Archian Pty Ltd v City of Parramatta Council

[2024] NSWLEC 1432

Land and Environment Court

New South Wales

Medium Neutral Citation:

Archian Pty Ltd v City of Parramatta Council [2024] NSWLEC 1432

Hearing dates:

10 April 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application 416/2022 for tree removal and construction of an 80 place centre-based child care facility with basement carparking at 52 Essex Street, Epping legally described as Lot 2 in DP 305839 subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – child care centre – contentions resolved - consent order hearing – objection by neighbours – traffic impact - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Education and Care Services National Regulations, reg 25

Hornsby Local Environment Plan 2013, Sch 5, Pts 1, 2, cll 4.3, 4.4, 5.10, 6.1, 6.2

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 3.23

Cases Cited:

Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99, 144 LGERA 408

Texts Cited:

Childcare Planning Guideline 2021

Hornsby Development Control Plan 2013

National Construction Code 2022

Category:

Principal judgment

Parties:

Archian Pty Ltd ABN 13 661 674 719 (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
N Hammond (Applicant)
C Campbell (Solicitor)(Respondent)

Solicitors:
Auyeung Hencent and Day Lawyers (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2023/96466

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 refusal of Development Application No 416/2022 for tree removal and construction of a single storey, eighty (80) place childcare centre with basement carparking (the Proposed Development) at 52 Essex Street, Epping legally described as Lot 2 in DP 305839 (the Site) highlighted in blue in the image reproduced below from the Amended Statement of Facts and Contentions (Ex 2).

2. The Council is subject to the control and direction of the Local Planning Panel (the Panel) in its conduct of the proceedings relating to the Proposed Development. Section 8.15(4) of the EPA Act provides as follows:

If the determination or decision appealed against under this Division was made by a Sydney district or regional planning panel or a local planning panel, the council for the area concerned is to be the respondent to the appeal but is subject to the control and direction of the panel in connection with the conduct of the appeal. The council is to give notice of the appeal to the panel.

3. The Notice of Determination dated 8 November 2022 (Ex A, Tab 24) advises that the Local Planning Panel determined the Development Application No 416/2022 on 18 October 2022 by way of refusal for the reasons set out below at [7]. In December 2023, the Court granted leave to the Applicant to rely on amended material. That material has resolved all of Council’s contentions as set out in the Amended Statement of Facts and Contentions (Ex 2) and the parties have agreed on conditions of consent (filed 22 April 2024, Ex 6).

4. The Respondent advises the Court that the Panel has directed that Council resolve the proceedings by way of a consent orders hearing. The Applicant provided written submissions titled “Consent Orders Hearing” and includes the following information:

“In March 2024, the Panel reviewed the Proposed Development incorporating the amendments of December 2023 and determined that the proceedings be resolved by way of a consent orders hearing, subject to the following:

(1)   Architectural plans to be amended to ensure that the design is sympathetic to the Heritage Conservation Area (see condition 18);

(2)   Condition 95 (application for any new, reconstructed or extended driveway) to include specific requirements for signage and other treatments to ensure pedestrian safety;

(3) Amendment of the Plan of Management referred to in condition 117 to include specific measure to manage traffic flows during peak times or any traffic mitigation recommended by Council’s traffic expert.”

5. On 3 April 2024 the Respondent filed an Amended Statement of Facts and Contentions (ASOFAC) (Ex 2) where the contentions were set out as follows:

1. Contention 1 titled Site Compatibility

1. Contention resolved by amended application

2. Contention 2 titled Heritage

1. Contention resolved by amended application

3. Contention 3 titled Bulk, Scale and Design

1. Contention resolved by amended application and condition.

1. Particulars (b)-(i) resolved by way of amended plans. Particular (j) resolved by condition

4. Traffic Impacts previously Contention 4 struck out in full

5. Contention 5 titled Inadequate Information

1. Resolved by amended application

2. Resolved by imposition of following condition.

3. “Prior to the issue of a Construction Certificate a Crime Prevention through Environmental Design (CPTED) assessment must be prepared and submitted to the satisfaction of the PCA.

