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. Jurisdictional matters 1. The development application was made with the consent in writing of the owners of the land (Lots 1, 2, 3 and 4 in DP 228839 known as 8 Melville Street and 14 Gould Place, Parramatta) to which it relates. 2. The development application was notified in accordance with Council's notification policy at Appendix A5 to Parramatta Development Control Plan 2011 for a period of 30 days from 29 May 2017. One submission was received during the notification period which raised concern about the impact of the proposal on the heritage item (Attachment 2 to the s34 agreement). The parties are satisfied that the concerns raised by the submitter have been adequately addressed in the amended plans for which the Court granted leave to the applicant to rely upon on 14 August 2018 and the requirements of the general terms of approval issued by the NSW Heritage Council dated 17 September 2018 (the GTAs) (Attachment 3 to the s34 agreement). 3. The development is for the purpose of a "dual occupancy" and "dwelling house" as defined in the Dictionary to the Parramatta Local Environmental Plan 2011 (PLEP 2011). 4. The land to which the development application relates is within Zone R2 Low Density Residential (relevant zoning map LZN_009 - Attachment 4 to the s34 agreement) under the provisions of PLEP 2011 and development for the purpose of a dual occupancy and dwelling house is permitted with consent in the Land Use Table relating to that zone at the end of Part 2 of PLEP 2011 (Land Use Table for Zone R2 - Attachment 5 to the s34 agreement). The parties agree that regard has been had to the objectives of the R2 zone, as required by cl 2.3 of PLEP 2011, which are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provides facilities or services to meet the day to day needs of residents. • To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment. • To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods. Whilst the test required by cl 2.3 is not whether the consent authority considers that the proposal is 'consistent' with the objectives of the zone, the parties agree that when regard is had to the objectives of the zone, the proposal is consistent with the stated objectives. 1. The development does not contravene any development standard in PLEP 2011 or any other applicable environmental planning instrument. 2. The sequencing of the proposed consolidation of the 4 existing lots and consolidation into two lots, construction of the dual occupancy and then subdivision of the dual occupancy lot into two dwelling house lots is permitted by subcll 4.1(3) and 4.1(4B) of PLEP 2011 (cl 4.1 PLEP 2011 - Attachment 6 to the s34 agreement). 3. Erected upon Lots 1, 2 and 4 in Deposited Plan 228839 (i.e. not on Lot 3 which presently has the existing dwelling house to be demolished on it) is a heritage item (Item no. I00050) listed and described in Schedule 5 to the PLEP 2011, identified on Heritage Map HER_009, and nominated as being of state significance (Heritage Map HER_009, Schedule 5 and cl 5.10 to PLEP 2011 - Attachment 7 to the s34 agreement). 4. The Court has sufficient information to consider the impact on the state heritage item (Macarthur House) as required by cl 5.10 of PLEP 2011. The parties rely upon the heritage impact statement prepared by Paul Davies dated March 2017 (Attachment 8 to the s34 agreement), the Conservation Management Plan prepared by Paul Davies dated March 2017 (Attachment 9 to the s34 agreement), and the GTAs and agree that the proposal, carried out in accordance with the conditions of consent, will protect and enhance the heritage item. During the proceedings, the Council has obtained advice on the development application from an independent heritage consultant and that consultant liaised with the NSW Heritage Council leading to the issue of the GTAs. 5. Clause 6.1(3) of PLEP 2011 requires that prior to the grant of any development consent that an Acid Sulfate Soils Management plan prepared in accordance with the Acid Sulfate Soils Manual has been 'provided' to the consent authority. The applicant provided the Acid Sulfate Soils Management plan prepared by Australian Geotechnical dated 25 June 2018 to the Council. A copy is provided to the Court, as the consent authority, at Attachment 10 to the s34 agreement and the parties note that Condition 1 requires the development to be carried out in accordance with its terms. 6. The proposed development includes consent for earthworks for the construction of the shared basement and to a lesser extent, for the footings of the dual occupancy development. Clause 6.2 of PLEP 2011 requires the consent authority to consider the matters set out in subcl (3) which are addressed in the accompanying reports as follows (addressing each of the matters in cl 6.2(3)): "(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, The applicant submitted a Groundwater Assessment Report prepared by GCA dated 15 October 2018 which undertakes a groundwater assessment and concludes (at part 4.2, page 9 – extract Attachment 11)) that there will be an impact on groundwater as a result of the basement which can be managed by building and connecting to the stormwater system. Conditions 36 and 38 ensure that the stormwater will be so managed. Surface water will be managed in accordance with conditions 14, 20 and 38. A geotechnical assessment was undertaken by GCA dated 15 October 2018 which included bore hole investigations. The report concludes at part 6 pages 13-14 (extract at Attachment 12) that additional inspections be undertaken when the soils are accessible and that on the observations at the test pit locations, it is recommended to underpin the construction to the inferred shale bedrock, to be appropriately designed by the structural engineer. The conditions of consent adopt the recommendation at conditions 11, 42, 36 and 38. A Vibration and Excavation