Awada v Council of the City of Sydney

[2025] NSWLEC 1276

Land and Environment Court

New South Wales

Medium Neutral Citation:

Awada v Council of the City of Sydney [2025] NSWLEC 1276

Hearing dates:

Conciliation conference on 25 February 2025

Date of orders:

02 May 2025

Decision date:

02 May 2025

Jurisdiction:

Class 1

Before:

Thorpe AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The Applicant's written request, made pursuant to section 4.6 of the Sydney Local Environmental Plan 2012 and seeking a variation to the height of buildings development standard of section 4.3 of the Sydney Local Environmental Plan 2012, is upheld.

(3) Development application number D/2024/783, as amended, for alterations and additions to the existing centre-based childcare facility and construction of a new building with basement car parking to be used as part of a centre-based childcare facility on land identified as Lot 627 and Lot 628 in Deposited Plan 7534 and known as 34-36 Dalmeny Avenue, Rosebery NSW 2018, is determined by the grant of development consent subject to the conditions included at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – child care centre – heritage conservation – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.10

State Environmental Planning Policy (Industry and Employment) 2021, Ch 3

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.25, 3.26, Ch 3

Sydney Local Environmental Plan 2012, cll 4.3, 5.10, 6.21C, 7.3, 7.9, 7.14, Sch 5

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Hasan Awada (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
G Garrett (Solicitor) (Respondent)

Solicitors:
Bartier Perry Pty Limited (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2024/447833

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application D/2024/783 (DA) by the Council of the City of Sydney (Council).

2. The applicant seeks consent for alterations and additions to the existing centre-based childcare facility and construction of a new building with basement car parking to be used as part of the centre-based childcare facility at 34-36 Dalmeny Avenue, Rosebery, legally described as Lot 627 and Lot 628 in Deposited Plan 7534 (site).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (Court Act), at which I presided. The conference was held on 25 February 2025.

4. Through the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the Court 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.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a jurisdictional statement that sets out the matters the Court must consider prior to the grant of development consent. I have considered the contents of the statement together with the documents referred to therein, the Class 1 Application and its attachments, 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. The Council, as the consent authority, pursuant to ss 37(1), 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) agreed to the applicant amending the Class 1 Application to rely on the following additional and amended materials:

Document Description

1. Amended Cl4.6 Variation Statement prepared by Planning Ingenuity, undated.

2. Arboricultural Impact Assessment prepared by Treehaven Environscapes, dated (amended on) 12 February 2025.

3. Architectural plans prepared by Innovate Architects, Issue D dated March 2025:

a) Sheet number 01 – Site Plan;

b) Sheet number 02 – Basement Plan;

c) Sheet number 03 – Ground Floor Plan;

d) Sheet number 04 – First Floor Plan;

e) Sheet number 05 – Elevations;

f) Sheet number 06 – Elevations;

g) Sheet number 07 – Sections;

h) Sheet number 07.1 – Sections;

i) Sheet number 08 – Shadow Diagrams;

j) Sheet number 09 – Outdoor Play Space Solar Access Diagrams;

k) Sheet number 09.1 – Outdoor Play Space 1 – Solar Access Images;

l) Sheet number 10 – Calculations;

m) Sheet number 11 – Ground Floor Demolition Plan;

n) Sheet number 12 – First Floor Demolition Plan.

4. Contention 7: Removal of Trees prepared by S McLoughlin, undated.

5. Emergency and Evacuation Procedure prepared by Kinderoos, dated February 2025.

6. Emergency Evaluation and Lockdown Policy prepared by Kinderoos, dated, August 2024.

7. Emergency Procedures Brochure prepared by Kinderoos, dated February 2025.

8. Emergency Rehearsal Plan prepared by Kinderoos, undated.

9. Evacuation Diagrams prepared by EZY Block Plans, Version A dated March 2025:

a) Basement;

b) Ground Floor;

c) Ground Floor;

d) Level 1;

e) Level 1.

10. Existing Plans prepared by Innovate Architects, undated:

a) Existing Site;

b) Existing Floor Plan;

c) Existing Elevations.

