Ali v Liverpool City Council

[2022] NSWLEC 1044

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ali v Liverpool City Council [2022] NSWLEC 1044

Hearing dates:

Conciliation conference on 24 and 26 November 2021, 14 and 17 December 2021

Date of orders:

11 February 2022

Decision date:

11 February 2022

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 Applicant is to pay those costs of the Respondent thrown away as agreed or assessed.

(2) The appeal is upheld.

(3) Development Application No. DA-450/2021, for the partial demolition of the existing dwellings and alterations and additions to convert the existing dwellings into an eighteen (18) place child care centre with car parking, site works, signage and landscaping on land legally described as Lot 1444 in DP814913, known as 34 Dotterel Street, Hinchinbrook NSW 2168, is approved subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Biodiversity Conservation Act 2016, Part 7

Contaminated Land Management Act 1997

Education and Care Services National Regulations

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 2.3, 2.7, 4.3, 4.4, 5.21, 7.7, 7.18, 7.31

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy No 64— Advertising and Signage (2001), cl 11

State Environment Planning Policy (Education Establishments and Child Care Facilities) 2017, cll 22, 23, 25

Texts Cited:

Child Care Planning Guideline

Category:

Principal judgment

Parties:

Nishar Ali (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
J Farrell (Respondent)

Solicitors:
Swaab Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2021/255847

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an Appeal against the deemed refusal of a development application (DA) DA-450/2021 seeking development consent for the partial demolition and alterations and additions to convert the existing dwellings into an eighteen (18) place child care centre with car parking, site works, signage and landscaping (the Proposed Development) at Lot 1444 in Deposited Plan 814913, 34 Dotterel Street, Hinchinbrook, NSW 2168 (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 was held on 24 and 26 November 2021, 14 and 17 December 2021. 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 development application 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified and explained how the jurisdictional prerequisites of relevance in these proceedings have been satisfied in an agreed statement of jurisdictional prerequisites. I summarise and extract the relevant parts of the agreed statement of jurisdictional prerequisites below.

6. The owners of the Site are the Applicant and Sameema Ali. Consent for the Proposed Development is sought by both owners of the Site.

7. The Proposed Development as lodged was notified in accordance with Council’s notification policy for 15 days and two submissions were received objecting to the Proposed Development. The amendment to the Proposed Development does not require re-notification as the relevant officer of the Respondent has formed the opinion that the environmental impact of the amendments will be the same or lesser than the original proposal and that the impact on the owners and occupiers of adjoining land will not be detrimentally affected in any manner.

8. An objector to the Proposed Development made a submission at the section 34 conciliation conference which has been taken into account by the provision of revised traffic documentation.

9. The Statement of Facts and Contentions filed by the Respondent refers to a number of environmental planning instruments as being relevant to the development. These environmental planning instruments contain provisions which set out jurisdictional prerequisites and the parties have summarised how these have been satisfied as follows:

1. In relation to the Liverpool Local Environmental Plan 2008 (LLEP) the following matters are relevant:

1. The Site is zoned R2 – Low Density Residential under the LLEP. Child care centres are permissible with development consent in the R2 zone.

2. Clause 2.3(2) requires that regard be had to the zone objectives. The parties agree that consistent with the zone objectives the Proposed Development will:

1. provide for the housing needs of the community within a low density residential environment.

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

3. provide a suitable low scale residential character commensurate with a low dwelling density.

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

3. Clause 2.7 requires development consent for demolition. That application for consent is part of the Proposed Development.

4. Clause 4.3 provides in effect that the maximum building height for any building on the part of the Site is not to exceed 8.5 m. The maximum height of the proposed development is 6.60 m which complies with this clause.

5. Clause 4.4 provides in effect that the Floor Space Ratio (FSR) applying to the Site is 0.5:1. The Amended DA provides a FSR of 0.3:1 which complies with this clause.

6. The parties agree that cl 5.21 (flood planning) does not apply to the Site because it is not considered to be within the flood planning area for the purposes of this clause.

