Bateman v Central Coast Council

[2019] NSWLEC 1101

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bateman v Central Coast Council [2019] NSWLEC 1101
Hearing dates:	Conciliation conference on 19 December 2018
Date of orders:	13 March 2019
Decision date:	13 March 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See orders at [7] below
Catchwords:	DEVELOPMENT APPLICATION – child care centre - conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Gosford Local Environmental Plan 2014 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Robert Bateman (Applicant) Central Coast Council (Respondent)
Representation:	Solicitors: G McKee, McKees Legal Solutions (Applicant) M Ball, Central Coast Council (Respondent)
File Number(s):	2018/175409
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a child care centre with basement car parking at 612 The Entrance Road, Wamberal. The appeal is lodged pursuant to s 8.7 to the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 19 December 2018. I presided over the conciliation conference.

3. After the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application is for a child care centre for 80 children with a gross floor area of 564.17m² and basement car parking for 27 vehicles, with improved vehicular access.

4. As the presiding Commissioner, I was 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 Court Act). I formed this state of satisfaction as each of the jurisdictional pre-requisites to the grant of consent that were identified by the parties has been met, for the following reasons:

• The development works are for the purposes of a centre based child care facility, which is a permissible use in the R2 Low Density Residential zone pursuant to the Gosford Local Environmental Plan 2014.

• The site is a vacant, newly created lot of land and the parties agree that, consistent with cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land, the land on which the development is proposed to be carried out is not known to be contaminated and is not land that is within an investigation area or land on which development referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out. Therefore the land does not meet the requirements of cl 7(4)(c) and a report pursuant to cl 7(2) is not required.

5. 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 Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. 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.

7. The Court orders that:

1. The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 of Annexure “B”.

2. The Appeal is upheld.

3. Development Application No. DA51671/2017 for a child care centre to accommodate 80 children with basement car parking is approved subject to the conditions set out in Annexure “B”.

…………………………

Commissioner Gray

Annexure B

s34 Plans

Plan of Management

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Decision last updated: 13 March 2019