Archian Pty Ltd v Ku-ring-gai Council

[2023] NSWLEC 1546

Land and Environment Court

New South Wales

Medium Neutral Citation:

Archian Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1546

Hearing dates:

Conciliation conference 30 August 2023

Date of orders:

21 September 2023

Decision date:

21 September 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(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 agreed sum of $18,000.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application DA0378/21, as amended, for the demolition of existing structures and construction of a centre based childcare facility for 72 children and associated works at 1 and 3 Carbeen Avenue, St Ives (Lot 23 DP 15578 Lot A DP 362222) subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of childcare centre – amended development application – agreement between the parties – orders made

Legislation Cited:

Children (Education and Care Services) Supplementary Provisions Regulation 2012

Education and Care Services National Regulations 2011, regs 107, 108

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

Environmental Planning and Assessment Regulation 2000, cl 49

Ku-ring-gai Local Environmental Plan 2015, cll 2.7, 4.3, 4.4, 6.1, 6.2, 6.3

Land and Environment Court Act 1979, s 34

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

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

Texts Cited:

Department of Planning, Industry and Environment, Child Care Planning Guideline, 2015

Category:

Principal judgment

Parties:

Archian Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

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

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

File Number(s):

2022/272421

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This appeal is bought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant, Archian Pty Ltd. The Applicant appeals the actual refusal of their development application DA/3078/21 by the Respondent, Ku-ring-gai Council. The development application, as amended, seeks consent for demolition of existing structures and construction of a centre based childcare facility for 72 children and associated works at 1 and 3 Carbeen Avenue, St Ives (Lot 23 DP 15578 Lot A DP 362222).

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 17 February 2023. That conciliation conference was terminated, and the matter was listed for hearing.

3. Following the conciliation conference, the parties continued without prejudice discussions. By Notice of Motion, the Applicant sought to amend the development application. Leave to amend the application was granted on 1 May 2023.

4. Joint reports were filed in preparation for the hearing. Those reports concluded that the contentions previously in dispute between the parties were resolved on the basis of the amended development application and the imposition of appropriate conditions of consent. The discussion and the expert reports resulted in the parties reaching an in-principle agreement prior to the hearing. The parties’ agreement is for the grant of consent to the application, as amended, subject to the annexed conditions.

5. The parties sought orders from the Court for the vacation of the hearing and a listing for a further conciliation conference. That conciliation conference was listed on 30 August 2023. The matter commenced on site where the Court and parties heard from concerned residents. Following a conference with their experts, the Respondent confirmed that all contentions in this matter are resolved by the amended plans and the agreed conditions.

6. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction on the basis that:

1. The development application was lodged with the consent of the owners of the land: cl 49 Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

2. The development application was notified and publicly exhibited from 30 September 2021. The Respondent received 185 submissions. At the commencement of both conciliation conferences, the parties and the Court were addressed by members of the parties, detailing their concerns. In determining the development application, I have read and considered the submissions received by the public as required by s 4.15(1)(d) of the EPA Act. I am satisfied that the issues raised have been considered by the parties and where appropriate are addressed in either amendments to the development application or conditions of consent.

3. The Ku-ring-gai Local Environmental Plan 2015 (LEP 2015) applies to the land. The site is zoned R2 Low Density Residential. The proposed development, being centre based childcare facility is permissible with consent. In determining the development, I have given consideration to the objectives of the zone which are:

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

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

• To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

4. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2015.

5. Pursuant to cl 4.3 of LEP 2015, the maximum height of a building on the land must not exceed 9.5 metres. The development application complies with this standard.

6. Pursuant to cl 4.4 of LEP 2015, the maximum floor space ratio (FSR) for the land is 0.3:1. The development application complies with this standard.

7. Clause 6.1 (Acid sulfate soils) applies to the land as it is identified on the map as Class 5. There are no adjacent class 1, 2 or 3 land within 500m. The extent of excavation is limited to the building footings, trenching for services and minor site leveling, which is not expected to exceed 600-800 mm and will not lower the water table. Accordingly, a management plan is not required under cl 6.1(3) of LEP 2015.

8. As the development application proposes earthworks, cl 6.2 of LEP 2015 applies. The parties agree and I accept that the earthworks proposed are minor. In determining the development application, I have given consideration to the matters at cl 6.2(3) and I am satisfied none warrant the refusal of the development application.

