JACQST Construction Pty Ltd v Parramatta City Council [2019] NSWLEC 1086

Land and Environment Court New South Wales

Medium Neutral Citation: JACQST Construction Pty Ltd v Parramatta City Council [2019] NSWLEC 1086 Hearing dates: Conciliation conference on 13 February 2019 Date of orders: 04 March 2019 Decision date: 04 March 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: See orders at [26] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Parramatta Development Control Plan 2011 Parramatta Local Environmental Plan 2011 Protection of the Environment Operations Act 1997 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Acid Sulfate Soils Manual Category: Principal judgment Parties: JACQST Construction Pty Ltd (Applicant) Parramatta City Council (Respondent) Representation: Counsel: J Reid (Applicant)

Solicitors: Lionheart Lawyers (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent) File Number(s): 2017/301775 Publication restriction: No

Judgment 1. COMMISSIONER: The applicant appeals against Parramatta City Council's deemed refusal of a Development Application 292/2017 (DA) seeking approval for the development of land being Lots 1, 2, 3 and 4 in DP 228839 at 8 Melville Street and 14 Gould Place, Parramatta in the following sequence: * Sequence 1: Demolition of the existing dwelling house at 14 Gould Place, Parramatta; construction of the proposed basement (including transfer slab and services) and access and demolition and construction works to Macarthur House and change of use from commercial use to residential use and approved tree removal; * Sequence 2: Consolidation of four lots (Lots 1 - 4 in DP 228839) and subdivision into two (2) stratum lots; * Sequence 3: Construction of a dual occupancy on proposed Lot 2 of the stratum subdivision; * Sequence 4: Subdivision of the dual occupancy into two (2) dwelling house lots and consequential transfer of access rights to the basement to the dwelling houses. 1. The plans to which development consent is sought are at Attachment 1 to the signed Section 34 Agreement filed with the Court on 14 February 2019. 2. While they are different to those referred to in the Amended Statement of Facts and Contentions (ASOFC) filed on 3 September 2018, that document remains useful as it sets out the essential facts and the relevant statutory framework. 3. Importantly, it highlights the fact that the site contains a State Heritage Item known as Macarthur House which occupies Lot 4 in DP 228839. 4. Lots 1 and 2 are vacant. And, a part one and part two storey dwelling house occupies Lot 3. 5. Vehicular access to the development is proposed from Gould Place, Parramatta. 6. The aerial photograph reproduced from the ASOFC shows the current subdivision and built form on the site and the access point from Gould Place. 1. In an effort to resolve the appeal, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 February 2019. I presided over the conciliation conference. 2. At that time, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. This decision involved the Court upholding of the appeal and granting conditional development consent to the application for subdivision and works. Importantly, the agreement requires the approved development is carried out in a particular sequence. The terms of the consent make this plain. 3. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. However, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the following jurisdictional prerequisites of relevance in these proceedings and set out below is their explanation as to why I can be satisfied about these matters.