1 Tracey Pty Ltd v City of Parramatta Council

[2024] NSWLEC 1469

Land and Environment Court

New South Wales

Medium Neutral Citation:

1 Tracey Pty Ltd v City of Parramatta Council [2024] NSWLEC 1469

Hearing dates:

Conciliation conference held 6 May, 22 May, 7 June, 21 June and 19 July 2024

Date of orders:

06 August 2024

Decision date:

06 August 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA/424/2023 and rely upon the amended plans referred to at Condition 2 of Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $1,800 within 48 hours of the date of these orders.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA/424/2023 (as amended) for the demolition of existing dwelling, tree removal and the construction of a two-storey childcare centre with basement parking at 1 Tracey Avenue, Carlingford, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – childcare centre – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 37, 38

Education and Care Services National Regulations 2011, ss 107, 108

Parramatta Local Environmental Plan 2023, cll 2.3, 6.1, 6.2

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ch 2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ch 3, ss 3.22, 3.23, 3.25, 3.26

Texts Cited:

The Hills Shire Tree Management Manual, 2017

NSW Child Care Planning Guideline, 2021

Category:

Principal judgment

Parties:

1 Tracey Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
C Ters (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Ters Legal (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2023/325214

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by 1 Tracey Pty Ltd (the Applicant), against the deemed refusal of Development Application DA/424/2023 (the DA) by City of Parramatta Council (the Respondent). At the date of its lodgement on 20 July 2023, the DA sought consent for the demolition of existing structures, tree removal and the construction of a two-storey childcare centre with basement parking at 1 Tracey Avenue, Carlingford (the site).

2. The Court arranged a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 May, 22 May, 7 June, 21 June and 19 July 2024. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of note, the DA has been amended by agreement between the parties to resolve each of the contentions initially raised by the Respondent. These contentions included the proposed building bulk, scale and design, inconsistencies with the zone objectives of the R2 Low Density Residential land use as set out in the Parramatta Local Environmental Plan 2023 (PLEP), inadequate storage, traffic, parking and pedestrian access impacts, unsuitable landscaping, inadequate stormwater drainage, and adverse acoustic impacts, amongst other contentions.

5. Agreed design amendments have been made to improve the DA’s relationship to the site and its context thereby resolving each of the Respondent's contentions. In summary, these amendments improve the presentation of the proposed childcare centre to the primary streetscape and its immediate neighbours, introduce landscape design treatments that are more appropriate to the local area, introduce additional storage, further mitigate against acoustic impacts, and increase setbacks to reduce the proposed bulk and scale of the DA reducing off site impacts.

6. The agreed amendments to the DA also have the effect of reducing the capacity of the proposed childcare centre from 74 places to 72 places.

7. 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 amended DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The DA was publicly notified from 31 July to 21 August 2023. Thirty submissions were received by the Respondent raising concerns for issues including:

1. Traffic movement and congestion.

2. Safety for children and pedestrians.

3. Parking availability and accessibility.

4. Overshadowing of neighbouring properties.

5. Privacy and acoustic impacts upon neighbouring properties.

6. Impacts upon local infrastructure.

7. Perceived saturation of childcare centres in the local area.

8. Tree removal and replacement.

11. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent appropriately address the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately considered.

12. The parties agree, and I am satisfied, that the PLEP is the relevant local environmental planning instrument. The site is zoned R2 Low Density Residential, and the proposed development - characterised as a childcare centre - is permissible with consent.

13. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the PLEP, the amended DA is consistent with the R2 Low Density Residential zone objectives, which include to enable other land uses that provide facilities or services to meet the day to day needs of residents, to maintain the low density residential character of the area, to ensure non-residential land uses are carried out in a way that minimises impacts on the amenity of a low density residential environment, to provide a range of community facilities that serve the needs of people who live in, work in and visit the area, and to protect and enhance tree canopy, existing vegetation and other natural features.

14. The parties agree, and I am satisfied, that all principal development standards of the PLEP have been met, and in particular that the amended DA complies with the standards for height of building and floor space ratio (FSR).

15. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the PLEP - Acid sulfate soils - the site is not mapped within an acid sulfate soils area.

16. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the PLEP - Earthworks - the DA proposes excavation and earthworks forming a matter for consideration. I am satisfied that each of the matters set out at cl 6.2(3)(a)-(h) of the PLEP have been satisfactorily addressed in the amended DA, including flooding, stormwater management, excavation, soil contamination and fill, effects on amenity of adjoining properties, the likelihood of disturbing environmental heritage, impacts on watercourses, water catchments or environmentally sensitive areas, and mitigating the impacts of the amended DA.

17. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination. Further, the Applicant has provided a Preliminary and Detailed Site Investigation Report, prepared by Broadcrest Consulting Pty Ltd dated March 2024, and a Hazardous Building Materials Assessment prepared by Broadcrest Consulting Pty Ltd dated April 2024.

18. The parties agree, and I am satisfied, that the site is not contaminated and is suitable for the proposed development. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

19. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument. Chapter 2 of SEPP BC deals with vegetation in non-rural areas and applies to land within the City of Parramatta.

20. The parties agree, and I am satisfied, there is no significant vegetation on the site, however the proposed development seeks the removal of six trees to accommodate the amended DA, two of which are trees that are exempt species pursuant to the relevant Hills Shire Tree Management Manual. Additionally, the Applicant has provided an Arboricultural Impact Assessment prepared by NSW Trees Arboricultural Consultants. The amended DA includes the planting of 15 replacement trees at the site.

21. Accordingly, I am satisfied, that the amended DA is consistent with the matters set out at Ch 2 of SEPP BC.

22. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument. Chapter 3 of SEPP Infrastructure deals with development for the purposes of childcare facilities.

23. Pursuant to s 3.22 of SEPP Infrastructure - Centre-based child care facility—concurrence of Regulatory Authority required for certain development - the parties agree, and I am satisfied the amended DA complies with the indoor and outdoor unencumbered space requirements set out in ss 107 and 108 of the Education and Care Services National Regulations 2021.

24. Pursuant to s 3.23 of SEPP Infrastructure - Centre-based child care facility—matters for consideration by consent authorities - the parties agree, and I am satisfied, that the applicable provisions of the Child Care Planning Guideline have been considered and the amended DA complies with the relevant provisions of the guidelines.

25. Pursuant to s 3.25 of SEPP Infrastructure - Centre-based child care facility—floor space ratio - the parties agree, and I am satisfied, that the amended DA will result in an FSR that does not exceed 0.5:1, complying with this development standard.

26. Pursuant to s 3.26 of SEPP Infrastructure - Centre-based child care facility—non-discretionary development standards - the parties agree, and I am satisfied, that the amended DA development complies with the relevant non-discretionary development standards set out at s 3.26(2) of SEPP Infrastructure.

27. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

28. The Court notes that:

1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA on the NSW Planning Portal on 19 July 2024.

3. The Applicant has lodged the amended DA with the Court on 26 July 2024.

Orders

29. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA/424/2023 and rely upon the amended plans referred to at Condition 2 of Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $1,800 within 48 hours of the date of these orders.

3. The appeal is upheld.

4. Consent is granted to Development Application DA/424/2023 (as amended) for the demolition of existing dwelling, tree removal and the construction of a two-storey childcare centre with basement parking at 1 Tracey Avenue, Carlingford, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court 

Annexure A 

Architectural Plans

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Decision last updated: 06 August 2024