4. Reason: To ensure Crime Prevention”

6. Contention 6 titled Public Interest

1. Resolved by amended application

6. Practice Note – Class 1 Development Appeals which commenced on 3 April 2018 provides as follows in relation to consent orders:

“Application for final orders by consent of parties

98. When there is agreement prior to the commencement of a hearing of a development appeal involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval.

99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.”

7. The actions of the respondent consent authority are set out in the Statement of Facts and Contentions filed 15 June 2023. I reproduce paras 39 to 41 below as follows:

“39. A report to the Parramatta Local Planning Panel recommending approval of the development application was prepared by the Respondent’s Development Assessment Officer and considered by the Parramatta Local Planning Panel at the meeting held on 18 October 2022. The Parramatta Local Planning Panel resolved to refuse the development application against the recommendation of approval for the following reasons:

1. The Panel is not satisfied the matter of contamination has been fully assessed in accordance with SEPP (Resilience and Hazards) 2021 and the Panel believes that the requirements for remediation of the site are not sufficiently clear as further investigation is still required.

2. The Panel notes the existing strong and generally consistent character of the Heritage Conservation Area. The Panel finds that the large contemporary domestic design is incompatible with the Hornsby Development Control Plan 2013, Heritage 9.3.13 Essex Street (Epping) Heritage Conservation Area. The front facade is twice the width of other houses in the vicinity, with very basic detail, uncharacteristic low-pitched roofs and minimal eaves overhangs. Aluminium framed window and door frames are unsympathetic to the heritage context. The street frontage is dominated by access ramps, pathways and the double driveway to the basement carpark, with sparse landscape.

3. The representations made to the Panel regarding the current traffic situation in the street, (that Essex Street is being presently used as an alternative to main streets in the Epping area) may present unsatisfactory access to the site and the Panel requires further assessment dealing with this point.

40. On 8 November 2022, the Respondent issued a Notice of Determination refusing the development application in line with the Parramatta Local Planning Panels reasons for refusal.

41. On 24 March 2023, the Applicant filed Application Class 1 appealing the Respondent’s refusal of the development application and commencing the subject proceedings.”

8. The Minutes of the Panel’s Public Meeting of 17 November 2022 are included in the Respondent’s Bundle of Documents at Tab 15 (Ex 1).

9. The Council has notified the objectors in accordance with the requirements of the Court’s Practice Note and some objectors presented evidence of their concerns when the hearing commenced on site and provided written submissions, photographs and digital media (Ex 3). The concerns of the objectors relate primarily to the Essex Street Heritage Conservation Area, traffic and parking, remediation of the Site and stormwater.

10. After the conclusion of the hearing, one of the objectors who gave evidence at the hearing on site, delivered directly to the Court a letter dated 19 April 2024 confirming his key objection to the increased potential for motor vehicle accidents caused by a significant increase in cars visiting the Site and surrounding roads during morning and afternoon peak hours Monday to Friday and noting that “the probability for accidents is further complicated by the proposed centre’s proximity to the intersection of Essex St and Epping Rd and speed of cars crossing Epping Rd while travelling south down Essex St.” This objector seeks to bring to the Court’s attention to a “head-on accident that occurred at 8.50 am on 17 April 2024 at the corner of Essex St and Brigg Rd” and encloses a photograph of the accident as “further proof of the inherent risk to public safety, including very young children, that will be caused by adding 162 car movements each day to a narrow suburban road that is one of the main access roads into and out of North Epping.” I have marked the letter Ex 7. I have also searched in Google Maps to locate the intersection referred to by the objector and reproduce at Fig 2 an image from Google Maps identifying the location of the Site in red and I note the location of Brigg Road as labelled.

Fig 2: extract from Google maps

11. Neither party took up the opportunity I offered to make submissions in response to the letter and I have dealt with the matter on the evidence before the Court.

12. The expert traffic engineers, Mr Tom Steal for the Applicant and Mr Ken Hollyoak for the Respondent, prepared a Joint Expert Report (JER) filed 9 April 2024 (Ex 5) “on car parking and pedestrian matters directed to be filed by the Land and Environment Court of New South Wales” and

“addresses consideration of the following matters which were requested by the Planning panel:

Amendment of condition 95 (application for any new, reconstructed or extended driveway) to include specific requirements for signage and other treatments (recommended by Council’s traffic expert) to ensure pedestrian safety.

