Ambey Property v Cumberland Council

[2024] NSWLEC 1545

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ambey Property v Cumberland Council [2024] NSWLEC 1545

Hearing dates:

Conciliation conference on 1 August 2024

Date of orders:

05 September 2024

Decision date:

05 September 2024

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The Applicant is directed to file the amended development application the subject of Order (1) within 7 days of the date of this Order.

(2) The Applicant is to pay the Respondent’s costs “thrown away” as a result of the Amended Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in the sum of $1,200, to be paid within 28 days of judgment being delivered.

(3) The appeal is upheld

(4) Development Application No. 2023/0123 for the demolition of existing structures, removal of two (2) trees, construction of a 56 place centre based child care facility with associated landscaping, and stormwater drainage works on land legally described as Lot 11 in Deposited Plan 1052777 and known as 63 McArthur Street, Guildford is determined by the grant of consent subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – development application – centre based child care centre - conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Cumberland Local Environmental Plan 2021, ss. 2.7, 4.3, 4.4, 5.21, 6.1, 6.2, 6.4, 6.7

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48, Chapter 3, ss 3.22, 3.23

Texts Cited:

Child Care Planning Guideline

Education and Care Services National Regulations

Category:

Principal judgment

Parties:

Ambey Property (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Cumberland Council (Respondent)

File Number(s):

2024/28573

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA2023/0123 for demolition of existing structures, removal of two (2) trees and the construction of a sixty (60) place centre based child care facility comprising two storeys over basement car parking with associated landscape and stormwater drainage works on land legally described as Lot 11 in DP 1052777 and known as 63 McArthur Street, Guildford by Cumberland Council.

2. The Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was held on 1 August 2024 with subsequent material received by the Court thereafter. I have presided over the conciliation conference.

3. The Respondent, as the relevant consent authority has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending DA2023/0123 in accordance with the documents listed at Annexure A (amended DA).

4. As part of the conciliation conference process, 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 for the amended DA and granting development consent to the amended application subject to conditions of consent.

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. I have considered the contents of the jurisdictional statement together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. 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.

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

Jurisdictional matters

8. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1. Owner’s consent accompanied the DA being an application made by the owners of the site.

2. The Respondent notified the DA between 13 and 27 April 2023. No submissions were received. The Court and the parties heard oral submissions at the commencement of the s 34 conciliation conference.

3. In reaching agreement, the parties have considered the concerns raised.

Cumberland Local Environmental Plan 2021 (CLEP)

1. The development works are for the purposes of a centre based child care centre, which is a permissible use in the R2 – Low Density Residential zone in which the site is located, pursuant to the CLEP.

2. The development is consistent with the objectives of the R2 – Low Density Residential zone including notably “to enable other land uses that provide facilities or services to meet the day to day needs of residents”.

3. Demolition is permissible with consent under cl 2.7 of CLEP and consent is sought for demolition as part of the subject application.

4. The proposed development complies with the maximum height of building development standard (maximum proposed height of 8.4m where a maximum of 9m applies) in accordance with cl 4.3 of CLEP.

5. There is no applicable maximum floor space ratio applying to the land in accordance with cl 4.4 of CLEP.

6. A very small part of the site is mapped as being within the flood planning area to which cl 5.21 of CLEP applies. Subsection (2) requires that development consent must not be granted unless the consent authority is satisfied of the matters listed. Further subsection (3) requires specific matters to be taken into consideration. Council has identified in the Statement of Facts and Contentions (SOFAC) that it is satisfied of the relevant matters in respect of cl 5.21(2) and (3) in respect of flood function and behaviour, risk and environmental impact. Having regard to the minor affection, proposed design and Council assessment I am also satisfied in respect of the relevant matters.

7. The site is mapped as having Class 5 Acid Sulfate Soils but is not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres AHD. Accordingly, no further assessment is required in respect of acid sulfate soils in accordance with cl 6.1 of CLEP.

8. Development consent is required under cl 6.2 of CLEP for earthworks and cl. 6.2(3) sets out matters which must be considered in deciding whether to grant consent to earthworks. In accordance with the requirements of cl 6.2, I am satisfied that the submitted stormwater management plans (Telford Civil dated 31 July 2024), civil engineering plans (Telford Civil dated 30 July 2024), OSD Stormwater Concept Plan Submission – Short Form (Telford Consulting dated 11 July 2024) and various conditions of consent in Annexure A will ensure that the proposed earthworks do not give rise to any adverse environmental impacts.

