888 Holdings NSW Pty Ltd v Penrith City Council

[2023] NSWLEC 1551

Land and Environment Court

New South Wales

Medium Neutral Citation:

888 Holdings NSW Pty Ltd v Penrith City Council [2023] NSWLEC 1551

Hearing dates:

Conciliation conference on 20 June 2023

Date of orders:

21 September 2023

Decision date:

21 September 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the sum of $3,660.

(2) The appeal is upheld.

(3) Development consent is granted to Development application No. DA22/1168 for the demolition of existing structures, tree removal and construction of child care facility for 86 children with basement parking and associated works at 12 and 14 Manning Street, Kingswood, subject to the conditions set out in Annexure 'A'.

Catchwords:

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

Legislation Cited:

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

Penrith Local Environmental Plan 2010, cll 4.3, 4.4, 7.1, 7.4, 7.7, 7.30

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.23, 3.26

Texts Cited:

Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021

Category:

Principal judgment

Parties:

888 Holdings NSW Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
B Koytz (Solicitor) (Respondent)

Solicitors:
Penrith City Council (Respondent)

File Number(s):

2023/19714

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of Penrith City Council’s deemed refusal of Development Application DA 22/1168 (the DA) for the demolition of existing structures, tree removal and construction of childcare facility for 86 children with basement parking and associated works at 12 and 14 Manning Street, Kingswood and legally described as Lot 14 DP 237831 and Lot 15 DP 237831 (The Site). These proceedings have been brought pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 June 2023. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached an in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the Development Application.

4. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted several further adjournments so that those amendments agreed to between the parties could be incorporated into agreed conditions of consent.

5. This agreement between the parties involves the Court upholding the appeal and granting development consent to the DA subject to those agreed conditions of consent.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 19 July 2023.

7. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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 they have been satisfied. From this I note the following:

1. Owner’s consent was provided with the Class 1 application.

2. The Development Application was advertised in the local paper from 22 December and notified between 25 December 2022 until 30 January 2023. Six written submissions were received during the notification period against the proposal. One objector attended the s 34 conference to give evidence. The parties submit and I concur that all issues raised in submissions by residents have been taken into consideration and satisfactorily addressed.

3. The Development Application, as amended, before the Court, seeks development consent for a centre based childcare centre. The parties submit and I agree that proposed development is permissible in the R3 Medium Density Residential zone under the Penrith Local Environmental Plan 2010 (PLEP).

4. The parties submit and I agree that the Proposed Development is consistent with the objectives of that zone, which provide:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for a concentration of housing with access to services and facilities.

•  To enhance the essential character and identity of established residential areas.

•  To ensure that a high level of residential amenity is achieved and maintained.

•  To ensure that development reflects the desired future character and dwelling densities of the area.

5. The parties agree and I accept that the Proposed Development complies with cl 4.3 of the PLEP as the maximum building height for any building on the part of the Site does not exceed 8.5 metres.

6. The parties submit and I accept that the Site is not mapped under cl 4.4 of PLEP, and there is no development standard for a maximum floor space ratio that applies to the Site.

7. For the purposes of cl 7.1 of PLEP relating to earthworks, the parties submit and I accept that, subject to conditions of consent, the DA can be approved, as the following matters in cl 7.1(3) have been considered:

(a)  the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

(b)  the effect of the proposed development on the likely future use or redevelopment of the land,

(c)  the quality of the fill or the soil to be excavated, or both,

(d)  the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e)  the source of any fill material and the destination of any excavated material,

(f)  the likelihood of disturbing relics,

(g)  the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

8. In relation to cl 7.1 of PLEP:

• The Applicant has submitted detailed stormwater design which will ensure that there are no detrimental impacts on drainage patterns in the locality. A geotechnical report was lodged with the application and concludes that soil stability is sufficient for the proposed development to be adequately built and not have adverse impacts on the land.

• The earthworks are within the boundaries of the Site and will enable the likely future use and or redevelopment of the land by the provision of basement parking.

• Excavated soils will be reused on Site where appropriate. Any excavated material that is required to be removed from the Site will be lawfully disposed of. The geotechnical report lodged with the application makes recommendations for placement and type of filling, which will be complied with.

• The proposed excavation and earthworks will have a temporary impact on adjoining properties during the construction phase. The geotechnical report confirms that the proposal will not have any long-term amenity impacts on adjoining properties.

• It is unlikely that fill will be required to be imported to the Site, where it is, clean fill will be obtained. Any excavated material that cannot be used on Site will be lawfully disposed of.

• The Site is not listed on the Aboriginal Heritage Information Management System (AHMS) register as containing any relics and it is unlikely that European relics would be located on the Site due to its past use of modern residential use and historical farming.

• The DA is supported by a Stormwater Quality Management Plan which will be complied with to ensure that there are no adverse impacts.

9. Clause 7.4 Sustainable development of PLEP, requires the consent authority to have regard to the principles of sustainable development. The parties submit and I accept that that and the proposal incorporates design elements to support principles of sustainable development.

10. The parties submit and I accept that the proposal is in accordance with cl 7.7 of PLEP as it is capable of being serviced for water, electricity, sewerage, stormwater drainage and vehicular access.

11. Clause 7.30 Urban Heat of PLEP requires the consent authority to be satisfied that planning and design measures are incorporated to reduce urban heat island effect. The parties submit and I agree that the proposed building design includes passive design measures to ensure thermal performance including a high degree of passive cooling, the landscape design maximises canopy trees on the Site and rainwater tanks have been installed to retain water in the landscape.

12. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the Site. Chapter 3 Educational establishments and child care facilities of the SEPP applies to the proposed development. Section 3.23 of the SEPP requires a consent authority to consider the Department of Planning, Industry and Environment, Childcare Planning Guideline, 2021 (Childcare Planning Guideline) when determining a development application. The parties submit and I am satisfied that the matters for consideration under the Childcare Planning Guideline have been addressed in the Statement of Environmental Effects (SEE) and the proposal complies with the non-discretionary standards for centre-based childcare facilities at s 3.26 of the Transport and Infrastructure SEPP. I am also satisfied that the proposal complies with the relevant matters under the Child Care Planning Guidelines and the Education and Care Services National Regulations 2011.

13. The Development Application was accompanied by a Preliminary Site Investigation report. Based on the Preliminary Site Investigation, which identifies the current use of the Site for residential purposes and the parties’ submission, I am satisfied that the Site is suitable for the proposed use pursuant to the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021.

9. For the above reasons 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 am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notes

10. The Court notes that:

1. The parties have reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, being a decision that the Court could have made in the proper exercise of its functions.

2. The amended plans referred to in condition 1 of the conditions of consent at Annexure A were filed with the Court on 20 July 2023.

3. Penrith City Council, as the relevant consent authority, has agreed pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA22/1168, the subject of these proceedings, to rely on the amended plans specified in Annexure A.

Conclusion

11. 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.

12. 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.

Orders

13. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the sum of $3,660.

2. The appeal is upheld.

3. Development consent is granted to Development application No. DA22/1168 for the demolition of existing structures, tree removal and construction of child care facility for 86 children with basement parking and associated works at 12 and 14 Manning Street, Kingswood, subject to the conditions set out in Annexure 'A'.

……………………….

L Sheridan

Acting Commissioner of the Court

Annexure A (288818, pdf)

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Decision last updated: 21 September 2023