Amendment of the Plan of Management referred to in condition 117 to include specific measures to manage traffic flow during peak times or any traffic mitigation recommended by Council’s traffic expert.” (JER, p 2)

13. The experts also gave oral evidence before the Court responding to the concerns raised by the neighbouring residents objecting to the Proposed Development.

14. One of the concerns raised by the objectors was the fact that there is an outstanding order affecting the Site in relation to the planting of trees (tree planting order). At the hearing, the Court ordered that the parties file written submissions as to the relevance, if any, of tree planting orders previously made by the Court on this Class 1 Appeal. The parties rely on the submissions made by the Council at the hearing. That is, orders made by this Court in previous proceedings in respect of unauthorised tree removal and requiring the planting of trees, are not relevant to these Class 1 proceedings. The Court made clear in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99, 144 LGERA 408 at [19] to [35] that whether the present owner/operator has in the past acted or used the land unlawfully is not relevant to determining whether a consent should be granted.

15. Further, the Court in exercising its jurisdiction in these Class 1 proceedings does not have power to enforce orders made by the Court in previous proceedings, nor require compliance with those orders by requiring tree planting in accordance with those orders.

16. I will come back to the expert evidence at [38].

17. The parties filed agreed Draft/Proposed Conditions of Consent on 22 April 2024 (Ex 6) which include the requirement to provide notice to the neighbouring residents when remediation works are being undertaken on the Site at Contention 1 below at [53]. This is in response to concerns raised by objectors seeking to be aware of when remediation works were to be undertaken.

18. Having considered all the evidence, both expert evidence and that of the objectors, I conclude that consent be granted to the Proposed Development because I am satisfied that the Site is suitable for a child care centre. I give my reasons below as I address the contentions raised by the Respondent in the Statement of Facts and Contentions.

19. I will start with traffic impacts dealt with in Contention 4 of the SOFAC and will then address my satisfaction of the jurisdictional prerequisites.

20. The parties submit this contention is resolved but proves to be the most contentious in the context of the submissions from the objectors and relates to traffic impacts which was Contention 4 in the SOFAC but was struck out in full in the ASOFAC, or to put it another way, the Respondent no longer makes this contention.

21. The evidence from the resident objectors includes the accident detailed above at [10] (Ex 7) and the written submissions at Ex 1, Tab 25 and at Ex 3.

22. The parties rely on the evidence of expert traffic engineers in the JER where the following documents had been reviewed by the experts as part of the JER:

1. Statement of Facts and Contentions filed 15 June 2023 (SOFAC) not tendered as evidence by the Respondent;

2. Filed Architectural Plans Issue C dated 26 September 2023 (Ex C, Tab 1)

3. Traffic and Parking Impact Assessment report by McLaren Traffic Engineering dated 31 October 2023 (Ex C, Tab 5).

23. The Experts considered two matters, Matter 1 – Driveway signage and/or treatments regarding draft Condition 95 and Matter 2 – Plan of Management regarding draft Condition 117.

24. In relation to Condition 95, now Condition 97 in the Proposed/Draft Conditions of Consent (Conditions) (Ex 6), the experts agree as to matters regarding the design and markings of the pedestrian path within the carpark and relevantly that “the pedestrian sight triangle should be provided as per the architectural drawings” (JER, para 2.1.1.1.1) and that “provision of car park occupancy signage to indicate to parents whether there are vacant spaces available in the car park should be provided” (JER, para 2.1.1.1.5). Parking is also provided for in Condition 34 of the Conditions as follows:

“34 Parking spaces are to be provided in accordance with the approved plans and with AS 2890.1:2004, AS 2890.2:2018 and AS 2890.6:2022. A total of 20 parking spaces are to be provided and allocated as follows:

10 parking spaces for staff;

10 parking spaces for visitors or drop-off/pick-up including one (1) accessible parking space;

The Drop Off parking space in front of the space marked ‘Staff 1’ is to be labelled “Small Car Only”;

The pedestrian path within the carparking area is to be a solid colour not a ‘zebra style’ crosssing;

Four bollards are to be installed approximately as identified in red below.

