ArtMade Architectural Pty Ltd v Blacktown City Council

[2021] NSWLEC 1552

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

ArtMade Architectural Pty Ltd v Blacktown City Council [2021] NSWLEC 1552

Hearing dates:

Conciliation Conference on 13 September 2021

Date of orders:

22 September 2021

Decision date:

22 September 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA-20-00245 (as amended) for demolition of existing buildings and construction of a 48-place child care centre, basement car parking and ancillary civil works on the land at 6 Dixon Street, Mount Druitt NSW is approved subject to the conditions set out at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – childcare centre – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Blacktown Local Environmental Plan 2015, cll 2.3, 4.3, 7.5

Education and Care Services National Regulations, ss 108 and 109

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 49

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

Texts Cited:

Childcare Planning Guideline

Category:

Principal judgment

Parties:

ArtMade Architectural Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
S Shneider (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Houston Dearn O’Connor (Respondent)

File Number(s):

2021/96722

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”) by ArtMade Architectural Pty Ltd (“the Applicant”) against the refusal of development application DA-20-00245. The development application, as amended, seeks consent for demolition of structures and construction of a 48-place childcare centre, basement parking and ancillary civil works. The development is proposed at 6 Dixon Street, Mount Druitt (Lot 3 Section C in DP 2042).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The appeal was listed for hearing on 13 September 2021, however prior to the commencement of the hearing the parties advised the Court that an in-principle agreement had been reached between the parties on the basis of amended plans. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 13 September 2021. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 13 September 2021.

4. 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 have formed this state of satisfaction for the following reasons:

1. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (“EP&A Regulation”), consent has been provided by the owners of the land the subject of the Development Application.

2. Pursuant to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (“SEPP 55”), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. The Applicant has prepared a preliminary Site Investigation Report dated 31 January 2020. That report notes that no evidence of contamination was observed on the site and concludes that, subject to the implementation of the report’s recommendations the site is suitable for the use. I note that compliance with the recommendations of the report is a requirement of the consent conditions. I am satisfied that the requirements of cl 7 of SEPP 55 are met.

3. The proposal is subject to the development controls for early education and care facilities under Pt 3 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (“SEPP Childcare”). I am satisfied cl 22 of SEPP Childcare, requiring concurrence, does not apply as the requirements for provision of unencumbered indoor and outdoor space (ss 108 and 109 of the Education and Care Services National Regulations) are met.

4. As required by cl 23 of SEPP Childcare in determining the development application I have taken into consideration the provisions of the Childcare Planning Guideline.

5. Pursuant to Blacktown Local Environmental Plan 2015 (“LEP 2015”) the Site is zoned R2 Low Density Residential. Childcare centres are a nominated use permitted with consent in the zone. In determining the development application, I have had regard to the objectives of the R2 – Low Density Residential zone.

6. The proposed development is compliant with the development standard for height (9m) in LEP 2015.

7. As required by cl 7.5 of LEP 2015 I am satisfied that the listed services, essential for the development, are available or that adequate arrangements have been made to make them available.

8. The application was notified in accordance with the relevant development control plan and the submissions have been considered.

5. 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.

6. 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.

7. The Court notes that:

1. Blacktown City Council (the Council) as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application DA-20-00245 the subject of these proceedings as shown in the following amended plans and details:

Plans

Drawing No.	Dated	Prepared by
Context & Site Analysis Plan – A02.01 – Issue C	14/04/2021	ArtMade Architects
Site Plan/ Demolition Plan – A02.02 – Issue D	10/07/21	ArtMade Architects
Floor Plans (basement and ground floor) – A03.01 – Issue D	10/07/21	ArtMade Architects
External Elevations – A04.01- Issue D	10/07/21	ArtMade Architects
Sections and External Finishes -A05.01- Issue D	10/07/21	ArtMade Architects
Shadow Diagrams -A06.02 – Issue C	10/07/21	ArtMade Architects
Landscape Plan, Pages 1-4 of 4	July 21	Conzept Landscape Architects

Reports

Report	Dated	Prepared by
Accessibility Review Report	27 April 2021	ABE Consulting
Noise Impact Assessment	July 2021	EMM Consulting
Geotechnical Investigation	8 April 2021	EI Australia
Traffic and Parking Assessment	12 July 2021	McLaren Traffic Engineering and Road Safety Consultants
Plan of Management	20 August 2021	Urbanesque Planning

(referred to as the ‘amended DA’).

2. That the Applicant uploaded the amended application on the NSW Planning portal on 13 September 2021.

3. That the Applicant has subsequently filed the amended application with the Court on 13 September 2021.

8. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

2. Development Application DA-20-00245 (as amended) for demolition of existing buildings and construction of a 48-place child care centre, basement car parking and ancillary civil works on the land at 6 Dixon Street, Mount Druitt NSW is approved subject to the conditions set out at Annexure ‘A’.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (338482, pdf)

**********

Amendments

27 September 2021 - Pursuant to UCPR r 36.17, and by consent of the parties, the Court:

Amends Annexure A to the judgment to remove references to two ‘Colour Scheme Elevations’ at Condition 3.1.1.

Decision last updated: 27 September 2021