Arquero Architects Pty Ltd v Georges River Council

[2024] NSWLEC 1808

Land and Environment Court

New South Wales

Medium Neutral Citation:

Arquero Architects Pty Ltd v Georges River Council [2024] NSWLEC 1808

Hearing dates:

Conciliation conference on 14 November 2024

Date of orders:

17 December 2024

Decision date:

17 December 2024

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No DA2023/0492 for lot amalgamation and construction of a 2 storey 88 place centre-based child care facility with 22 car parking spaces within a basement, associated landscaping and site works at 319-321 Rocky Point Road, Sans Souci (Lots 5 & 6 DP 4277) 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

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Georges River Local Environmental Plan 2021, cll 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.9, 6.12

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6, Ch 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, Ch 3, ss 2.48, 3.22, 3.23

Texts Cited:

Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

Category:

Principal judgment

Parties:

Arquero Architects Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
Dr J Smith (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s):

2023/452959

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 deemed refusal of Development Application DA2023/0492 for lot amalgamation and construction of a 2 storey 88 place centre-based child care facility with 22 car parking spaces within a basement, associated landscaping and site works at 319-321 Rocky Point Road, Sans Souci (Lot 5 & 6 DP 4277) by Georges River 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, which I presided over, was held on 14 November 2024.

3. The Respondent, as the relevant consent authority has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Applicant amending DA2023/0492 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, the Notice of Motion documents filed on 15 August 2024, joint expert reports and the documents that are referred to in condition 1 of Annexure A. 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 it 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. Pursuant to s 23 of the EPA Regulation owner’s consent accompanied the DA and formed part of the Class 1 Application.

2. The development application was notified by Georges River Council between 16 November 2023 and 14 December 2023 in accordance with Schedule 1 of the EPA Act. Two submissions objecting to the application were received. Following amendments to the plans the application was renotified from 2 to 16 September 2024 and two further submissions were received. No objectors provided oral submissions at the commencement of the s 34 conciliation conference.

3. In reaching agreement the parties have considered the concerns raised by objectors.

Georges River Local Environmental Plan 2021

4. 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 Georges River Local Environmental Plan 2021 (GRLEP).

5. 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”.

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

7. The proposed development complies with the maximum height of building development standard (maximum proposed height of 8.9m where a maximum of 9m applies) in accordance with cl 4.3 of GRLEP.

8. The proposed development complies with the maximum floor space ratio development standard (maximum proposed FSR of 0.41:1 where a maximum of 0.55:1 applies) in accordance with cl 4.4 of GRLEP.

9. The site is located within proximity of a local heritage item (Item I299 - St Andrews Church) and accordingly the impact of the proposed development on the heritage significance of the item has been considered in accordance with the requirements of cl 5.10(4) of GRLEP. A heritage impact assessment report prepared by Zoltan Kovacs Architects (April 2024) confirms that the proposal will not have an adverse impact on the heritage item. Further the heritage experts agree with this conclusion in their joint expert report dated 21 October 2024.

10. The site is not within the flood planning area to which cl 5.21 of GRLEP applies.

11. 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 GRLEP.

12. Development consent is required under cl 6.2 of GRLEP 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 on the basis of the submitted stormwater concept plans (Telford Civil, 11 November 2024), geotechnical report prepared by Eswnman Pty Ltd (19 June 2024) and various conditions of consent in Annexure A that the proposed earthworks will not give rise to any adverse environmental impacts.

13. Clause 6.3 of GRLEP requires that when deciding whether to grant consent the consent authority must be satisfied of a variety of matters in respect of stormwater management including water infiltration, on-site detention, stormwater runoff and impacts on the public drainage system. On the basis of the parties’ agreement, the stormwater management concept plans (Telford Civil, 11 November 2024) and the proposed conditions of consent I am satisfied in respect of the specified matters.

14. Clause 6.9 of GRLEP provides that development consent must not be issued unless the consent authority is satisfied that essential services (including water, electricity, sewage, stormwater drainage and vehicular access) are available or that adequate arrangements have been made to make them available for the proposed development. I am satisfied, on the basis of the existing use of the site and the amended plans, that essential services are available. Further Sydney Water has advised that it does not object to the application subject to recommended conditions of consent which have been included.

15. Clause 6.12(4) of GRLEP requires that development consent must not be issued unless the consent authority is satisfied that the development allows for the establishment of appropriate plantings, maintains privacy between dwellings, does not adversely affect existing trees, enables indigenous vegetation and habitat, integrates existing vegetation etc. Having regard to the amended landscape plans (Outside In Design Group, 12 November 2024), landscape joint expert report (30 October 2024) and the proposed conditions of consent, I am satisfied in respect of the relevant matters.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. Prior to the granting of consent consideration is required to be given to whether a subject site is contaminated under s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree that the site has a long history of residential use and therefore contamination is unlikely. Further the geotechnical report submitted with the Class 1 Application (Eswnman Pty Ltd, 19 June 2023) indicates that the site is not subject to soil contamination. Having regard to these matters and proposed conditions of consent I am satisfied that the requirements of the RH SEPP have been met and that the site is suitable for the proposed use.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

17. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies in respect of tree removal. The proposal is consistent with s 2.6 as consent is sought for tree removal and the impact has been found to be acceptable subject to replacement planting as required by the plans and the agreed conditions of consent.

18. The site is located within the Georges River Catchment in accordance with the BC SEPP. Chapter 6 of the BC SEPP requires consideration of the impacts of development on land located within the Georges River 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.

19. 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 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

20. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies as the amended DA is within proximity of an overhead electricity power line. The relevant authority, Ausgrid, has been consulted and raised no objection to the DA as confirmed via a screenshot of the NSW Planning Portal.

21. 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 18 September 2023 and agreement of 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 relevant 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.

Orders

11. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No DA2023/0492 for lot amalgamation and construction of a 2 storey 88 place centre-based child care facility with 22 car parking spaces within a basement, associated landscaping and site works at 319-321 Rocky Point Road, Sans Souci (Lots 5 & 6 DP 4277) is determined by the grant of consent subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

Annexure A

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Decision last updated: 17 December 2024