Active Kids Group Pty Ltd v North Sydney Council

[2021] NSWLEC 1231

Land and Environment Court

New South Wales

Medium Neutral Citation:

Active Kids Group Pty Ltd v North Sydney Council [2021] NSWLEC 1231

Hearing dates:

Conciliation conference on 20-21 April 2021

Date of orders:

11 May 2021

Decision date:

11 May 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)  The Applicant is granted leave to amend the development application to rely upon the amended architectural plans referred to in condition A1 of Annexure A.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application as agreed or assessed.

(3)  The Appeal is upheld.

(4)  Development Application No. DA 069/2020 for first floor addition to existing child care centre being new staff room facilities at 37 to 39 Murdoch Street, Cremorne is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: centre based child care – Cremorne Heritage conservation area – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

North Sydney Local Environmental Plan 2013

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

State Environmental Planning Policy (Infrastructure) 2007

State Regional Environmental Planning Policy (Sydney Harbour Catchment) 2005

State Environmental Planning Policy No 55 – Remediation of Land

Texts Cited:

Childcare Planning Guidelines, published by the NSW Department of Planning and Environment

Category:

Principal judgment

Parties:

Active Kids Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
M Staunton (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Sattler & Associates (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/157515

Publication restriction:

No

Judgment

1. COMMISSIONER: An existing child care centre, known as Rhonda’s Cottage, occupies a site at Nos 37 and 39 Murdoch Street, Cremorne at which the Applicant, Active Kids Group Pty Ltd, seeks consent for alterations and additions, including an additional floor to the rear of the site.

2. The Class 1 appeal now before the Court is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by North Sydney Council (the Respondent) of Development Application No. DA 069/2020 that comprises:

• A new set of stairs located in the middle of Indoor Play Area 2 to provide access to a proposed new first floor for staff facilities, as well as storage area, small bottle prep area and staff toilet.

• A new first floor level comprising staff facilities room located on the portion of the site at No 37 Murdoch Street includes a toilet facility with washbasin, and is also proposed to include a kitchenette, dining table, meeting space, storage and other administrative facilities, and balcony.

• Externally, the first-floor addition is weatherboard cladding finish and colorbond metal roof to match the existing finishes of the approved development.

3. Relevantly to these proceedings, a prior consent is operational on the site and in respect of which works are currently underway, in accordance with DA 221/2016.

4. At the commencement of the proceedings, the Court visited the site in the company of the parties and the relevant experts at which time it was apparent that the operations of the child care centre are temporarily restricted to No 39 Murdoch Street while construction associated with the earlier development consent is completed at No 37 Murdoch Street.

5. The appeal was originally listed for hearing before me on 20-21 April 2021. However, at the commencement of the hearing, the Applicant sought an adjournment, unopposed by the Respondent, in order to prepare amended plans. Upon resumption of the hearing, the parties agreed that the amended plans resolve all of the matters in contention between the parties.

6. After a further adjournment, the parties by consent sought for the matter to be re-allocated to me under s 34 of the Land and Environment Court Act 1979 (LEC Act) on the basis that parties had reached agreement, under s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that was acceptable to the parties.

7. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was subsequently filed with the Court on 21 April 2021.

8. The parties ask me to approve their decision as set out in the s34 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 s34 agreement.

9. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [12].

1. The site is within the R3 Medium Density Residential zone pursuant to the North Sydney Local Environmental Plan 2013 (NSLEP), in which centre-based child care facilities are permitted with consent, and wherein the objectives of the zone are as follows:

•  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 encourage the development of sites for medium density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

•  To provide for a suitable visual transition between high density residential areas and lower density residential areas.

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

2. As the site is within the Cremorne Heritage Conservation Area (Cremorne HCA), the provisions of cl 5.10 of the NSLEP apply. I note the application is supported by a Heritage Impact Statement prepared by Weir Phillips dated February 2020, and I accept the agreement of the heritage experts that the amendments made to the plans result in a development that will not adversely impact the Cremorne HCA.

3. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Childcare SEPP) applies to development for the purpose of centre-based childcare facilities, and I am satisfied that the provisions at cll 22, 23, 24, 25 and 26 of the Childcare SEPP are achieved and the proposed development is consistent with the relevant provisions of the Childcare Planning Guidelines.

4. In respect of the satisfaction required of the Court by cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land, I note that as development the subject of the development application relates only to works above the ground level of the site, and is in addition to the earlier development consent granted by DA221/2016, no further analysis of contamination of the ground is required.

5. The site is located within the Sydney Harbour Catchment according to the State Regional Environmental Planning Policy (Sydney Harbour Catchment) 2005. On the basis of the proposed conditions of consent, I am satisfied that the proper treatment and disposal of stormwater and the management of sediment is provided for, and after careful consideration of the wireframe and photomontage views on Drawings SK01-SK04/3, I am also satisfied that the development will not have any unacceptable impacts on views to and from the Harbour and the scale, form, design and siting of the development will not impact upon the scenic quality of the foreshore or the Harbour.

6. As Murdoch Street is a classified road, the provisions of State Environmental Planning Policy (Infrastructure) 2007 apply. In accordance with cl 101(2), I am satisfied that vehicular access to the site is via Reed Lane, and that the scope and nature of the proposed development will not adversely affect the safety, efficiency and ongoing operation of Murdoch Street.

7. Finally, I note that the original development application was accompanied by the owner’s consent, and was notified in accordance with Council Notifications Policy between 22 April 2020 and 6 May 2020.

10. 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.

11. 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.

12. The Court orders that:

1. The Applicant is granted leave to amend the development application to rely upon the amended architectural plans referred to in condition A1 of Annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application as agreed or assessed.

3. The appeal is upheld.

4. Development Application No. DA 069/2020 for first floor addition to existing child care centre being new staff room facilities at 37 to 39 Murdoch Street, Cremorne is approved subject to the conditions in Annexure A.

……………………

T Horton

Commissioner of the Court

Annexure A (240001, pdf)

**********

Decision last updated: 12 May 2021