Araiji v Shoalhaven City Council

[2025] NSWLEC 1433

Land and Environment Court

New South Wales

Medium Neutral Citation:

Araiji v Shoalhaven City Council [2025] NSWLEC 1433

Hearing dates:

Conciliation conference 30 May 2025

Date of orders:

18 June 2025

Decision date:

18 June 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent's costs thrown away pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $9,500 within 28 days of the date of these orders.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA2024/1858 (as amended) for the consolidation of three (3) separate lots into one (1) lot, demolition of the existing structures on site, construction of a 101 place centre based child care facility with at grade car parking and a cafe on land legally described as 9 Nowra Lane, Nowra and 11 Smith Lane, Nowra, subject to the conditions at Annexure A.

Catchwords:

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

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

Education and Care Services National Regulations (2011 SI 653)

Environmental Planning and Assessment Regulation 2021, s 38

Shoalhaven Local Environmental Plan 2014, cll 2.3, 2.7, 4.3, 5.10, 7.11

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.26

Category:

Principal judgment

Parties:

Rene Araiji (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
A Johnson (Solicitor) (Applicant)
A Kliese (Solicitor) (Respondent)

Solicitors:
Miller Prince (Applicant)
Urban Legal (Respondent)

File Number(s):

2024/470165

Publication restriction:

Nil

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 deemed refusal of DA-2024/1858 for the consolidation of lots, demolition of existing structures, removal of garden shrubs, construction of a 101-place centre based childcare facility with at grade parking and a café at ground level (DA) at 9 Nowra Lane and 11 Smith Lane, Nowra, legally known as Lot 10 in Deposited Plan 723555, Lot 6 in Deposited Plan 18472 and Lot 11 in Deposited Plan 723555 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 30 May 2025. I presided over the conciliation conference. The final documentation was filed to the Court on 6 June 2025.

3. The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-2024/1858 in accordance with the documents listed below:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No. DA-00, Revision J	Cover Sheet	Envision Group Pty Ltd	30 April 2025
	Drawing No. DA-01, Revision J	Notes
	Drawing No. DA-02, Revision J	Location Plan
	Drawing No. DA-03, Revision J	Site Analysis Plan
	Drawing No. DA-04, Revision J	Demolition Plan
	Drawing No. DA-05, Revision J	Site Plan
	Drawing No. DA-06, Revision J	Ground Floor Plan
	Drawing No. DA-07, Revision J	Level 01 Floor Plan
	Drawing No. DA-08, Revision J	Level 02 Floor Plan
	Drawing No. DA-09, Revision J	Roof Plan
	Drawing No. DA-10, Revision J	Compliance Data
	Drawing No. DA-11, Revision J	West Elevation
	Drawing No. DA-12, Revision J	East Elevation
	Drawing No. DA-13, Revision J	North & South Elevation
	Drawing No. DA-14, Revision J	Section A & B
	Drawing No. DA-15, Revision J	Section C
	Drawing No. DA-16, Revision J	Driveway Section
	Drawing No. DA-17, Revision J	External Finishes Schedule
	Drawing No. DA-18, Revision J	GFA Calculations Plan
	Drawing No. DA-19, Revision J	Playspace Calculations
	Drawing No. DA-20, Revision J	Shadow Diagrams
	Drawing No. DA-21, Revision J	Shadow Diagrams
	Drawing No. DA-22, Revision J	Ground Floor Evacuation Plan
	Drawing No. DA-23, Revision J	Level 01 Evacuation Plan
	Drawing No. DA-24, Revision J	Level 02 Floor Plan
	Drawing No. DA-25, Revision J	Typical Acc. WC Detail
	Drawing No. DA-26, Revision J	Acoustic Barrier Detail
Civil Engineering Plans
2	Drawing No. C000, Revision C	General notes, Locality Plan & Drawing Schedule	Telford Civil Pty Ltd	27 March 2025
	Drawing No. C101, Revision E	Civil Works Layout Plan
	Drawing No. C201, Revision A	Driveway Profile Longitudinal Sections		7 March 2025
	Drawing No. C301, Revision B	Smith Lane Longitudinal Section		20 March 2025
	Drawing No. C302, Revision A	O’Connell Lane Longitudinal Section		7 March 2025
	Drawing No. C303, Revision A	Nowra Lane Longitudinal Section
	Drawing No. C401, Revision B	Smith Lane Cross Sections		20 March 2025
	Drawing No. C402, Revision A	O’Connell Lane Cross Sections		7 March 2025
	Drawing No. C403, Revision A	Nowra Lane Cross Sections
	Drawing No. C501, Revision A	Typical Cross Sections
	Drawing No. C601, Revision B	Construction Notes and Details Sheet		20 March 2025
Stormwater Engineering Plans
3	Drawing No. 000, Revision C	Cover Sheet Plan	Telford Civil Pty Ltd	27 March 2025
	Drawing No. 101, Revision E	Stormwater Concept Plan Ground Floor
	Drawing No. 102, Revision E	Stormwater Concept Plan Level 1
	Drawing No. 103, Revision E	Stormwater Concept Plan Level 2
	Drawing No. 104, Revision E	Stormwater Concept Plan Roof Level
	Drawing No. 105, Revision D	On-site Detention Details and Calculations
	Drawing No. 106, Revision D	Hydraulic Grade Line Analysis
	Drawing No. 107, Revision C	Sediment and Erosion Control Plan & Details
	Drawing No. 108, Revision C	Miscellaneous Details Sheet
	Drawing No. 109, Revision B	WSUD Catchment Plan & MUSIC Results
Signage Plan
4	Drawing No. 24113CAD009, Rev A	Signage Plan	The Transport Planning Partnership	28 April 2025
Reports
5	Integrated Water Cycle Management Plan		Telford Civil Pty Ltd	27 March 2025
6	Arboricultural Impact Assessment		NSW Tree Services Pty Ltd	27 March 2025
7	Plan of Management POM0824 Rev A		undated
8	Traffic Response to Statement of Facts & Contentions		The Transport Planning Partnership	11 April 2025
9	Structural Letter		Capital Engineering Consultants	10 April 2025
10	Applicant’s Response to Contentions		Undated
11	Revised Statement of Environmental Effects		Think Planners Pty Ltd	15 April 2025
12	Environmental Noise Impact Assessment		Day Design Pty Ltd	1 May 2025
13	Waste Management Plan (REF – 24123)		Dickens Solutions	April 2025
14	Plan of Management for Café (POM 0225)
15	Addendum Letter		Geotechnical Consultants Pty Ltd	6 June 2025
16	Remediation Action Plan		Geotechnical Consultants Australia Pty Ltd	6 June 2025