Note that the Staff parking spaces as well as the accessible parking space and shared space are to be elongated to 5.4m and linemarked in accordance with Figure 2.2 of AS2890.1:2004 and AS2890.6:2009. Tandem car spaces are to be allocated to staff parking. Details are to be illustrated on plans submitted with the construction certificate application.

Reason:   To comply with Council’s parking requirements and Australian Standards.”

25. There is no reference to the car park occupancy signage suggested by the traffic experts because the Heritage officer did not agree with this suggestion and no signage is proposed as part of the Proposed Development (SEE, p 15).

26. The pedestrian sight triangle is visible in Drawing DA11 Issue C which is listed as a consent drawing in the Conditions.

27. In relation to Condition 117 referred to above, now Condition 101 in the Conditions, the experts agree that the POM should indicate that the stacked staff parking (Staff 1 and Staff 2) should be occupied prior to and after pick-up drop-off hours (JER, para 2.2.1.1)

28. The JER does not address the concerns of the objectors, generally captured by Contention 4 of the SOFAC which was struck out in the ASOFAC titled “Traffic Impacts” and read as follows:

Traffic Impacts

4.   The development application should be refused because it has not accurately reported the traffic impacts on the surrounding road network arising from the development.

Particulars

(a)   The relevant sections of the Child Care Planning Guideline are:

(i)   Objectives and Control C31, C33, C36 and C38 – Traffic, parking and pedestrian circulation.

(b)   The traffic counts on which the survey was based were undertaken on 14^th December 2021 when traffic conditions could not be described as being typical. The traffic counts should be undertaken to reflect typical existing conditions and the traffic analysis be subject to additional traffic modelling.”

What do the controls particularised at Contention 4(a) say? (Ex 1, Tab 4)

29. Section 3.23 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires the consent authority to take into consideration applicable provisions of the Child Care Planning Guidelines.

30. Council’s Bundle of Documents filed 27 March 2024 (Ex 1) at Tab 4 includes a copy of the Child Care Planning Guideline 1 October 2021. Section 3.8 of the Childcare Planning Guidelines is titled “Traffic, parking and pedestrian circulation” and includes controls C30 through to C37.

31. The Statement of Environmental Effects (SEE) dated November 2023 filed with the amended application (Ex C, Tab 14) addresses compliance with section 3.8 of the Childcare Planning Guideline from p 65. I note that the numbering of the controls in the compliance table of the SEE does not exactly match the numbering in the Child Care Planning Guidelines in Ex 1, Tab 4 as it addresses controls C30 through to C38, so I have looked at the text and substance of each control rather than rely on numbering in the SEE.

32. It is relevant that the SEE refers to the Traffic and Parking Impact Assessment (Traffic Impact Assessment) report by McLaren Traffic Engineering dated 31 October 2023 (Ex C, Tab 5).

33. I make observations in relation to the controls listed in the former Contention 4 of the SOFAC, in accordance with the Child Care Planning Guideline at Ex 1, Tab 4, as follows:

1. C31 refers to commercial or industrial zones whereas the Site is located in the R2 Low Density Residential zone;

2. C33 refers to vehicular access where the Site fronts a classified road or roads which carry freight traffic or transport dangerous goods or hazardous materials. Essex Street is not a classified road and is not known to carry freight traffic or vehicular traffic which transports dangerous goods or hazardous materials. The SEE at p 68 refers to this control as C34 and provides that it is “Not applicable”;

1. C36 refers to mixed use developments whereas the Proposed Development seeks consent for a single use. The SEE at p 70, refers to this control as C37 and provides that it is “Not applicable”; and

2. C38 does not appear in the version of the Childcare Planning Guideline in Ex 1, Tab 4.

34. The evidence before me leads me to conclude that the Proposed Development complies with the Childcare Planning Guidelines.

What does the Traffic Impact Assessment say in order to address particular 4(b)?