7. Clause 7.7 (acid sulfate soils): the Site is not affected by acid sulfate soils for the purposes of this clause.

8. Clause 7.18 (development in areas subject to potential aircraft noise): the Site is outside of the ANEF 20 contour and accordingly the provisions of cl 7.18(2) do not apply.

9. For the purposes of cl 7.31 relating to earthworks, the parties agree that subject to conditions of consent, that the DA can be approved considering the following matters:

1. the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

2. the effect of the Proposed Development on the likely future use or redevelopment of the land,

3. the quality of the fill or the soil to be excavated, or both,

4. the effect of the proposed development on the existing and likely amenity of adjoining properties,

5. the source of any fill material and the destination of any excavated material,

6. the likelihood of disturbing relics,

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

2. Clause 7(1) of the State Environmental Planning Policy No 55— Remediation of Land (SEPP 55) provides that a consent authority must not consent to the carrying out of any development on land unless—

1. it has considered whether the land is contaminated,

2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

3. Further, cl 7(2) of SEPP 55 provides that “before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.”

4. The Applicant has prepared a Detailed Site Investigation Report (DSI) and Remediation Action Plan (RAP) for the purposes of cl 7(1) and (2) of the SEPP 55. The DSI concludes that the Site can be made suitable for the proposed childcare centre once remediated in accordance with the RAP. The following conditions have been inserted in response to the DSI and RAP:

1. Condition 15 – Requiring an Unexpected Finds Protocol to be prepared.

2. Condition 71 – Requiring that the remediation works be carried out in accordance with the RAP, SEPP 55, National Environment Protection (Assessment of Site Contamination) Measure and guidelines in force under the Contaminated Land Management Act 1997.

3. Condition 109 – Requiring that a Validation Report be prepared.

5. The State Environment Planning Policy (Education Establishments and Child Care Facilities) 2017 (Childcare SEPP) applies to the Proposed Development, in particular Part 3. Concurrence from the Department of Education under cl 22(2) of the Childcare SEPP is not required because the DA complies with:

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

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

6. The Proposed Development has considered the applicable matters of the Child Care Planning Guideline, as required under cl23 of the Childcare SEPP as set out in the Statement of Environmental Effects (SEE) at pp 12 – 17 filed with the Class 1 Application.

7. The parties also agree that the Proposed Development complies with the non-discretionary development standards at cl 25 of the Childcare SEPP (SEE at page 12).

8. The Proposed Development intends to construct business signage on the proposed building. Accordingly, development consent is required under cl 11 of State Environmental Planning Policy No 64— Advertising and Signage (2001) (SEPP 64). In accordance with cl11(2), the proposed signage:

1. is consistent with the objectives of the SEPP 64;

2. has been assessed under Schedule 1 of the SEPP 64;

3. the proposal is acceptable in terms of its impacts, and

4. satisfies all relevant requirements of the SEPP 64.

9. The Site is subject to the broad planning principles contained within the Greater Metropolitan Regional Environmental Plan No 2— Georges River Catchment (GMREP No.2). The aims and objectives and broad Planning Principles must be considered and achieved, where possible, in the carrying out of development within the catchment. The Proposed Development satisfies the aims and objectives of the GMREP No.2 given the environmental safeguards proposed by the development including the drainage concept and the erosion and sediment controls that will be in place pursuant to the Concept Drainage Plan prepared by Rammy Associates Pty Ltd dated 10 November 2021 and the Sediment & Erosion Control Plan prepared by Rammy Associates Pty Ltd dated 10 November 2021.

10. The parties agree that the Proposed Development does not trigger the need for a biodiversity development assessment report for the purposes of Part 7 of the Biodiversity Conservation Act 2016.

10. 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 refer to and adopt the reasons given by the parties.

