17 Manson Pty Ltd v Liverpool City Council

[2024] NSWLEC 1401

Land and Environment Court

New South Wales

Medium Neutral Citation:

17 Manson Pty Ltd v Liverpool City Council [2024] NSWLEC 1401

Hearing dates:

Conciliation conference 28 May 2024

Date of orders:

12 July 2024

Decision date:

12 July 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

(2) The appeal is upheld.

(3) Development consent is granted to DA-1247/2022, as amended, for the demolition of existing structures, amalgamation of two lots, tree removal, landscape works and construction of a two-storey 100 place child care centre with basement car parking, on land legally described as Lot 393 in DP222642 and 394 in DP222642 and known as 12 – 14 Coonong Street, Busby NSW 2168, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – centre-based child care centre – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 2.3, 2.7, 4.3, 4.4

Education and Care Services National Regulations

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 3.22, 3.23, Ch 3

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

Category:

Principal judgment

Parties:

17 Manson Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Johnson (Solicitor) (Applicant)
D Galpin (Solicitor) (Respondent)

Solicitors:
Miller & Prince Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/40339

Publication restriction:

Nil

JUDGMENT

1. 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 refusal of development application 1247/2022 for the demolition of existing structures, amalgamation of two lots, tree removal, landscape works and construction of a 100 place child care centre with basement parking (DA) at 12-14 Coonong Street, Busby, legally known as Lots 393 and 394 in DP222642 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 May 2024 with subsequent material received by the Court thereafter. I have presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-1247/2022 in accordance with the documents listed at [21] (amended DA).

4. As part of the conciliation conference process, 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 for the amended DA and granting development consent to the amended application subject to conditions of consent.

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. 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 and explained how the jurisdictional prerequisites have been satisfied. 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 set out below.

9. I am satisfied that owners consent accompanied the DA. The Respondent notified the DA between 24 January 2023 to 9 February 2023. Four submissions were received. The Court and the parties heard oral submissions at the commencement of the s 34 conciliation conference.

10. In reaching agreement, the parties have considered the concerns raised.

Liverpool Local Environmental Plan 2008 (LLEP)

11. The subject site is zoned R3 Medium Density Residential pursuant to the LLEP, where the proposed development is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 demolition applies, which is sought in the amended DA.

12. Clause 4.3 height of buildings applies which allows a maximum height of 8.5m. The amended Architectural Plans prepared by Baini Design (architectural plans) show that the amended DA is below the height limit (Dwgs 01 and 20) and at a maximum of 7.8m in height.

13. Clause 4.4 floor space ratio (FSR) applies and allows a maximum of 0.5:1. The amended DA proposes a FSR of 0.48:1 as shown on the architectural plans (Dwg 01).

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)

14. The provisions of s 4.6 of SEPP RH apply to the site. The proposed development is accompanied by a Preliminary Site Investigation Report prepared by Environmental Consulting Services dated 12 November 2022 (PSI). The PSI found that the contamination identified from the presence of fill and potential asbestos from the building materials in the existing dwellings can be managed through implementation of certain measures and that the site is suitable for the proposed sensitive use. All recommendations have been included in the conditions of consent at Annexure A. Accordingly, the parties agree, and I am satisfied, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI)

15. Section 2.48 of SEPP TI applies as the amended DA is within 2m of an underground power line. The relevant authority, Endeavour Energy, have provided conditions which have been included at Annexure A.

16. Chapter 3 Educational establishments and child care facilities of SEPP TI applies to the proposed development.

17. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 of SEPP TI. Based on the Statement of Environmental Effects prepared by Think Planners dated 6 December 2022 and agreed submissions from the parties, I have considered the provisions of ss 3.22, 3.23, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

Conclusion

18. 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.

19. 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.

20. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

21. The Court notes that the Respondent has approved, as the relevant consent authority, under s 38(1) of the EPA Reg to the Applicant amending DA-1247/2022 to rely upon the following amended plans and documents:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	01, Revision F	Compliance Table, Location Plan	Baini Design Pty Ltd	4 June 2024
	02, Revision F	Site Context Plan
	03, Revision F	Site Analysis Plan
	04, Revision F	Demolition Plan
	05, Revision F	9am Shadow Diagram
	06, Revision F	10am Shadow Diagram
	07, Revision F	11am Shadow Diagram
	08, Revision F	12PM Shadow Diagram
	09, Revision F	1PM Shadow Diagram
	10, Revision F	2PM Shadow Diagram
	11, Revision F	3PM Shadow Diagram
	12, Revision F	Site Plan
	13, Revision F	Lower Ground Floor Plan
	14, Revision F	Ground Floor Plan
	15, Revision F	First Floor Plan
	16, Revision F	Roof Plan
	17, Revision F	Elevations
	18, Revision F	Elevations
	19, Revision F	Sections
	20, Revision F	3D Height Plane
	21, Revision F	Kitchen and Laundry Details
	22, Revision F	Typical Nappy Change Detail
	23 Revision F	Craft Bench Details
	24, Revision F	Bottle Prep Detail
	25, Revision F	Schedule of Finishes
	26, Revision F	Lower Ground Calc Plan
	27, Revision F	Ground Floor Calc Plan
	28, Revision F	First Floor Calc Plan
	29, Revision F	Indoor Calc Plan (0 – 2)
	30, Revision F	Indoor Calc Plan (2 – 3)
	31, Revision F	Indoor Calc Plan (3 – 5)
	31.1, Revision F	Lower Ground FSR
	31.2, Revision F	Ground Floor FSR
	31.3, Revision F	First Floor FSR
	32, Revision F	Solar Study Plan – Ground Floor
	33.1, Revision F	Shading Diagram – Ground Floor
	33.2, Revision F	Shading Diagram – First Floor
	34, Revision F	Fencing Detail – Ground Floor
	35, Revision F	Fencing Detail – First Floor
	35.1, Revision F	Axonometric Views
	36, Revision F	Streetscape Elevation
	37, Revision F	Access Detail – Lower Ground Floor
	38, Revision F	Access Detail – Ground Floor
	39, Revision F	Access Detail – First Floor
Landscaping Plans
2	229.24(22)/343’B’	Landscape Plan 1	Iscape Landscape Architects	5 June 2024
	29.24(22)/344’C’	Landscape Plan 2
Stormwater Plans
3	000, Revision D	Cover Sheet Plan	Telford Civil	27 May 2024
	101, Revision D	Stormwater Concept Plan Lower Ground Level
	102, Revision D	Stormwater Concept Plan Ground Level
	103, Revision D	Stormwater Concept Plan Level 1 Sheet 3 of 3
	104, Revision D	Stormwater Concept Plan Roof
	105, Revision D	WSUD Catchment Plan
	106, Revision D	OSD & WSUD Details and Calculation Sheet 1 of 2
	107, Revision D	OSD & WSUD Details and Calculation Sheet 2 of 2
	108, Revision D	Sediment & Erosion Control Plan
	109, Revision D	Miscellaneous Details Sheet
Reports
4	Summary of amendments		Baini Design	6 June 2024
5	Updated Parking & Traffic Impact Assessment		Stanbury Traffic Planning	16 April 2024
6	Environmental Noise Impact Assessment		Day Design Pty Ltd	24 May 2024

Orders

22. The Court orders:

1. The Applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

2. The appeal is upheld.

3. Development consent is granted to DA-1247/2022, as amended, for the demolition of existing structures, amalgamation of two lots, tree removal, landscape works and construction of a two-storey 100 place child care centre with basement car parking, on land legally described as Lot 393 in DP222642 and 394 in DP222642 and known as 12 – 14 Coonong Street, Busby NSW 2168, subject to the conditions at Annexure A.

S Porter

Commissioner of the Court 

Annexure A

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Decision last updated: 12 July 2024