Abbas v Canterbury-Bankstown Council

[2023] NSWLEC 1366

Land and Environment Court

New South Wales

Medium Neutral Citation:

Abbas v Canterbury-Bankstown Council [2023] NSWLEC 1366

Hearing dates:

Conciliation conference on 16 June 2023

Date of orders:

14 July 2023

Decision date:

14 July 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicants are to pay those costs of the Respondent that have been thrown away as a result of the Applicants being allowed to file the Amended Development Application agreed in the amount of $7,500.00.

(2) The appeal is upheld.

(3) Development application no. DA-794/2022 for the demolition of existing structures, tree removal and the construction of a two-storey centre-based child care facility for 160 children with basement parking at 274-276 Hector Street, Bass Hill, NSW, is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:

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

Legislation Cited:

Bankstown Local Environmental Plan 2015, cll 2.7, 4.3, 4.4, 6.2, 6.6, 6.8

Canterbury-Bankstown Local Environmental Plan 2023, cl 1.8A

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

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, s 3.23

Texts Cited:

NSW Department of Planning, Industry and Environment Child Care Planning Guidelines 2021

Category:

Principal judgment

Parties:

Mohomed Abbas (First Applicant)
Zoubaida Abbas (Second Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
M Staunton (Applicants)
M Bonanno (Solicitor)(Respondent)

Solicitors:
Abbas Jacobs Lawyers (Applicants)
Canterbury-Bankstown Council (Respondent)

File Number(s):

22/376730

Publication restriction:

No

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 DA-794/2022 for demolition of existing structures, tree removal and the construction of a two-storey centre-based child care facility for 160 children with basement parking (the Proposed Development) at 274 and 276 Hector Street Bass Hill legally described as Lot 4 & 5 in DP23658 (the Site).

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 has been held on 16 June 2023. I have presided over the conciliation conference.

3. 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. This decision involved the Court upholding the appeal and granting development consent to the Proposed Development subject to conditions.

4. 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. 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.

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

6. 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 to be various provisions in the Bankstown Local Environmental Plan 2015 (BLEP), and other relevant State Environmental Planning Policies. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement which I summarise below.

7. Compliance with the BLEP is addressed generally in the Statement of Environmental Effects (SEE) prepared by Planning Ingenuity dated 10 October 2022, filed with the Class 1 Application on 24 January 2023. I have had regard to the SEE and I address the specific jurisdictional prerequisites of the BLEP in this judgment.

8. Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP 2023) commenced on 23 June 2023. CBLEP 2023 is a consolidation of the BLEP and the Canterbury Local Environmental Plan 2012. Pursuant to cl 1.8A of CBLEP 2023 the Proposed Development is to be determined as if CBLEP 2023 had not commenced. The relevant development standards and clauses of the BLEP are retained in CBLEP 2023.

9. The Proposed Development is permissible with consent in the R2 Low Density Residential zone.

10. The Proposed Development proposes demolition of the existing structures on the Site and cl 2.7 of the BLEP provides that demolition is permissible with consent.

11. The Proposed Development is located wholly below the maximum height of building development standard of 9 metres (m) (cl 4.3(2), BLEP).

12. The floor space ratio (FSR) of the Proposed Development is less than the FSR development standard of 0.4:1 (cl 4.4(2A), BLEP).

13. In order to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, cl 6.2 of the BLEP requires the consent authority to consider the following matters in deciding whether to grant development consent for earthworks:

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

(b)  the effect of the 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 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 waterway, drinking water catchment or environmentally sensitive area,

(h)  any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

14. I am satisfied that the Respondent council has considered the matters listed in cl 6.2(3) of the BLEP listed above as I note that the parties agree as follows at [30] of the Jurisdictional Statement:

“the Proposed Development has been designed to ensure that the excavation will have a limited impact on the topography of site and neighbouring properties and will not have a visual impact when viewed from the public domain. The proposed excavation will not have a detrimental effect on drainage patterns with finished ground levels matching closely to existing ground levels throughout the site. The proposal is compatible with the zoning and will ensure future use will not have an impact on neighbours. The proposed excavation will be done to ensure stability of the subject site and neighbouring properties. Excavated material will be managed in accordance with the waste management plan. Disturbance of relics is not anticipated given the land has been previously disturbed. The site is not in proximity to water catchments or environmentally sensitive land. Council conditions to be followed during construction phase.”

15. The Site is not affected by Bankstown Airport Australia Noise Exposure Forecast Contours and the jurisdictional prerequisites of cl 6.6 of the BLEP do not apply regarding aircraft noise.

16. There are special provisions which apply to centre-based childcare facilities (cl 6.8, BLEP) which provide that development consent must not be granted for the purpose of a centre-based child care facility on land if the vehicular access to that land is from:

(a) a classified road, or

(b) a cul-de-sac road or a road where the carriageway between kerbs is less than 10 metres.

17. I am satisfied that the Proposed Development is not prohibited pursuant to cl 6.8 of the BLEP because the Site is not located on a classified road or a cul-de-sac and because the carriageway width of Hector Street is greater than 10m between kerbs.

18. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

19. The Court is satisfied that consent can be granted because the Applicants have filed a Preliminary Site Investigation report (PSI) with limited sampling prepared by eiaustralia dated 23 March 2023 and filed 3 July 2023 which concludes that the Site can be made suitable for the Proposed Development subject to the implementation of the recommendations in Section 10 of the PSI.

20. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetations. The Court notes that the parties agree that the Site is within a well-established residential area, having historically been used for urban purposes and that the Proposed Development seeks consent to remove identified trees and vegetation on the Site with proposed replacement planting to soften the built form and assist with maintaining privacy to neighbouring properties.

21. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across the State.

22. I am satisfied that the Respondent council has taken into consideration the applicable provisions of the NSW Department of Planning, Industry and Environment Child Care Planning Guidelines 2021 (Child Care Planning Guidelines), (s 3.23, Transport and Infrastructure SEPP). The parties addressed this as follows in their Jurisdictional Statement at [46]:

“Clause 3.26 of the Transport and Infrastructure SEPP sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority from requiring more onerous standards for those matters. Clause 3.26(2) of the Transport and Infrastructure SEPP sets out non-discretionary development standards for the purpose of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, clause 3.26(2)(b) provides the requirements for indoor or outdoor space. The proposed development provides at least 3.25m² of unencumbered indoor play space and at least 7m² of unencumbered outdoor play space which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations, which requires 3.25m² of unencumbered indoor play space and 7m² of unencumbered outdoor play space.”

23. I have also considered the SEE which at Annexure B, addresses compliance with the Child Care Planning Guidelines which similarly addresses the Education and Care Services National Regulations 2011 in relation to the following additional controls and requirements:

1. licensing and approvals processes, including documentation requirements;

2. facilities and equipment requirements;

3. staffing requirements;

4. child number requirements;

5. operational requirements;

6. administrative requirements;

7. probity check requirements; and

8. various miscellaneous requirements.

24. For these 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.

25. 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.

Notations:

26. The Court notes that:

1. Canterbury-Bankstown Council as the relevant consent authority approves, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicants amending development application DA-794/2022 to rely upon the following amended plans and documents (Amended Development Application):

Plan Number	Plan Name	Dated	Revision	Prepared By
Demolition Plan	22028 – 02	19/06/2023	M	ES Design
Proposed Site Plan	22028 – 03	19/06/2023	M	ES Design
Proposed Basement Floor Plan	22028 – 04	19/06/2023	M	ES Design
Proposed Ground Floor Plan	22028 – 05	19/06/2023	M	ES Design
Proposed First Floor Plan	22028 – 06	19/06/2023	M	ES Design
Proposed Roof Plan	22028 – 07	19/06/2023	M	ES Design
East and South Elevations	22028 – 08	19/06/2023	M	ES Design
West and North Elevations	22028 – 09	19/06/2023	M	ES Design
Section View A and Section View B	22028 – 10	19/06/2023	M	ES Design
Section View C and Section View D	22028 – 11	19/06/2023	M	ES Design
Driveway Grade Details	22028 – 12	27/06/2023	N	ES Design
Schedule of External materials, Colours and Finishes	22028 – 13	19/06/2023	M	ES Design
Consolidation Plan	22028 – 21	19/06/2023	M	ES Design
Window and Door Schedules	22028 – 29	19/06/2023	M	ES Design
Front Fence Detail	22028 – 30	19/06/2023	M	ES Design
Ground Floor Kitchen Plan and Elevations	22028 – 31	19/06/2023	M	ES Design
Ground Floor Landscape Plan	LDA-101	21/06/2023	E	Ground Ink
First Floor Landscape Plan	LDA-102	21/06/2023	E	Ground Ink
Plant Palette	LDA-201	21/06/2023	E	Ground Ink
Landscape Details	LDA-301	21/06/2023	E	Ground Ink
Stormwater Management Plan	SW001-023 and ER001	21/06/2023	E	Capital Engineering Consultants
Reports
Title	No.	Author	Rev	Date
Environmental Noise Impact Assessment Proposed Child Care Centre 274-276 Hector Street, Bass Hill, NSW	8	Day Design Pty Ltd,	D	14 June 2023
Emergency and Evacuation Plan	Australian Fire Services	1.2	24 June 2023
Plan of Management Proposed Child Care Centre 274-276 Hector Street, Bass Hill NSW 2197	Lynda Campbell	8	27 June 2023
Preliminary Site Investigation with Limited Sampling 274-276 Hector Street, Bass Hill NSW	EI Australia Pty Ltd	0	10 March 2023
Operational Waste management Plan	3959	ELEPHANTS FOOT CONSULTING. PTY LTD	C	11 April 2023
Food Premises Design Compliance Statement	Food Safety International	14 June 2023
Traffic Impact Assessment 274 – 276 Hector Street, Bass Hill	PDC Consultants	01	11 May 2023

2. The Applicants filed the Amended Development Application with the Court on 3 July 2023.

Orders

27. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicants are to pay those costs of the Respondent that have been thrown away as a result of the Applicants being allowed to file the Amended Development Application agreed in the amount of $7,500.00.

2. The appeal is upheld.

3. Development application no. DA-794/2022 for the demolition of existing structures, tree removal and the construction of a two-storey centre-based child care facility for 160 children with basement parking at 274-276 Hector Street, Bass Hill, NSW, is determined by the grant of development consent subject to the conditions in Annexure A.

E Espinosa

Commissioner of the Court

**********

Annexure A

Decision last updated: 14 July 2023