888 Investments Pty Ltd v Penrith Council

[2022] NSWLEC 1422

Land and Environment Court

New South Wales

Medium Neutral Citation:

888 Investments Pty Ltd v Penrith Council [2022] NSWLEC 1422

Hearing dates:

Conciliation conference on 16 March and 30 May 2022

Date of orders:

19 August 2022

Decision date:

19 August 2022

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

(1) The appeal is upheld.

(2) The Applicant is granted leave to amend Development Application No. DA21/0719 and rely upon the following amended plans and documents which are referenced in Condition 1 at Annexure A.

(3) Development Consent is granted to amended Development Application No. DA21/0719 for the demolition of existing dwellings, tree removal and construction of a two storey, 97 place child care centre over one level of basement carparking subject to the conditions in Annexure A.

(4) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the Development Application in the amount of $5,000.00 within 28 days of the date of these orders.

Catchwords:

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

Legislation Cited:

Education and Care Services National Regulations, regs 107, 108

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

Interpretation Act 1987, ss 5, 30

Land and Environment Court Act 1979, s 34

Penrith Local Environmental Plan 2010, Sch 5, cll 2.7, 4.3, 5.10, 7.1
State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017, Ch 3, Pt 3, cll 22, 23, 25
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021

Category:

Principal judgment

Parties:

888 Investments Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)

Solicitors:
Chris Campbell, Sparke Helmore Lawyers (Respondent)

File Number(s):

2021/332040

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA21/0719 (the DA) by Penrith City Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 1301.5m² parcel of land which is legally described as Lots 21 and 22 in DP 237831 and known as 26-28 Manning Street, Kingswood (the Site). The DA submitted to Council sought consent for the demolition of the existing structures and the construction of a two storey child care centre for 100 places, basement parking for 27 vehicles, outdoor play areas, associated landscaping, drainage and infrastructure and operation of the facility between 7am and 6pm, Monday – Friday.

3. The Development Application was notified by the Respondent from 25 October 2021 to 8 November 2021. A total of three (3) submissions from 2 persons and these submissions have been considered by the Respondent and by the Court.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conferences which were held on 16 March and 30 May 2022.

5. The proposed development for which consent is sought has been amended by the applicant (Amended Development Application) and formed the basis of discussions at the s 34 conciliation conference. At the conciliation conference the parties reached an agreement, based on the amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties filed that agreement and the agreed conditions of consent with the Court on 16 August 2022 and copies of relevant plans and documents referred in the agreement on 9 May 2022.

6. The main changes between the plans as originally submitted to Council and the Amended Development Application plans, the subject of the s 34 agreement, are a reduction in the number of child care places from 100 to 97, an increased setback of the basement, changes to the basement parking, provision of a pitched roof, reconfiguration of the first floor outdoor play area and amended materials to respond to character concerns. The amended plans were uploaded on the NSW Planning Portal on 5 April 2022.

7. The Amended Development Application does not require re-notification as the relevant officer of the Respondent formed the opinion that the environmental impact of the amendments will be the same or less than the original DA and the impact on the owners and occupiers of adjoining land will not be detrimentally affected.

8. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [9] – [12] below.

Satisfaction of jurisdiction

9. The relevant jurisdictional matters in relation to the Penrith Local Environmental Plan 2010 (PLEP) are:

1. The proposed development is characterised as a child care centre which is permissible with consent within the R3 Medium Density Residential zone under PLEP.

2. The child care centre is consistent with the zone objectives, which are set out in the Land Use Table of PLEP, in part, as “to enable other land uses that provide facilities or services to meet the day to day needs of residents” and “to ensure that a high level of residential amenity is achieved and maintained”.

3. Consent for the demolition of the existing structures on the Site are sought as part of the Proposed Development pursuant to cl 2.7 of the PLEP. I am satisfied that demolition of the structures is acceptable provided the demolition is carried out in accordance with the relevant standards and demolition plan.

4. The proposed development complies with the maximum building height of 8.5m under cl 4.3 of PLEP.

5. The Site adjoins Kingswood Public School which is listed as an item of environmental heritage under Sch 5 of PLEP. I am satisfied from the evidence that there is no detrimental impact on the item when considered under cl 5.10(4) of PLEP.

6. Under cl 7.1 of the PLEP, development consent is required for earthworks to ensure they will not have a detrimental impact, unless the earthworks are (a) exempt development or (b) ancillary to development that is permitted without consent. In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider various matters set out in cl 7.1 before granting development consent. I am satisfied that the proposal will not have a detrimental impact on environmental functions and processes, neighbouring properties, cultural or heritage items, or features of the surrounding land.

7. The parties agree that the Proposed Development as amended can be approved having regard to the controls in the Penrith Development Control Plan 2014 (DCP). From the evidence I am satisfied that the Proposed Development is consistent with the relevant provisions of the DCP.

10. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. The Applicant has prepared a Preliminary Site Investigation (PSI) which undertakes an analysis of the historical uses and concludes that there is a low potential for significant contamination of the Site and that the proposed development and use of the site as a child care centre are suitable providing the recommendations of the PSI are implemented. I am satisfied that the conditions of consent adopt the recommendations in the PSI and therefore that SEPP Resilience is satisfied.

11. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) came into force on 1 March 2022. Whilst the SEPP transfers the provisions of the State Environmental Planning Policy (Educational Establishments and Childcare Facilities) (Childcare SEPP) to Ch 3 of the Transport SEPP, the provisions of the Childcare SEPP continue to apply to the DA by dint of ss 5(6) and 30(2)(d) of the Interpretation Act 1987.

12. The Childcare SEPP applies to the DA, in particular Pt 3, which was transferred to Ch 3 of the Transport SEPP. I am satisfied from the evidence that the DA complies with the requirements of s 3.23 of the Transport SEPP (formerly cl 23 Childcare SEPP), including the requirements of the Child Care Planning Guideline. I am also satisfied from the evidence that the non-discretionary development standards at cl 25 of the Child Care SEPP (s 3.26 (2) of the Transport SEPP) are complied with. Concurrence from the Department of Education under cl 22(2) of the Childcare SEPP is not required because the DA complies with:

• regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, and

• regulation 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations.

Disposal of proceedings in accordance with the parties’ decision

13. 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’ agreement.

14. The Court notes that:

1. The Applicant has amended the application with the consent of the Respondent Council.

2. The Applicant has uploaded the amended application onto the NSW Planning Portal on 5 April 2022.

3. The applicant filed the amended application with the Court on 9 May 2022.

Orders

15. The Court orders that:

1. The appeal is upheld.

2. The Applicant is granted leave to amend Development Application No. DA21/0719 and rely upon the following amended plans and documents which are referenced in Condition 1, at Annexure A.

3. Development Consent is granted to amended Development Application No. DA21/0719 for the demolition of existing dwellings, tree removal and construction of a two storey, 97 place child care centre over one level of basement carparking, subject to the conditions in Annexure A.

4. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the Development Application in the amount of $5,000.00 within 28 days of the date of these orders.

……………………….

L Sheridan

Acting Commissioner of the Court

Annexure A (287768, pdf)

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Decision last updated: 19 August 2022