Appin Holdings Pty Ltd v Wollondilly Shire Council

[2024] NSWLEC 1678

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Appin Holdings Pty Ltd v Wollondilly Shire Council [2024] NSWLEC 1678

Hearing dates:

Conciliation conference on 21 October 2024

Date of orders:

25 October 2024

Decision date:

25 October 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders:

(1) The Applicant is granted leave to file the Amended Development Application referred to in [8].

(2) The Appeal is upheld.

(3) The Applicant is to pay the Respondent’s costs pursuant to s.8.15(3) of the Environmental Planning and Assessment Act NSW 1979 as agreed or as assessed.

(4) Development Application No. DA/2023/1172/1, as amended, for the demolition of existing structures, removal of identified trees, and construction of a part 2 storey part 3 storey 92 place centre-based child care facility over a basement level car park containing 23 car parking spaces, on land legally described as Lot 1 in DP193968 and known as 6 Macquariedale Road, Appin NSW, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Coal Mine Subsidence Compensation Act 2017, ss 21, 22

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

Land and Environment Court Act 1979, s 34

Sydney Water Act 1994, s 78

Environmental Planning and Assessment Regulation 2021 ss 27, 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.9

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

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

Wollondilly Local Environmental Plan 2011, cll 4.3, 7.1, 7.5

Texts Cited:

Child Care Planning Guideline 2021

Category:

Principal judgment

Parties:

Appin Holdings Pty Ltd (Applicant)
Wollondilly Shire Council (Respondent)

Representation:

Counsel:
T To (Applicant)
A Hemmings (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/00055845

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Appin Holdings Pty Ltd seeks development consent for the demolition of existing structures and the construction of a centre-based child care facility at 6 Macquariedale Road, Appin. It lodged a development application with the respondent, Wollondilly Shire Council, on 12 December 2023. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. Following an adjournment of the hearing, 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 21 October 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was provided on the same date. The agreement follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amended development application provides weather protection to a lift waiting area, provides better accessibility by providing stair lifts, and improves the presentation of the side setbacks by reducing the roof area of the upper level and introducing shade structures. The development application, as amended, is for the construction of a part 2-storey, part 3-storey, 92 place centre-based child care facility with a basement level car park containing 23 car parking spaces.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Statement of Jurisdictional Prerequisites that sets out the jurisdictional prerequisites to the exercise of the power to grant consent. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the Statement of Environmental Effects dated 8 December 2023 (SEE) 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.

5. 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 could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon. I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1. The site is zoned E1 Local Centre under the Wollondilly Local Environmental Plan 2011 (WLEP), and development for the purpose of centre-based child care facilities is permissible with consent in the zone.

2. The proposed development complies with the height development standard in cl 4.3 of the WLEP, and there is no floor space ratio development standard that applies to the site.

3. Based on the matters outlined in the Statement of Jurisdictional Prerequisites and the letter by Qalcheck dated 15 October 2024, I am satisfied that the essential services required by cl 7.1 of the WLEP are available or that adequate arrangements have been made to make them available when required.

4. The development application includes earthworks for the provision of the basement level for car parking. Based on the SEE and the letter by Australian Geoenviro dated 16 October 2024, I have considered the matters set out in cl 7.5(3) of the WLEP.

5. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated. In addition, the development application is accompanied by a Stage 1 Preliminary Site Investigation dated 15 August 2023, which contains recommendations that have been incorporated in the agreed conditions of consent.

6. The site is in the Hawkesbury-Nepean Catchment, and therefore Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. Based on the Stormwater Management Report dated 5 September 2024, I am satisfied of the matters in ss 6.6(2) and 6.7(2) of the SEPP B&C. Further, the development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2).

7. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) concerns child care facilities and applies to the proposed development. The proposed development complies with the requirements for unencumbered indoor and outdoor space, and therefore concurrence of the Regulatory Authority is not required by s 3.22. In accordance with s 3.23 and based on the SEE, I have considered the applicable provisions of the Child Care Planning Guideline.

8. The proposed development is within 5m of an exposed overhead electricity power line, as a result of which s 2.48 of the SEPP TI requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Endeavour Energy was notified of the development application and I have considered the content of their response, which is dated 22 December 2023.

9. The site is within a mine subsidence district, and an approval to an earlier iteration of the development application was given pursuant to s 22 of the Coal Mine Subsidence Compensation Act 2017. The conditions of consent require a new approval to be obtained for the development, prior to the construction certificate, so that the requirements of s 21 of the Coal Mine Subsidence Compensation Act 2017 are met.

10. The development application was publicly notified between 11 January 2024 and 8 February 2024, and again following amendments between 7 and 21 August 2024. I have considered the issues raised in the submissions received during those notification periods.

11. The development application was notified to Sydney Water, as required by s 78 of the Sydney Water Act 1994, and I have considered the content of their response dated 27 August 2024.

6. Having reached the state of satisfaction that the decision is one that the Court could have made 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)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.