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. The Court notes:

1. That the Applicant has amended Development Application No. DA-450/2021 with the consent of Liverpool City Council to incorporate the amended plans and documents (Amended Development Application) listed as follows:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
Drawing No. A000 Issue DA04	Cover Page	Design M Studio	24 November 2021
Drawing No. A100 Issue DA04	Site Plan
Drawing No. A101 Issue DA04	Site Analysis
Drawing No. A102 Issue DA04	Demolition Plan
Drawing No. A103 Issue DA04	Signage & Line Marking Plan
Drawing No. A200 Issue DA04	Ground Floor
Drawing No. A201 Issue DA04	Roof Plan
Drawing No. A300 Issue DA04	Elevations 1 of 2
Drawing No. A301 Issue DA04	Elevations 2 of 2
Drawing No. A302 Issue DA04	Elevations with Fence 1 of 2
Drawing No. A303 Issue DA04	Elevations with Fence 2 of 2
Drawing No. A304 Issue DA04	Streetscape Elevation
Drawing No A400 Issue DA04	Sections
Drawing No A500 Issue DA04	Shadow Diagram 1 of 3
Drawing No A501 Issue DA04	Shadow Diagram 2 of 3
Drawing No A502 Issue DA04	Shadow Diagram 3 of 3
Drawing No A600 Issue DA04	Window Schedule
Drawing No A601 Issue DA04	Window Schedule
Drawing No A602 Issue DA04	Door Schedule
Drawing No A603 Issue DA04	Schedule of Finishes
Drawing No A701 Issue DA04	Evacuation Plan
Drawing No A800 Issue DA04	Kitchen - Plan
Drawing No A801 Issue DA04	Kitchen – Elevations 1 of 2
Drawing No A802 Issue DA04	Kitchen – Elevations 2 of 2
Drawing No A803 Issue DA04	Kids WC - Plan
Drawing No A804 Issue DA04	Kids WC – Elevations 1 of 2
Drawing No A805 Issue DA04	Kids WC – Elevations 2 of 2
Drawing No A806 Issue DA04	Business Signage
Drawing No A807 Issue DA04	Perspectives
Landscape Plans
LPS34/22 - 150 Revision E Page 1	Hardscape/Site Plan	Conzept Landscape Architects	24 November 2021
LPS34/22 - 150 Revision E Page 2	Landscape Plan
LPS34/22 - 150 Revision E Page 3	Specification & Detail
LPS34/22 - 150 Revision E Page 4	Details
Engineering Plans
Drawing No DA-01 – Rev C	Drainage Layout Plan	Rammy Associates Pty Ltd	10 November 2021
Stormwater Plans
Drawing No SE-01 – Rev A	Sediment and Erosion Control Plan	Rammy Associates Pty Ltd	10 November 2021

Description	Author	Date
Schedule of Amendments	Design M Studio	24 November 2021
Acoustic Inspection Compliance Certificate	Day Design Pty Ltd	21 October 2021
Letter of Response to Contentions	McLaren Traffic Engineering	27 October 2021
Supplementary Letter of Response to Council Comments	McLaren Traffic Engineering	22 November 2021
Letter of Response to Council Comments	McLaren Traffic Engineering	16 November 2021
Plan of Management – Version 10	Early Education Solutions	24 November 2021
Preliminary Site Investigation Report	Geotesta	24 November 2021
Detailed Site Investigation Report	Harwood Environmental Consultants	15 December 2021
Remediation Action Plan	Harwood Environmental Consultants	14 December 2021
Waste Management Plan	Dickens Solutions	October 2021

2. That the Amended Development Application has been lodged on the NSW planning portal on 17 December 2021.

3. That the Applicant has subsequently filed the Amended Development Application with the Court on 17 December 2021.

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 thrown away as agreed or assessed.

2. The appeal is upheld.

3. Development Application No. DA-450/2021, for the partial demolition of the existing dwellings and alterations and additions to convert the existing dwellings into an eighteen (18) place child care centre with car parking, site works, signage and landscaping on land legally described as Lot 1444 in DP814913, known as 34 Dotterel Street, Hinchinbrook NSW 2168, is approved subject to the conditions at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (460021, pdf)

Architectural Plans (3812797, pdf)

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Decision last updated: 11 February 2022