35. Council’s Bundle of Documents filed 27 March 2024 (Ex 1) at Tab 22 includes a memorandum from Council’s Traffic and Transport Investigation Engineer dated 17 August 2022. That memorandum relates to “an 80 place single-storey centre-based child care facility with a basement carpark containing 20 parking spaces” and concludes as follows:

“Based on the analysis and information submitted by the applicant, the proposed development is not expected to have a significant traffic impact on the surrounding road network.”

36. The Applicant relies on the Traffic Impact Assessment (Ex C, Tab 5), the contents of which are not contested by Council’s expert traffic engineer. The Traffic Impact Assessment undertook an assessment to compare the existing intersection operations to the future scenario under the increased traffic load resulting in “negligible impact on the existing road network as a result of the proposed development” (p 13) and concludes at p 14 that the Proposed Development is fully supportable in terms of its traffic and parking impacts with the following outcomes of the assessment being relevant to note:

“The traffic generation of the proposed development has been estimated to be some 64 trips in the AM peak period (32 in, 32 out) and 56 trips in the PM peak period (28 in, 28 out). The impacts of the traffic generation have been modelled using SIDRA INTERSECTION 9.1, indicating that there will be no detrimental impact to the performance of the intersections as a result of the generated traffic.”

37. The amended development application reviewed by the Panel resolving to direct the Respondent to resolve the matter by way of a consent orders hearing includes the Traffic Impact Assessment. I accept this as a fact that apart from the matters dealt with in the JER, the Panel was satisfied that the Traffic Impact Assessment adequately dealt with the representations made to the Panel regarding the traffic situation detailed in its third reason for refusal detailed above at [7].

38. The Court had the benefit of oral expert opinion evidence during the hearing addressing the matters raised by the objectors on site orally and in writing (Ex 3). Mr Hollyoak and Mr Steal were shown the 7 x A3 laminated documents, numbered 1 to 7 provided by one the objectors to accompany their written submission dated 10 April 2024 in response to the “Amended Traffic and Parking Impact Assessment Report which was submitted to Parramatta Council on 31 October 2023” (part of Ex 3). The laminated documents were numbered during the hearing as follows:

1. Artist’s impression of the Proposed Development showing double driveway adjacent to 50 Essex Street, Epping;

2. Undated Photograph of traffic queuing on Essex Street, Epping;

3. Underground Car Park – Drawing D11 Rev B Basement Floor Plan

4. Annotated extract of AS/NZS 2890.1:2004, s 4.10 regarding dimensions of drop off carpark;

5. Calculations of Dimensions of Each Parents’ Drop-Off Car Spot;

6. Annotated image of 2023 Ford Ranger WILDTRAK

7. Annotated image of 2023 Ford Ranger WILDTRAK

39. The two experts were asked questions and I set out their evidence below.

40. Section 4.10 of AS/NZS 2890.1:2004 is titled Special Loading/unloading Parking Spaces and in relation to the context of a child care centre, relates to the loading and unloading of passengers in accordance with their experience that parents do not take prams and strollers out of the vehicle.

41. The experts confirmed that Class 3 or Class 3A vehicles for a child care centre are correct and they are satisfied that the Proposed Development complies with the parking controls in the Hornsby Development Control Plan 2013 (the DCP).

42. Regarding the car parking concerns, Mr Hollyoak adds that parking is provided by the Proposed Development as recommended by the DCP and clarified that the 1 space per 4 children includes staff in the DCP.

43. The Ford Ranger images were noted by the experts who say that this issue is not specifically relevant to this Site and they accept the consequence of impact of this style of vehicle in general terms.

44. Mr Steal responded to the criticism that data was collected on one day by advising that two sets of traffic counts were undertaken and that the second set reflected broadly the same result as the first traffic count. The following reports were referred to:

1. Traffic count on Wednesday 26 July 2023 reported in the Traffic Impact Assessment p 10 (Ex C, Tab 5); and

2. Traffic Impact Assessment dated 11 May 2022, (Ex A, Tab 12) reporting on data of traffic count on Tuesday 14 December 2021.