11. Landscape Plans prepared by Zenith Landscape Designs, Revision B dated 26 March 2025:

a) Sheet number 1 – Ground Floor Surfaces and Levels, Play Elements Plan;

b) Sheet number 2 – Ground Floor Planting Plan;

c) Sheet number 3 – First Floor Play Area and Planting Plan;

d) Sheet number 4 – Dalmeny Ave with Proposed Planting;

e) Sheet number 5 – Existing Tree Plan;

f) Sheet number 6 – Play Elements.

12. Lockdown Procedure prepared by Kinderoos, dated February 2025.

13. Plan of Management prepared by Kinderoos, dated 2 September 2024.

14. Regular Outing and Transportation Authorisation Form prepared by Kinderoos, dated January 2025.

15. Remedial Action Plan reference number AG-1580_2 Revision 0 prepared by Australian GeoEnviro Pty Ltd, dated 11 March 2025.

16. Risk Assessment Action Plans prepared by Kinderoos:

a) Potential Emergencies, dated August 2024;

b) Potential Risks to Children’s Health and Safety, dated 2024;

c) Outdoor Play Supervision, dated February 2025.

17. Risk Assessment of Emergency Evacuation Route and Assembly Points prepared by Kinderoos, undated.

18. Schedule of Conservation Works reference number C541 prepared by Weir Phillips Heritage, dated 11 March 2025.

19. Structural Adequacy Certificate reference number 24CSY328 prepared by CSY Advanced Engineers Pty Ltd, dated 4 March 2025.

20. Structural Plans prepared by CSY Advanced Engineers Pty Ltd:

a) Drawing number S1 – Shoring Wall and Details, Revision B dated 6 March 2025;

b) Drawing number S2 – First Floor Slab, Revision C dated 7 March 2025

c) Drawing number S3 – First Floor Slab Details, Revision A dated 7 March 2025

21. Plan Showing Levels and Detail prepared by Onesight Surveys, Revision 3 dated 17 February 2025.

Jurisdictional considerations

7. As the presiding Commissioner I am satisfied that the decision to grant development consent to the DA, as amended and 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 Court Act). I am satisfied that each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

State Environmental Planning Policy (Biodiversity and Conservation) 2021

8. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies as the proposal includes the removal of trees from within the site and the adjoining road reserve in Dalmeny Avenue (street trees).

9. I am satisfied on the basis of the arborist report and landscape plans lodged with the DA (Tabs 5 and 10 of the Class 1 Application) that the relevant matters under s 2.10 of the Biodiversity SEPP have been considered, including the impacts of the proposed tree removals on the heritage significance of the site, and that the proposed development is acceptable, subject to conditions.

State Environmental Planning Policy (Industry and Employment) 2021

10. Chapter 3 applies as the proposal includes signage. The Statement of Environmental Effects (Tab 17 of the Class 1 Application) includes a detailed assessment of the DA against the relevant objectives and assessment criteria. The amended proposal has reduced the amount of signage and is acceptable.

State Environmental Planning Policy (Resilience and Hazards) 2021

11. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The Preliminary Site Investigation (Tab 14 Class 1 Application) stated that the site can be made suitable for the proposed development. The Remediation Action Plan referenced in Annexure A incorporates intrusive soil investigations and nominates remediation actions to be undertaken to render the site suitable for the proposed development. The parties are satisfied and I accept that the requirements of s 4.6 are met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

12. Chapter 3 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP) applies to the DA. A detailed assessment of the proposal against the relevant provisions in the Infrastructure SEPP and the Childcare Planning Guideline is included in the Statement of Environmental Effects (Tab 17 Class 1 Application).

13. The DA was referred to the NSW Department of Education under s 3.22 of the Infrastructure SEPP. The concurrence request was approved on 2 April 2025.

14. The DA complies with the non-discretionary development standards in s 3.26 of the Infrastructure SEPP. The standard in s 3.25 does not apply.

15. The parties agree and I accept that the requirements of Chapter 3 are met.

Sydney Local Environmental Plan 2012

16. The site is located within Zone R2 Low Density Residential pursuant to Sydney Local Environmental Plan 2012 (SLEP). The parties agree and I accept that the proposed development is permissible with consent.