Monitoring Report has been prepared by GCA dated 15 October 2018 (extract at Attachment 13). The monitoring protocol, which will be refined in the construction drawings, is capable of ensuring that the construction method will permit soil stability. Condition 42 requires the report to be submitted to the PCA for approval prior to issue of a construction certificate to manage soil stability having regard to the sub soil structure and the final construction drawings. (b) the effect of the proposed development on the likely future use or redevelopment of the land, The proposed development will return the use of the state heritage item to its original residential use with improved modern conveniences including basement parking and recreation facilities. The likely future use, and use anticipated by the zone, of the land for residential uses will be promoted by the development. The proposal will not unreasonably impede future redevelopment of the land. The excavation will not unreasonably impact future development or likely use of the land. (c) the quality of the fill or the soil to be excavated, or both, Having regard to the historical use of the land for residential purposes and the failure to discover any contaminated material during the borehole investigations in reports at Attachments 11, 12 and 13, it is expected that the excavated material will be of reasonable quality. Any of the existing fill that will not be used on site will be disposed to a Waste Disposal Facility in accordance with the obligations imposed by the Protection of the Environment Operations Act 1997. (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, The proposed development will reduce the intensity of the use of Macarthur House from a commercial use in a residential use to a single dwelling house. The proposal meets the landscaping and deep soil landscape controls in the development control plan. The proposed dual occupancy includes adequate setbacks to neighbouring properties and has adequate privacy screening and landscaping included in the proposal. After notification to surrounding residents no objections from adjoining properties were received to the proposal. Following the construction period, the excavation will not have any impact on the amenity of adjoining properties and will permit structures that would otherwise be outbuildings to be located underground which will further minimise amenity impacts. (e) the source of any fill material and the destination of any excavated material, Given the historical development on the land, it is unlikely that there is any fill material on the land. Any excavated material that is not used on the site will be disposed of in accordance with the requirements of the Protection of the Environment Operations Act 1997. (f) the likelihood of disturbing relics, There is a very low likelihood of disturbing relics on the land. The applicant submitted an historical Archaeological Assessment prepared by Austral Archaeology Pty Ltd dated 21 March 2017 which concluded that: a. A search of the Aboriginal Heritage Information Management System Database returned no sites within a 50m boundary of the study area, which was expected given the sites documented history of use, reclamation and continuous development since European settlement; b. There is an archaeologically sensitive zone located within the study area related to the location of the former stables, but which lie outside of the curtilage of the State Heritage Register listing. c. There are remains of outbuildings within the curtilage from the use of The Kings School but that the remains are not considered to be of archaeological significance due to their 20th century provenance. The conditions of consent which form part of the GTAs include an unexpected finds protocol which will ensure that if relics are found they will not be disturbed. (Relevant extracts of the archaeological assessment at Attachment 14). (g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area. The proposal is not located in proximity to any watercourse, drinking water catchment or environmentally sensitive area and is therefore unlikely to have any adverse impact." (Emphasis altered) 1. The development application was accompanied by a BASIX certificate for the alterations and additions to Macarthur House and the construction of the dual occupancy development (BASIX certificates A275367_02 and 805503M_02 both dated 18 December 2018) (Attachment 15 to the s34 agreement). 2. In relation to cl 7 of State Environmental Planning Policy No 55—Remediation of Land, the land on which the development is proposed to be carried out is not known to be contaminated and is not: (a) land that is within an investigation area, or (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out. 1. Based on all of the evidence as outlined above and a careful consideration of the terms of the consent including the agreed sequencing, 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. 2. 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. 3. The Court notes that the parties agree that the plan referred to in [26(1)] is a 'minor' amendment to the application for the purposes of s 8.15(3) of the Environmental Planning and Assessment Act 1979. 4. The Court orders: 1. The Applicant is granted leave to rely on the following plan: Ref Drawing Title. Revision Prepared By Dated 2018-623-01B MTE Comments B McLaren Traffic Engineering 18/12/2018 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA/292/2017 to be carried out 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 four (4) lots (lots 1-4 in deposited plan 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 for the dwelling houses on the land known as 8 Melville Street and 14 Gould Place, Parramatta subject to the conditions of consent annexed hereto and marked "A". ………………………….. S Dixon Senior Commissioner of the Court 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: 05 March 2019