45. Mr Hollyoak’s evidence is that he is comfortable with the 2 days, 14 December 2021 and 26 July 2023, being two sets of traffic counts and that the information was not dissimilar.

46. Mr Steal addressed the queuing calculations undertaken and said that the average wait time and maximum accumulation was 8 vehicles where 10 parking spaces is provided by the Proposed Development.

47. In relation to the relevance of the 2018 Epping Centre Traffic Survey mentioned by the objector, the experts explain that the purpose of that survey was for residential development and road grid lock and was based on counts undertaken a year or two earlier which is now about eight years ago whereas this Proposed Development relies on contemporary traffic counts undertaken in 2023.

48. The experts agree that there are issues at intersections in Epping, however, the Proposed Development could generate 70 trips, 30 cars in an hour, which the experts agree is a very small number in the Epping Town Centre context and they conclude that there will be no real impact. The expert witnesses were then excused.

49. I accept the evidence of the experts and find that the traffic impact of the Proposed Development does not warrant the refusal of consent.

50. The written submission referred to above at [38] also includes a concern regarding stormwater management. The Applicant relies on the Site and Roof Drainage Plan Drawing 21MB8863/D01 to D04 Issue C which are supported by Council’s Development Engineer (Ex 1, Tab 19) subject to conditions and which I accept is acceptable stormwater management of the Proposed Development and I note that the Site does not benefit from any current stormwater management on the Site.

51. I now turn to other matters requiring consideration or satisfaction of jurisdictional prerequisites.

52. The Proposed Development is supported by a Statement of Compliance pursuant to the National Construction Code 2022 Vol 1 Section J Part J4 (Ex C, Tab 9) to demonstrate compliance for the proposed child care centre.

53. The first contention raised by the Respondent which is resolved is regarding contamination and arises from Regulation 25 of Education and Care Services National Regulations which relevantly provides:

“25 Additional information about proposed education and care service premises (1) Subject to subregulation (2) and regulation 25A, in addition to the information referred to in regulation 24, an application for a service approval for a centre-based service must include the following information about the proposed education and care service premises— (a) the location and street address of the proposed education and care service premises; . . . (iii) a statement made by the applicant that states that, to the best of the applicant’s knowledge the site history does not indicate that the site is likely to be contaminated in a way that poses an unacceptable risk to the health of children; . . .”

54. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazard) 2021 (Resilience and Hazards SEPP) relevantly provides:

4.6 Contamination and remediation to be considered in determining development application

(1) A consent authority must not consent to the carrying out of any development on land unless—

(a) it has considered whether the land is contaminated, and

(b) 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

(c) 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.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (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.

(3) The applicant for development consent must carry out the investigation required by subsection (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4) The land concerned is—

(a) land that is within an investigation area,

(b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land—

(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).”

55. The Stage 2 Detailed Site Investigation report prepared by Australian Safer Environment & Technology Pty Ltd dated 15 August 2022 (Ex A, Tab 9) identified that the Site contained asbestos, lead and copper contaminated soils, and concluded on p 11 that remediation of the Site is required to render the Site suitable for the proposed child care land use. The Applicant relies on the following documents to satisfy the jurisdictional prerequisite:

1. Remediation Action Plan, prepared by Australian Safer Environment & Technology Pty Ltd dated 3 November 2023 (Ex C, Tab 10);

2. Remediation Action Plan comments register, prepared by Australian Safer Environment & Technology Pty Ltd dated 1 November 2023 (Ex C, Tab 11);

3. Site Audit Report, prepared by Ramboll Australia Pty Ltd dated 6 November 2023 (Ex C, Tab 12)

56. I conclude that the evidence supports that in relation to contamination of the Site, the land can be made suitable for the proposed child care land use and the parties also agreed to include a condition of consent to the effect that notice of remediation works must be provided to neighbours.

57. The second contention in the ASOFAC titled Heritage, which the Respondent states is resolved by the amended application, remained a concern for the objectors.