9. The site is identified as containing terrestrial biodiversity on the Terrestrial Biodiversity Map (BIO_012), engaging cl 6.3 of LEP 2015. There are a number of street trees located within the road reserve of Killeaton Street that are Sydney Blue Gum, which form part of the Blue Gum High Forest endangered ecological community. The roots of those trees have the potential to be adversely affected by the development application, particularly the driveway. The development application, as amended, proposes that the driveway be paved with hydropavers which require only very limited interference with the soil and minimal sand base and they permit moisture to penetrate to the roots. Landscaping adjacent to Killeaton Street, including in the south-eastern corner of the Land, has been designed to avoid any impact of the significant trees, and was considered in the landscaping and ecology joint reports. Extensive and detailed conditions have been imposed to protect the trees during construction including supervision by a project arborist (see conditions 13 to 19). The matters in cl 6.3 have been considered and the parties agree, and I accept I can be satisfied that the development application, as amended, will not have any adverse impacts on the Sydney Blue Gum High Forest nor the biodiversity on the Land.

10. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The development application is accompanied by a Phase 2 Contamination Assessment and a Remedial Action Plan (RAP) which details the management and remediation of the site. Compliance with these documents is included in the conditions of consent, including the requirement for the remediation to be competed and a site audit statement to issued prior to the issue of a construction certificate. The parties agree, and I accept that the Court can be satisfied that the RAP and the consent conditions together establish that the site will be suitable, post remediation, for use as a childcare centre pursuant to s 4.6(1) of SEPP RH.

11. The development application proposes a centre based childcare use. The parties agree, and I accept that the appropriate approach to take is that of the Court in Kyrich Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 1190 at [33] to [40]. Consistent with that decision, the development is subject to the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI). Part 3.3 of SEPP TI contains provisions which apply to centre based childcare facilities, in particular, ss 3.22 and 3.23.

12. Section 3.22(2) of SEPP TI provides that the consent authority must not grant development consent to development to which this clause applies except with the concurrence of the Regulatory Authority. Section 3.22(1) sets out the circumstances for when the clause applies as follows:

(1)   This section applies to development for the purpose of a centre-based child care facility if—

(a) the floor area of the building or place does not comply with regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, or

(b)  the outdoor space requirements for the building or place do not comply with regulation 108 (outdoor unencumbered space requirements) of those Regulations.

13. The development application demonstrates compliance with reg 107 of the Education and Care Services National Regulations (Education Regulations) in that the architectural plans indicate provision of space in excess of the required indoor space/child.

14. The development application demonstrates compliance with reg 108 of the Education Regulations in that the architectural plans indicate provision of space in excess of the required outdoor space/ child. Thus, I am satisfied that as compliance with regs 107 and 108 has been achieved and s 3.22 of SEPP TI does not apply and therefore concurrence of the Regulatory Authority is not required.

15. Section 3.23 of SEPP TI provides that before determining a development application for development for the purpose of a centre-based childcare facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline (the Guidelines), in relation to development. As the guidelines have been addressed in the Statement of Environmental Effects accompanying the development application, I can be satisfied the Guidelines have been considered

7. 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)).

8. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

9. The Court notes that pursuant to cl 55 of the EPA Regulation, the Respondent agrees to, the Applicant’s amendment of Development Application No. DA0378/21, in accordance with the following amended plans and documents, which have been uploaded to the NSW Planning Portal:

Plan no.	Drawn by	Dated
Landscape Plans
LP01 Rev K LP02 Rev K LP03 Rev K	JCA JCA JCA	15.06.2023 15.06.2023 15.06.2023

Document(s)	Dated
Remedial Action Plan, Report Number 11895.01cRMAP, prepared by Getex Pty Limited	28.07.2023
Green star Benchmark Report, prepared by HYA Consulting Engineers, Project number P22005, Rev B	17.07.2023

10. The Court orders that:

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 agreed sum of $18,000.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA0378/21, as amended, for the demolition of existing structures and construction of a centre based childcare facility for 72 children and associated works at 1 and 3 Carbeen Avenue, St Ives (Lot 23 DP 15578 Lot A DP 362222) subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A

Decision last updated: 21 September 2023