8. The Court notes that the Respondent has approved, as the relevant consent authority, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA/2023/1172/1 to rely upon the following amended documents (Amended Development Application), as filed with the Court:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No 00 Rev F	Cover Page	Baini Designs	4 October 2024
	Drawing No 01 Rev F	Compliance Table, Location Plan		4 October 2024
	Drawing No 02 Rev F	Site Context Plan		4 October 2024
	Drawing No 03 Rev F	Site Analysis Plan		4 October 2024
	Drawing No 04 Rev F	Shadow Diagrams		4 October 2024
	Drawing No 05 Rev F	Site Plan		4 October 2024
	Drawing No 06 Rev F	Demolition Plan		4 October 2024
	Drawing No 07 Rev F	Basement Floor		4 October 2024
	Drawing No 08 Rev F	Ground Floor		4 October 2024
	Drawing No 09 Rev F	First Floor		4 October 2024
	Drawing No 10 Rev F	Roof Plan		4 October 2024
	Drawing No 11 Rev F	Elevations		4 October 2024
	Drawing No 12 Rev F	Elevations		4 October 2024
	Drawing No 13 Rev F	Sections		4 October 2024
	Drawing No 14 Rev F	Maximum Building Height Plane		4 October 2024
	Drawing No 15 Rev F	Kitchen and Laundry Callouts		4 October 2024
	Drawing No 16 Rev F	Callout Elevations		4 October 2024
	Drawing No 17 Rev F	Typical Nappy Change		4 October 2024
	Drawing No 18 Rev F	Typical Bottle Prep Detail		4 October 2024
	Drawing No 19 Rev F	Typical Craft Bench Detail		4 October 2024
	Drawing No 20 Rev F	Schedule of Finishes		4 October 2024
	Drawing No 21 Rev F	GFA Calc Plan - Ground Floor		4 October 2024
	Drawing No 22 Rev F	GFA Calc Plan - First Floor		4 October 2024
	Drawing No 23 Rev F	Outdoor Play Area Calc - GF		4 October 2024
	Drawing No 24 Rev F	Outdoor Play Area Calc - FF		4 October 2024
	Drawing No 25 Rev F	0-2 + 2-3 Indoor Calc. Plan		4 October 2024
	Drawing No 27 Rev F	3-5 Indoor Calc. Plan		4 October 2024
	Drawing No 28 Rev F	Sight Lines - Ground Floor		4 October 2024
	Drawing No 29 Rev F	Sight Lines - First Floor		4 October 2024
	Drawing No 30 Rev F	Evacuation Plan - Basement Floor		4 October 2024
	Drawing No 31 Rev F	Evacuation Plan - Ground Floor		4 October 2024
	Drawing No 32 Rev F	Evacuation Plan - First Floor		4 October 2024
	Drawing No 33 Rev F	Solar Study Plan - 21 June - 2pm		4 October 2024
	Drawing No 34 Rev F	Solar Study Plan - 21 June - 3pm		4 October 2024
	Drawing No 35 Rev F	Solar Study Plan - 21 June - 4pm		4 October 2024
	Drawing No 36 Rev F	Shading Devices Diagram		4 October 2024
	Drawing No 37 Rev F	Fencing Detail - Ground Floor		4 October 2024
	Drawing No 38 Rev F	Fencing Detail - First Floor		4 October 2024
	Drawing No 39 Rev F	3D Perspectives		4 October 2024
	Drawing No 40 Rev F	Streetscape Elevation		4 October 2024
Landscape Plans
2	Drawing No 01 Revision G	Ground Floor Landscape Concept	Outside In Design Group	16 October 2024
	Drawing No 02 Revision G	First Landscape Concept		16 October 2024
	Drawing No L-03 Revision G	Macquariedale Road Streetscape Elevation A-A		16 October 2024
	Drawing No L-04 Revision G	Koolahs Street Streetscape Elevation B-B		16 October 2024
Stormwater Management Plans
3	Drawing No: D00 Rev G	Cover Sheet, Legend & Drawing Schedule	Amity Engineers	5 September 2024
	Drawing No: D01 Rev G	General Notes		5 September 2024
	Drawing No: D05 Rev G	Sediment & Erosion Control Plans and Details		5 September 2024
	Drawing No: D10 Rev G	Stormwater Drainage Plan - Basement Level		5 September 2024
	Drawing No: D11 Rev G	Stormwater Drainage Plan - Ground Level		5 September 2024
	Drawing No: D20 Rev G	Stormwater Drainage Details Sheet 1		5 September 2024
	Drawing No: D21 Rev G	Stormwater Drainage Details Sheet 2		5 September 2024
	Drawing No: D50 Rev G	Bulk Earthworks Plan		5 September 2024
Reports/Documents
4	Environmental Noise Impact Assessment, Rev F		Day Design Pty Ltd	17 October 2024
5	Letter from Qalchek		Qalchek	15 October 2024
6	Memorandum on Clause 7.5 of the Wollondilly Local Environmental Plan 2011		Australian GeoEnviro	16 October 2024
7	Plan of Management (Version 4)		21 October 2024

9. The Court orders that:

1. The Applicant is granted leave to file the Amended Development Application referred to in [8].

2. The Appeal is upheld.

3. The Applicant is to pay the Respondent’s costs pursuant to s.8.15(3) of the Environmental Planning and Assessment Act NSW 1979 as agreed or as assessed.

4. Development Application No. DA/2023/1172/1, as amended, for the demolition of existing structures, removal of identified trees, and construction of a part 2 storey part 3 storey 92 place centre-based child care facility over a basement level car park containing 23 car parking spaces, on land legally described as Lot 1 in DP193968 and known as 6 Macquariedale Road, Appin NSW, is determined by the grant of development consent subject to the conditions at Annexure A.

J Gray

Commissioner of the Court

Annexure A

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Amendments

08 November 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, amendment is made to drawing references at conditions 30 and 48 of Annexure A.

Decision last updated: 08 November 2024