17. The parties agree and I accept that the DA is consistent with the aims of SLEP and with the sole relevant objective of the R2 zone, which is:

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

18. The proposal does not comply with the 7.5m maximum height limit applying to the land under cl 4.3 of SLEP. The existing building has a maximum height (to the roof ridge) of 9m (a 20% variation which is not proposed to be altered). The DA has a maximum height (to the roof ridge) of 7.75 metres, being 0.25m above the height standard (a variation of 3%).

19. Notwithstanding, I am satisfied that consent should be granted as the contravention arises primarily as a result of the existing building which is a heritage item. The contravention in the proposed building involves a small part of a gable roof which has been designed, following suggestions from Council and with the support of the heritage consultant, to complement the existing heritage building. The new building appears subservient to the existing heritage item.

20. I consider that the proposed non-compliance is minor, does not give rise to any significant adverse impacts and is consistent with Council’s heritage controls. Having regard to the circumstances of the case I am satisfied, based on the updated written request prepared by Planning Ingenuity lodged pursuant to cl 4.6 of SLEP, that:

• sufficient environmental planning grounds have been established that justify the breach in the height of building development standard by demonstrating that the proposed non-compliance is a result of the retention of and response to heritage items,

• compliance with the height of building development standard is unreasonable and unnecessary in the circumstances of the case, given that the proposal achieves the objectives of the development standard notwithstanding the non-compliance and will not result in any adverse impacts, and

• the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

21. I accept the advice of the parties that the DA complies with the other development standards under SLEP.

22. Clause 5.10 applies because the site is listed as an item of local significance in Sch 5 of SLEP. In accordance with cl 5.10, I have considered the relevant matters including:

1. Heritage Impact Statement prepared by Weir Phillips Heritage dated 2 September 2024, and

2. Schedule of conservations works prepared by Weir Phillips Heritage, dated 11 March 2025.

23. The amendments result in a more sympathetic design, and include a schedule of conservation works for the former Church. The parties agree and I accept that the requirements of s 5.10 are met.

24. I have considered the matters at s 6.21C(2) of SLEP. The parties agree and I am satisfied that the DA, as amended, exhibits design excellence.

25. The site is mapped as being Class 5 land (cl 7.14). The site is not within 500 m of land classed as Class 1, 2, 3 or 4 land under the LEP and the DA will not intercept any acid sulfate soils. The parties agree and I am satisfied that the requirements of cl 7.14 are met.

26. The DA complies with the requirements for car parking in cll 7.3(1) and 7.9(2).

Other considerations

27. Owner's consent to the lodgement of the application has been provided in accordance with the requirements of s 23(1) of the EPA Regulation.

28. The parties have considered the likely impacts of the DA and the suitability of the site for the DA and agree that the proposal, as amended, is acceptable.

29. The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions. A total of 15 submissions were received during the exhibition period. Council advises that these have been considered and are satisfactorily addressed in the DA and conditions of consent.

30. The parties also advised me that they have considered Sydney Development Control Plan 2012 and that the proposal is generally compliant or otherwise satisfactory in their considered view.

Conclusion

31. Based on the above details, 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 Court Act. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

32. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

33. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders

34. The Court orders:

1. The appeal is upheld.

2. The Applicant's written request, made pursuant to section 4.6 of the Sydney Local Environmental Plan 2012 and seeking a variation to the height of buildings development standard of section 4.3 of the Sydney Local Environmental Plan 2012, is upheld.

3. Development application number D/2024/783, as amended, for alterations and additions to the existing centre-based childcare facility and construction of a new building with basement car parking to be used as part of a centre-based childcare facility on land identified as Lot 627 and Lot 628 in Deposited Plan 7534 and known as 34-36 Dalmeny Avenue, Rosebery NSW 2018, is determined by the grant of development consent subject to the conditions included at Annexure A.

A Thorpe

Acting Commissioner of the Court

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Annexure A (409584, pdf)

Decision last updated: 02 May 2025