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. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent under s 4.16 of the EPA Act.

5. 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. 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.

Jurisdictional Prerequisites

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 and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

7. The DA was lodged to the Respondent on 20 September 2024. I am satisfied that owners consent accompanied the DA as provided in the class 1 application. The Respondent notified the DA from 3 October 2024 to 17 October 2024. No submissions were received.

Shoalhaven Local Environmental Plan 2014

8. The subject site is zoned E2 Commercial Centre, where the proposed uses for a centre-based child care facility and food and drinks premises (commercial premises) are permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 demolition permits demolition with consent, as sought by the amended DA.

9. Clause 4.3 height of buildings applies and allows a maximum of 15m. The architectural plans prepared by BDAA (architectural plans) demonstrate that the amended proposal is below 15m, at 11.87m.

10. Clause 5.10 heritage conservation applies as there are heritage items in the vicinity of the site. As detailed in the Statement of Environmental Effects prepared by Think Planners dated 15 April 2025 (SEE), the heritage impacts have been considered, and the proposal does not cause any impacts.

11. Clause 7.11 essential services applies to the site. As detailed in the jurisdictional statement and SEE, all services are currently provided and will continue to be.

State Environmental Planning Policy (Resilience and Hazards) 2021

12. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site in relation to contamination. The amended DA is accompanied by a Preliminary Site Investigation, Addendum Letter and Remediation Action Plan (all prepared by Geotechnical Consultants Australia) in relation to the proposed uses.

13. The information provided demonstrates that the proposed site can be made suitable for the proposed uses. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

14. Chapter 3 Educational establishments and childcare facilities of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the proposed development.

15. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 and 3.26 of SEPP TI as shown on the architectural plans and outlined in the jurisdictional statement. Further, based on the agreed submissions from the parties in the jurisdictional statement and SEE, I have considered the provisions of ss 3.22, 3.23, 3.26, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

Heads of consideration

16. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

17. 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.

18. 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.

19. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

20. The Court orders:

1. The Applicant is to pay the Respondent's costs thrown away pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $9,500 within 28 days of the date of these orders.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA2024/1858 (as amended) for the consolidation of three (3) separate lots into one (1) lot, demolition of the existing structures on site, construction of a 101 place centre based child care facility with at grade car parking and a cafe on land legally described as 9 Nowra Lane, Nowra and 11 Smith Lane, Nowra, subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

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annexure A.308 KB.pdf

Decision last updated: 18 June 2025