Land and Environment Court New South Wales Medium Neutral Citation: Tao v Parramatta City Council [2020] NSWLEC 1132 Hearing dates: Conciliation conference on 19 February 2020 Date of orders: 19 March 2020 Decision date: 19 March 2020 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [7] 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 Local Environmental Plan 2011 State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: Leo Kit Tao (Applicant) Parramatta City Council (Respondent) Representation: Counsel: M Hoang (Agent) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Marsdens Law Group (Respondent) File Number(s): 2019/188672 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against City of Parramatta Council's deemed refusal of Development Application 242/2019 seeking approval for alterations and additions to an existing single storey dwelling house, including demolition of the rear detached garage and construction of a new carport, partial demolition of the rear of the existing dwelling, and construction of rear and side additions. The site is 86 Eastwood Avenue, Epping also known as Lot 1 in DP 128442. 2. 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 19 February 2020. I presided over the conciliation conference. 3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. 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 s 4.16 of the EPA Act to grant consent to the development application. The parties indicate in their signed agreement that there is jurisdiction for the Court to exercise this function. Advice was provided from the parties on how jurisdictional prerequisites of relevance in these proceedings have been satisfied, and I have regard to this advice in drawing my own conclusions, as follows: 5. I accept the advice of the parties that the development application was made with the consent, in writing, of Leo Kit Tao and Tina Poh Yen, being the of the owners the land to which the development application relates (86 Eastwood Avenue, Epping). 1. I note that the applicant has provided BASIX Certificate No. A370685 dated 20 February 2020 in accordance with Schedule 1 of the EPA Act. 2. State Environmental Planning Policy No 55—Remediation of Land ('SEPP 55') I note the advice of the parties, and accept given the existing low density residential use of the site, that: 1. In relation to clause 7 of SEPP 55, the land on which the development is proposed to be carried out is not known to be contaminated and is not: 1. land that is within an investigation area, or 2. 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. In regard to Parramatta Local Environmental Plan 2011 ('LEP') I accept the advice of the parties that: 1. The subject site is located within Zone R2 Low Density Residential. Development for the purposes of a "dwelling house" is permitted with consent in Zone R2. 2. The development application meets the applicable development standards and does not require approval of any clause 4.6 variations to development standards contained under the LEP. 3. The Respondent has considered the effect of the proposed development on the heritage significance of the Epping/Eastwood conservation area pursuant to clause 5.10(4) of the LEP, and I have also considered this provision in respect of the proposal. 1. Notification requirements under the EPA Act have been satisfied and all submissions have been taken into consideration. I also have noted the summary of submissions contained in Council's statement of facts and contentions (filed 16 August 2019) and heard submissions from an adjoining owner during the conciliation conference. I too am satisfied that submissions have been taken into consideration. 2. Suitable conditions of consent are included in Annexure 'A' to the agreement. 1. 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. 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. 2. The Court orders: 1. The Applicant is granted leave to amend Development Application No. 242/2019 and rely upon the following amended plans and documentation: DRAWING NO. ISSUE DOCUMENT NAME DATED PREPARED BY 001 E Site Plan Cracknell & Lonergan 03/03/2020 403 E Basement Floor Plan 1:100 Cracknell & Lonergan 03/03/2020 103 E Basement Floor Plan 1:200 Cracknell & Lonergan 03/03/2020 401 E Ground Floor Plan 1:100 Cracknell & Lonergan 03/03/2020 101 E Ground Floor Plan 1:200 Cracknell & Lonergan 03/03/2020 402 E Roof Plan 1:100 Cracknell & Lonergan 03/03/2020 102 E Roof Plan 1:200 Cracknell & Lonergan 03/03/2020 301 E Short & Long Sections Cracknell & Lonergan 03/03/2020 203 E East Elevation Cracknell & Lonergan 03/03/2020 202 E West Elevation Cracknell & Lonergan 03/03/2020 201 E Front & Rear Elevations Cracknell & Lonergan 03/03/2020 002 E Survey Plan Cracknell & Lonergan 03/03/2020 DOCUMENT DATED PREPARED BY BASIX Certificate No. A370685 20/02/20 1. The appeal is upheld. 2. Development Application No. 242/2019 for alterations and additions to an existing single storey dwelling house, including demolition of the rear detached garage and construction of a new carport, partial demolition of the rear of the existing dwelling and construction of rear and side additions on the land at 86 Eastwood Avenue Epping is approved, subject to the Conditions of Consent at Annexure 'A'. ………………………. P Walsh Commissioner of the Court Annexure A (124 KB) Plans (1.17 MB) ********** 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: 20 March 2020