ACFU International Pty Limited and others v City of Paramatta Council [2024] NSWLEC 1505

Catchwords: DEVELOPMENT APPEAL – multi dwelling housing stormwater and flood planning – justification of contravention of height of building development standard – conciliation conference – agreement between the parties - orders Land and Environment Court New South Wales Medium Neutral Citation: ACFU International Pty Limited and others v City of Paramatta Council [2024] NSWLEC 1505 Hearing dates: Conciliation Conference 8 August 2024 Date of orders: 22 August 2024 Decision date: 22 August 2024 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The Appeal is upheld. (2) Development application DA159/2021 for the demolition of existing structures and construction of 11 - three storey town houses with basement level parking for twenty-one (21) resident vehicles and four (4) visitor spaces at 45-49 Asquith Street, Silverwater is determined by the grant of development consent subject to the conditions in Annexure A . Catchwords: DEVELOPMENT APPEAL – multi dwelling housing stormwater and flood planning – justification of contravention of height of building development standard – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979 , s s 4.15, 4.16, 8.7 Land and Environment Court Act 1979 , s 34 Auburn Local Environmental Plan 2010 , cll 4. 3, 4.6, 6.1, 6.3, 6.5 Parramatta Local Environmental Plan 2023, cll 1.1AA, 1.8, 1.8A, 4.6, 5.21 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, s 6.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Cases Cited: Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Category: Principal judgment Parties: ACFU International Pty Limited (First Applicant) ABC Share Investment Pty Limited (Second Applicant) CPP Consultant Pty Limited (Third Applicant) City of Parramatta Council (Respondent) Representation: Counsel: C Koikas (Applicant) C Campbell (Solicitor)(Respondent) Solicitors: Sattler and Associates Pty Ltd (Applicant) City of Parramatta Council (Respondent) File Number(s): 2023/180452 Publication restriction: No Judgment COMMISSIONER : This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the Section 8.2 Review application of the Respondent ’ s refusal of Development Application No.159/2021, seeks consent for demolition , tree removal and construction of multi-dwelling housing development containing eleven (11) three-storey townhouses with basement level parking for twenty-two (24) residential vehicles and four (4) visitor spaces (the Proposed Development) at 45-49 Asquith Street, Silverwater legally described as Lots 39, 40 and 41 of DP 6299 (the Site). The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 8 August 2024 . I presided over the conciliation conference. Following the Respondent ’ s Statement of Facts and Contentions ( SOFAC ) filed 15 August 2023 the Applicant amended the Proposed Development by way of Notice of Motion (NOM) filed 12 February 2024 granted 20 February 2024 with amended drawings and a cl 4.6 variation request dated 17 January 2024 prepared by Eugene Sarich of Urbanesque Planning seeking to justify the contravention of the maximum height of building (HOB) development standard in cl 4.3 of the A uburn Local Environmental Plan 2010 (A LEP ) . The Respondent subsequently filed an Amended SOFAC on 12 March 2024 raising new contentions as to insufficient information regarding flooding and stormwater . The Applicant, by NOM filed 11 June 2024 and granted 17 June 2024 amended the Proposed Development by way of a Report from Hydracor consulting engineers dated 6 June 2024 annexing Flood Impact Report, Flood mapping, stormwater plans, car tridge storm filter system and additional storm water management plans. The parties ’ Hydraulic engineers Bruce Kenny for the Applicant and Shafi Joyla for the Respondent prepared a Joint Expert Report filed 7 August 2024 (JER Hydraulic) reaching agreement on the flood status of the Site . I come back to the flood status below. The Town planning experts Eugene Sarich for the Applicant and Patrick Santos for the Respondent did not prepare a Joint Expert Report as the JER Hydraulic did not raise any planning contentions. At 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. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. The parties ’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the Auburn Environmental Plan 20 10 ( A LEP ) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed written submission on jurisdictional matters. As the DA was lodged prior to 1 March 2022, the Environmental Planning and Assessment Regulation 2000 applies by virtue of the savings provision in Sch 6, cl 3 of the Environmental Planning and Assessment Regulation 2021 . On 2 March 2023 the PLEP was published on the NSW legislation website and thereby commenced pursuant to cl 1.1AA of the PLEP. The PLEP repealed the Auburn Local Environmental Plan 2010 (ALEP), pursuant to cl 1.8(1) of the PLEP , however, cl 1.8A of the PLEP ha s the effect of saving the ALEP which remains applicable to the Proposed Development . The development application was notified to adjoining and nearby landowners in accordance with Council ’ s Policy between 24 October 2022 and 24 November 2022. No submissions were received by the Respondent . The S ite is zoned R3 – Medium Density Residential under the ALEP and t he P roposed D evelopment is permissible in the zone. The P roposed D evelopment satisfies all development standards in the A LEP, other than the height of buildings (HOB) development standard pursuant to cl 4.3 of the ALEP . The