9. Clause 6.4 of CLEP requires that consent must not be grated unless the consent authority is satisfied that essential services including water, electricity, sewage disposal, stormwater drainage and suitable vehicle access will be viable when required. The site is currently serviced and relevant civil plans have been submitted which demonstrate appropriate servicing arrangements. Further Sydney Water has advised that it does not object to the DA and has provided recommended conditions which have been included in Annexure A. The site drains to the rear via an existing drainage easement. Appropriate vehicular access is also shown on the plans supported by a Traffic and Parking Assessment, prepared by Stanbury traffic Planning (dated 4 July 024). Accordingly, I am satisfied that essential services are available to the land in accordance with the requirements of cl 6.4 of CLEP.

10. Development consent must not be granted unless the consent authority is satisfied of the matters outlined at cl 6.7(2) of CLEP in respect of stormwater management. I am satisfied that the submitted stormwater management plans (Telford Civil dated 31 July 2024), civil engineering plans (Telford Civil dated 30 July 2024), OSD Stormwater Concept Plan Submission – Short Form (Telford Consulting dated 11 July 2024) and various conditions of consent in Annexure A will ensure that the proposed stormwater design will not give rise to any adverse environmental impacts and will comply with the relevant provisions.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

1. Prior to the granting of consent consideration is required to given to whether a subject site is contaminated under s 4.6 of RH SEPP. Further s. 4.6(2) requires that where there is a proposed change of use, the consent authority must consider a preliminary site investigation report (and detailed site investigation if required). The parties agree that the site has a long history of residential use and therefore contamination is unlikely. Notwithstanding, the proposal includes a change of use from residential to a centre based child care facility. Accordingly, a detailed site investigation has been prepared for the site by Geotechnical Consultants Australia (21 February 2023) which confirms that the potential for contamination is low and that subject to the stated recommendations the site is suitable for the proposed childcare use. These recommendations have been included in the conditions of consent in Annexure A. Accordingly, I am satisfied that the requirements of the RH SEPP have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

1. The site is located within the Sydney Harbour Catchment in accordance with BC SEPP. Chapter 6 of the BC SEPP requires consideration of the impacts of development on land location within the Sydney Harbour Catchment, which is a ‘regulated catchment’. Part 6.2 precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to: water quality and quantity; aquatic ecology, flooding, recreation and public access and total catchment management.

2. I am satisfied on the basis of the agreement of the parties that the stormwater plans for the proposal ensure that the effect on the quality of water entering a natural waterbody will be neutral or beneficial, and in all likelihood, beneficial; and the impact on water flow in a natural waterbody will be minimised (s 6.6(2)). The proposal keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct, indirect or cumulative adverse impact on aquatic reserves; minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and minimises any adverse impact on wetlands (s 6.7). The proposal is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8); the proposal does not affect public access to and from natural waterbodies (s 6.9); the proposal is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10); and the proposal is not located on land within 100m of a natural waterbody in a regulated catchment (s 6.11).

State Environmental Planning Policy (Transport and Infrastructure) 2021(TI SEPP)

1. Section 2.48 of TI SEPP applies as the amended DA is within 5m of an overhead electricity power line. The relevant authority, Endeavour Energy, have been consulted and raised no objection to the DA.

2. Chapter 3 Educational establishments and child care facilities of TI SEPP applies to the proposed development. The parties agree and I accept that the amended proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 of TI SEPP. Based on the Statement of Environmental Effects prepared by Think Planners dated 8 March 2023 and agreed submissions from the parties, I have considered the provisions of ss 3.22, 3.23, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

CONCLUSION

9. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

10. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

11. The Court notes that the Respondent has approved, as the relevant consent authority, under s 38(1) of the EPA Reg to the Applicant amending DA2023/0123 to rely upon the following amended plans and documents:

