creek. The latter has more severe impacts in flood events. The parties agree the whole of the site is in the high flood risk precinct despite Council mapping from various documents indicating that part of it may be within a medium risk precinct however it is agreed that that section of Arthur Street that would be required or off-site access to a flood free area is within the high risk precinct.