Site is subject to a maximum HOB development standard of 9m. The P roposed D evelopment exceeds this standard by 156mm at the ridgeline of Units 7 and 8; and by 600mm at the ridgeline at Units 1, 2 and 3. The Applicant relies on a written request pursuant to cl 4.6 of the ALEP to justify the contrav ention of the HOB development standard. The Court is satisfied that the applicant ’ s written request seeking to justify the contravention of the development standard in cl 4.3 of the A LEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the A LEP and that the P roposed D evelopment would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. The Site is mapped as being in class 5 land under the Acid Sulfate Soils Map, however c l 6.1 of the ALEP does not apply because, as explained in the Statement of Environmental Effects (SEE) at p 9, filed with the Class 1, the works concerned are not within 500m of adjacent Class 1, 2, 3, or 4 land that is below 5m AHD. Clause 6.3(3) of the ALEP concerns flood planning but only applies to land that is shown as “ Flood planning area ” on the Flood Planning Map or other land at or below the flood planning level (cl 6.3(2)). As confirmed by the experts in the J ER Hydraulic, t he P roposed D evelopment does not meet either of these criterion , and accordingly, cl 6.3 does not apply . The parties have also taken into consideration the provisions of the PLEP as required by s 4.15(1)(a)(ii) of the EPA Act (see Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 per Pepper J at [29]). Whist the parties ’ experts considered cl 5.21 of the PLEP in the JER Hydraulic , the Site is not located in the flood planning area for the purpose of cl 5.21(2), and accordingly, cl 5.21 does not apply to the proposal. Nevertheless, the parties ’ experts consider that the P roposed D evelopment would comply with cl 5.21 had it applied . T he parties ’ experts have considered flooding and are satisfied that the P roposed D evelopment is acceptable subject to conditions of consent. The S ite has the provision of town water, electricity, sewer connection, public stormwater connection and has access from a bitumen sealed public road adjacent to 2 boundaries , thus the proposed development satisfies cl 6.5 of the ALEP . The State Environmental Planning Policy (Resilience and Hazards) 2021 ( Resilience and Hazards SEPP ) applies to all of NSW and s 4.6 relates to consideration of whether the Site is contaminated . A Stage 1 Contamination Assessment report by Ground Technologies Pty Limited dated 8 February 2021 was filed with the Class 1 Application . The conclusions of the report at p 3 are as follows : Historically the use of the Site has been residential . The S ite is in a long established residential area. Industrial facilities are in the region but are over 100m away from the S ite. The geologic profile being Ashfield Shale and overburden clay would limit underground migration of any contaminants . A search of the NSW EPA Contaminated Land Management record of Notices revealed that there were no Notices issued to the S ite. N o history of dangerous manufacturing utilising heavy chemical or metals was documented. The S ite is within an area with a low risk of acid sulphate soils. The S ite is suitable for residential use. No remediation action plan is required. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP ) applies to the Parramatta L ocal G overnment A rea and s 6.6 , which relates to water quality and quantity , provides that the consent cannot be granted unless the consent is satisfied of the matters set out in subsection (2) , namely that: … the development ensures— (a) the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and (b) the impact on water flow in a natural waterbody will be minimised. I am satisfied that t he P roposed D evelopment complies with s 6.6 of the Biodiversity and Conservation SEPP as demonstrated in the Flood Impact Report prepared by Acor Consultants dated 18 September 2023, Basix Certificates prepared for the P roposed D evelopment in accordance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 , were lodged with the D evelopment A pplicati on and are accepted as current as there are no material amendments to the residential component of the Proposed Development that would necessitate a new certificate. 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. I adopt the reasons given by the parties as I have set out in this judgment. 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. Notations: The Court notes: The City of Parramatta Council as the relevant consent authority has agree, under cl 55 of the Environmental Planning and Assessment Regulation 2000 , to the Applicants amending development application DA159/2021 to rely upon the following amended engineering plan: Plan Plan No. Issue No. Date Prepared by Stormwater Management Plan Catchment B (Revised) CC220285, Sheet G1 A 7.8.2024 Hydracor consulting engineers Orders: The Court orders: The Appeal is upheld . Development application DA159/2021 for the demolition of existing structures and construction of 11 - three storey town houses with basement level parking for twenty-one (21) resident vehicles and three (3) visitor spaces at 45-49 Asquith Street, Silverwater is determined by the grant of development consent subject to the conditions in Annexure A . E Espinosa Commissioner of the Court Plans Part 1 Plans Part 2 Plans Part 3 Plans Part 4 Plans Part 5 Plans Part 6 Plans Part 7 Plans Part 8 Plans Part 9 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: 22 August 2024