3133csi Pty Ltd v Campbelltown City Council

[2023] NSWLEC 1300

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

3133CSI Pty Ltd v Campbelltown City Council [2023] NSWLEC 1300

Hearing dates:

Conciliation conference on 7 June 2023

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979.

(2) The appeal is upheld.

(3) Development Application No 1611/2022/DA-C for the demolition of existing structures, and construction of a four-storey mixed use building containing a childcare centre, gymnasium, commercial tenancies and basement car parking, at 31-33 Carlisle Street, Ingleburn, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Campbelltown Local Environmental Plan 2015, cll 5.21, 7.1, 7.13

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

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

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

Texts Cited:

NSW Department of Planning, Industry and Environment, Child Care Planning Guideline

Category:

Principal judgment

Parties:

3133CSI Pty Ltd (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
M Staunton with C Koikas (Applicant)
R Coffey (Respondent)

Solicitors:
Fortis Law Pty Limited (Applicant)
Bartier Perry (Respondent)

File Number(s):

2022/195712

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 1611/2022/DA-C for the demolition of existing structures and construction of a four-storey mixed use building containing a childcare centre, gymnasium, commercial tenancies and basement car parking (the proposal) at 31-33 Carlisle Street, Ingleburn (the site), by Campbelltown City Council (the Council).

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 7 June 2023. I presided over the conciliation conference. 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.

3. 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 development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

5. The Council, as the relevant consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, to include the plans and documents listed under Pt 2, condition 1 of the conditions of consent at Annexure A.

Expert evidence

6. The Council relied on the expert evidence of Luke Joseph (planning), Peter Smith (urban design), and Adam Urszulak (traffic and stormwater).

7. The Applicant relied on the expert evidence of Jonathon Wood (planning), Alan Cadogan (urban design), Matthew McCarthy (traffic) and Mathew Wahbe (stormwater).

8. The experts prepared joint reports which were filed with the Court.

Jurisdictional pre-requisites

9. The site is zoned MU1 Mixed Use pursuant to the Campbelltown Local Environmental Plan 2015 (LEP 2015) and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, are:

• To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.

• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

• To encourage the timely renewal and revitalisation of centres that are undergoing growth or change.

• To provide a focal point for commercial investment, employment opportunities and centre-based living.

10. The site is within the flood planning area under cl 5.21 of LEP 2015. I accept the stormwater experts’ agreement that the considerations under subcl (3) have been addressed and that the development satisfies the criteria under subcl (2).

11. The proposal includes earthworks for which development consent is required, pursuant to cl 7.1 of LEP 2015. I accept the conclusions of the Geotechnical Investigation Report, Preliminary Site Investigation, Detailed Site Investigation and Hazardous Material Survey reports undertaken by Geotechnical Consultations Australia, and stormwater plans prepared by Capital Engineering Consultants, that the requirements of cl 7.1(3) are satisfied.

12. Clause 7.13 Design excellence applies to the proposal under subcl (2). I have considered each of the matters listed under subcl (4), and I am satisfied, and accept the agreement of the urban design experts, that the proposal provides a high standard of architectural design, materials and detailing appropriate to the building type and location; that the form and external appearance of the proposal will improve the quality and amenity of the public domain; and that the proposal does not impact upon view corridors.

13. I accept the conclusions of the site investigation reports that the site is suitable for the proposal, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

14. Pursuant to s 3.3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021, the consent authority, or the Court exercising the functions of the consent authority, must consider any applicable provisions of the Child Care Planning Guideline, before determining the application. I accept the uncontested conclusions of the Statement of Environmental Effects which details compliance of the proposal with the Child Care Planning Guideline.

Conclusion

15. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 7 June 2023 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.

Orders

16. The orders of the Court are:

1. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979.

2. The appeal is upheld.

3. Development Application No 1611/2022/DA-C for the demolition of existing structures and construction of a four-storey mixed use building containing a childcare centre, gymnasium, commercial tenancies and basement car parking, at 31-33 Carlisle Street, Ingleburn, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

195712.22 Annexure A (413139, pdf)

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Amendments

20 June 2023 - Correction of Applicant's appearances.