Drawing No and Revision		Title	Prepared by		Date
Architectural Plans
1	Drawing No. A000 Issue E	Cover Page	Janssen Designs		15 August 2024
	Drawing No. A001 Issue E	Calculations & LEP Controls			15 August 2024
	Drawing No. A002 Issue E	Site Context Plan			15 August 2024
	Drawing No. A003 Issue E	Demolition Plan			15 August 2024
	Drawing No. A004 Issue E	Site Analysis Plan			15 August 2024
	Drawing No. A005 Issue E	Basement Floor Plan			15 August 2024
	Drawing No. A006 Issue E	Ground Floor Plan			15 August 2024
	Drawing No. A007 Issue E	First Floor Plan			15 August 2024
	Drawing No. A008 Issue E	Roof Plan			15 August 2024
	Drawing No. A009 Issue E	Elevations			15 August 2024
	Drawing No. A010 Issue E	Elevation + Section			15 August 2024
	Drawing No. A013 Issue E	Covered Outdoor Area Diagrams & Outdoor Area Calculations			15 August 2024
	Drawing No. A014 Issue E	Cut and Fill Diagram			15 August 2024
	Drawing No. A015 Issue E	Shadow Diagrams			15 August 2024
	Drawing No. A016 Issue E	Emergency Evacuation Plan - Ground Floor			15 August 2024
	Drawing No. A017 Issue E	Emergency Evacuation Plan - First Floor			15 August 2024
	Drawing No. A018 Issue E	Kitchen Details			15 August 2024
	Drawing No. A019 Issue E	Colour and Finishes Schedule			15 August 2024
Landscape Plans
2	Drawing No. DA-L101 Revision C	Landscape + Play Item Layout Plan: Ground Floor	Canvas Landscape Architects		15 August 2024
	Drawing No. DA-L102 Revision C	Landscape + Play Item Layout Plan: Level 01			15 August 2024
	Drawing No. DA-L103 Revision C	Landscape Typical Details, Proposed Plant Schedule & Maintenance Program			15 August 2024
Stormwater Management Plans
3	Drawing No. 000 Issue C	Cover Sheet Plan	Telford Civil		31 July 2024
	Drawing No. 101 Issue C	Stormwater Layout Plan Basement Level Sheet 1 of 2			31 July 2024
	Drawing No. 102 Issue C	Stormwater Layout Plan Basement Level Sheet 2 of 2			31 July 2024
	Drawing No. 103 Issue C	Stormwater Layout Plan Sheet 1 of 2			31 July 2024
	Drawing No. 104 Issue C	Stormwater Layout Plan Sheet 2 of 2			31 July 2024
	Drawing No. 105 Issue C	Stormwater Layout Plan Sheet 1 of 2			31 July 2024
	Drawing No. 106 Issue C	Catchment Plan & Miscellaneous Details			31 July 2024
Public Domain Works Civil Engineering Plans
4	Drawing No. C000 Issue B	General Notes, Locality Plan & Drawing Schedule	Telford Civil		30 July 2024
	Drawing No. C101 Issue B	Civil Works Layout Plan			30 July 2024
	Drawing No. C201 Issue B	Driveway Profile - Longitudinal Sections			30 July 2024
	Drawing No. C301 Issue B	Construction Notes and Details Sheet			30 July 2024
Reports / documents
5	Stormwater and On Site Detention Drawing Submission Checklist			Telford Civil	11 July 2024
6	Updated Parking & Traffic Impact Assessment			Stanbury Traffic Planning	4 July 2024
7	Noise Impact Assessment			Acoustic Logic	28 June 2024
8	Addendum to Tree Inspection Report			Treehaven Environscapes	19 July 2024
9	Operational Plan of Management			Janssen Designs	16 August 2024
10	Service Protection Report			Brian O’Mara & Partners	9 August 2024

Orders

12. The orders of the Court are:

1. (1)   The Applicant is granted leave to file the Amended Development Application referred to in paragraph [11] above with the Court.

2. (2) The Applicant is to pay the Respondent’s costs “thrown away” as a result of the Amended Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in the sum of $1,200, to be paid within 28 days of judgment being delivered.

3. (3)   The Appeal is upheld.

4. (4)   Development Application No. DA2023/0123, for the demolition of existing structures, removal of two 2 trees, construction of a 56 place centre based child care facility with associated landscaping, and stormwater drainage works on land legally described as Lot 11 in Deposited Plan 1052777 and known as 63 McArthur Street, Guildford, NSW, 2161, is determined by the grant of development consent subject to the conditions in Annexure A.

Helena Miller

Acting Commissioner of the Court 

Annexure A

**********

Decision last updated: 05 September 2024