58. The Site is located within the Essex Street Conservation Area under Schedule 5, Part 2 of the Hornsby Local Environment Plan 2013 (HLEP) and the Site is located within the vicinity of two (2) Heritage Items listed by Schedule 5, Part 1 of the HLEP being:

1. Wurundjer (Item No. 800), No. 42 Essex Street, Epping and

2. Asheldom (Item No. 378), No. 47 Essex Street, Epping.

59. Consent is required for the erection of a building on land that is within a heritage conservation area pursuant to cl 5.10(2)(e) of the HLEP. I reproduce cl 5.10(4) and (5) of the HLEP below as follows:

(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage assessment The consent authority may, before granting consent to any development—

(a)  on land on which a heritage item is located, or

(b)  on land that is within a heritage conservation area, or

(c)  on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

60. The objector residents expressed their concern regarding the impact of the Proposed Development and suggest that should consent be granted, the Essex Street Heritage Conservation Area notation should be reviewed and deleted by the Respondent Council. The Respondent took this suggestion on notice.

61. The Applicant relies on a Heritage Impact Statement prepared by Weir Philips dated November 2023 (Ex C, Tab 13) addressing the architectural amendment to separate the single hip roof into two separate pitched roof forms.

62. Council’s Bundle of Documents (Ex 1) at Tab 27 includes the Senior Heritage Specialist’s comments and conclusions which are as follows:

“The following amendments are suitable and acceptable in heritage perspectives.

1. The front elevation has been modified to give the impression of two building. This reduces the apparent bulk of the scheme particularly in relation to the other dwellings in the area.

2. The verandahs are now separate so as to read as two separate dwellings.

3. The lift has been relocated so that access to it and the front entry is more direct.

4. The side elevations have been adjusted to show less bulk.”

63. In addition, the parties have agreed to the following Condition 19 as follows:

“19. Prior to construction certificate revised architectural plans are to be submitted to council’s heritage department that comprise of the following changes:

(a) External window and door frames to be changed from aluminium to timber.

(b) The roof pitch be increased to match or very closely align with that of the adjoining dwelling houses at 50 and 54 Essex Street.

(c) Increase the width of the eaves to match or very closely align with that of the adjoining dwelling houses at 50 and 54 Essex Street.

(d) Basement carpark door to be of timber appearance and appropriately finished to be in keeping with the heritage conservation area.

Reason:   To enable a more sympathetic design to the Heritage Conservation Area.”

64. For these reasons I am satisfied that the effect of the Proposed Development on the heritage significance of the Epping Street Conservation Area has been considered to be acceptable in accordance with cl 5.10 of the HLEP.

65. The Site is subject to a maximum height of building (HOB) development standard of 8.5m pursuant to cl 4.3 of the HLEP and the HOB Map HOB-011). The Elevation Drawing DA21 Issue C (Ex C, Tab 1) and the SEE at p 14 show the Proposed Development to comply with the HOB development standard noting the slope of the Site from the north-western corner towards the south-eastern corner of 5.3m (ASOFAC, p 2).

66. There is no nominated Floor Space Ratio (FSR) development standard for the Site pursuant to cl 4.4 of the HLEP and the Floor Space Ratio Map FSR-011 (SEE, p 15).

67. In relation to cl 6.1 of the help, there is no Acid Sulfate Soils Map for the Site (SEE, p 15).

68. Development consent is sought for earthworks pursuant to cl 6.2(2) of the HLEP and as such, before granting development for earthworks, the consent authority must consider the matters listed in cl 6.2(3) of the HLEP.

69. The ASOFAC provides that Contention 3, which included particulars regarding the scale and extent of earthworks required for the construction of the basement carpark, is resolved by the amended plans and agreed consent conditions and I find that this satisfies cl 6.2(3) of the HLEP.

70. For all these reasons, I conclude that development consent may be granted for the Proposed Development subject to conditions of consent.

Orders:

71. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application 416/2022 for tree removal and construction of an 80 place centre-based child care facility with basement carparking at 52 Essex Street, Epping legally described as Lot 2 in DP 305839 subject to the conditions of consent in Annexure A.

E Espinosa

Commissioner of the Court

96466.23 Annexure A

96466.23 Architectural Plans

96466.23 Plan of Management

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Decision last updated: 26 July 2024