Case alert - JKN Para v City of Parramatta Council

JKN Para Pty Ltd (administrator appointed) v City of Parramatta Council [2024] NSWLEC 1599

We successfully acted for the City of Parramatta Council in an appeal to the Land and Environment Court by JKN Para Pty Ltd against the refusal of a development application for two residential towers at 189 Macquarie Street, Parramatta.

In dismissing the appeal, the Court agreed with the Council’s argument that the proposed design was incompatible with the Apartment Design Guide (ADG) and the Parramatta Development Control Plan 2011 (DCP 2011) and did not achieve design excellence under the Parramatta Local Environmental Plan 2011 (LEP 2011). Key non-compliances arose from insufficient side setbacks, the excessive bulk and scale of Tower A, and insufficient solar access, natural ventilation, and privacy.

In the course of the appeal, the Applicant amended its application four times, including on the first and second day of the hearing (and tried to amend the application on the last day of the hearing and after Council’s closing submissions, the application was rejected by the Court).

The proposed tower design had been the winner of a Design Excellence Competition which was a requirement due to the operation of clause 7.28 of the LEP 2011. The design jury recommended that the winning design be further developed to achieve “planning compliance” and “compliance with the ADG”. The Applicant argued that the Court should give considerable weight to the Design Excellence Competition, and to the site’s planning history that was informed by the Competition. It also argued that the performance of the ADG guidelines and requirements under the LEP 2011 and DCP 2011 should be considered in light of those considerations. The Court agreed with the Council that compliance with the ADG and DCP 2011 was paramount despite those considerations.

Commissioner O’Neill and Acting Commissioner Thorpe found that the ADG and DCP 2011 should take priority over adopting the winning design’s building envelope and spatial layout. The Commissioners reasoned that this was consistent with the design jury’s recommendations and found that the proposed design resulted in fundamental non compliances with the ADG and DCP 2011 because of: the insufficient setbacks, solar access, and failure to achieve design excellence.

This case is a reminder that councils can place significant weight on planning guidelines and controls (even those that are not environmental planning instruments) over other considerations, such as design competitions or site planning history.

Link to full judgment: https://www.caselaw.nsw.gov.au/decision