Betrod Pty Ltd v Canterbury-Bankstown Council

[2025] NSWLEC 1275

Land and Environment Court

New South Wales

Medium Neutral Citation:

Betrod Pty Ltd v Canterbury-Bankstown Council [2025] NSWLEC 1275

Hearing dates:

Conciliation Conference on 10 March 2025

Date of orders:

30 April 2025

Decision date:

30 April 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA-535/2024 (as amended) for the demolition of existing structures, tree removal and construction of a two-storey centre-based childcare facility for 80 children over a basement, on land legally described as Lot 100 in Deposited Plan 1215533 and Lot 13 in Deposited Plan 15217, and known as 22-24 Milton Street, Bankstown, subject to the conditions at Annexure A.

(3) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amended development application, in the amount of $2,800.

Catchwords:

APPEAL – Development application – childcare centre – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.15

Land and Environment Court Act 1979, ss 17, 34

Canterbury-Bankstown Local Environmental Plan 2023, cll 4.3, 4.4, 6.2, 6.3, 6.9

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Pt 6.2

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.26

Cases Cited:

Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223

Texts Cited:

Canterbury-Bankstown Development Control Plan 2023

Department of Planning, Industry and Environment, Child Care Planning Guideline (1 October 2021)

Category:

Principal judgment

Parties:

Betrod Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Miller & Prince Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2024/351542

Publication restriction:

Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s Development Application No. DA-535/2024 (Development Application) seeking consent for the demolition of existing structures, tree removal and construction of a two-storey childcare centre with capacity for 80 children on land legally described as Lot 100 in Deposited Plan 1215533 and Lot 13 in Deposited Plan 15217 and known as 22-24 Milton Street, Bankstown (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 12 June 2024.

4. The Development Application was publicly notified between 26 June and 16 July 2024.

5. On 17 September 2024, the Development Application was refused.

6. On 23 September 2024, the applicant commenced proceedings in relation to the refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 10 March 2025 and adjourned on one occasion.

8. During the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

9. Further amended plans and documents were filed with the Court on 9 April 2025 (cited at [40(1)]). The amendments include:

1. reconfiguration and relocation of internal play areas;

2. amendment of outdoor play areas;

3. amendment of fire egress from stairs to a ramp;

4. updated architectural and landscaping plans;

5. updated plan of management;

6. updated environmental noise impact assessment;

7. updated parking and traffic impact assessment; and

8. provision of a flood risk management report,

(Amended Development Application).

10. The decision agreed upon by the parties is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

11. Under s 34(3) of the LEC 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.

Jurisdictional considerations

12. 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 for the reasons that follow.

Owners’ consent

13. The applicant is the registered proprietor of the Subject Land and has standing to commence these proceedings under s 8.7(1) of the EPA Act (notwithstanding that the Development Application itself was lodged by Baini Design Pty Ltd as agent for the applicant) (see Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [42] and [54] and tabs 2 and 3 of the Class 1 Application).

State Environmental Planning Policy (Resilience and Hazards) 2021

14. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

15. The Amended Development Application includes a Preliminary Environmental Site Investigation prepared by Environmental Consulting Services dated 22 March 2024 (PSI) (see Tab 15 of the Class 1 Application). The PSI concludes that the Subject Land is unlikely to be contaminated due to its long history of residential use (supported by sampling results) and that the Subject Land can be made suitable for the proposed development provided the recommendations at p 32 of the PSI are implemented. The recommendations of the PSI have been incorporated into the Agreed Conditions (see condition 2). The parties agree, and I accept that, the requirements of s 4.6 of the RH SEPP are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. The Amended Development Application proposes the removal of trees to facilitate the proposed development.

17. The parties agree that as the Amended Development Application seeks development consent to remove the identified trees, Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) relating to permits, is not enlivened due to the BC SEPP regulating a different and separate scheme to seeking development consent under the EPA Act.

18. Chapter 6 of the BC SEPP applies to the proposed development as the Subject Land is located within the Sydney Harbour Catchment. Part 6.2 of Ch 6 sets out various matters in relation to which the consent authority must be satisfied, or must consider before granting development consent.

19. The parties submit, and I accept, that the matters for consideration and satisfaction under Pt 6.2 have been addressed in the:

1. Amended Statement of Environmental Effects prepared by Pivotal Planning dated April 2025 (SEE) (see p 17); and

2. Stormwater Plans prepared by Deboke Engineering, dated 31 March 2025.

State Environmental Planning Policy (Transport and Infrastructure) 2021

20. Section 3.23 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP) relevantly provides that before determining a development application for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline 2021 (Guidelines) in relation to the proposed development.

21. The proposed development’s compliance with the Guidelines has been addressed in the SEE (see pp 8-17).

22. In determining the Amended Development Application, I confirm that I have taken into consideration the applicable provisions of the Guidelines in relation to the proposed development for the purpose of s 3.23 of the TISEPP.

23. Section 3.26 of the TISEPP sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) provides the requirements for indoor and outdoor space.

24. The Amended Development Application provides at least 3.25m² of unencumbered indoor play space and at least 7m² of unencumbered outdoor play space per child (see pp 13 and 16, respectively, of the SEE) which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Services National Regulations.

25. In determining the Amended Development Application, I am satisfied that the matters outlined in Ch 3 of the TISEPP have been considered and addressed.

Canterbury-Bankstown Local Environmental Plan 2023

26. The Subject Land is zoned R4 High Density Residential under the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP). Accordingly, the proposed development, being a “centre-based child care facility” is permissible with consent in the R4 zone. I have had regard to the zone objectives which are extracted below:

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

•  To provide a variety of housing types within a high density residential environment.

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

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To allow for increased residential density in accessible locations to maximise public transport patronage and encourage walking and cycling.

•  To promote a high standard of urban design and local amenity.

27. An assessment of the proposed development against the R4 zone objectives is set out at p 20 of the SEE. The parties agree that the Amended Development Application is consistent with the objectives of the R4 zone insofar as they are relevant.

28. Clause 4.3 of the CBLEP prescribes a maximum building height of 13m for the Subject Land (Height Standard). The Amended Development Application seeks a maximum height of 9m, thus complying with the Height Standard.

29. Clause 4.4 of the CBLEP prescribes a floor space ratio of 1.1 (FSR Standard). The Amended Development Application seeks a maximum floor space ratio of 0.32:1, thus complying with the FSR Standard.

30. Pursuant to cl 6.2 of the CBLEP relating to earthworks, the consent authority must consider specified matters before granting development consent. The parties agree, and I accept, that the matters listed in cl 6.2(3) of the CBLEP have been adequately considered, having regard to the fact that:

1. the proposed excavation is consistent with the Subject Land’s context and is in accordance with the respondent’s current and proposed planning strategies;

2. the destination of any excavated material is to be in accordance with the conditions of consent (see for example, conditions 5 and 6 of the Agreed Conditions) and has been considered in the sampling analysis carried out in the PSI;

3. it is considered unlikely that excavation will lead to the disturbance of relics as the Subject Land is not known to be situated within an area of archaeological significance; and

4. the earthworks are unlikely to impact on any watercourse, drinking water catchment or environmentally sensitive areas.

31. Pursuant to cl 6.3 of the CBLEP relating to stormwater management and water sensitive urban design, the consent authority must be satisfied of specified matters before granting development consent. The parties agree, and I accept, that the matters listed in cl 6.3(3) have been addressed and satisfied, having regard to the Stormwater Plans, which include a sediment and erosion control plan and the Flood Risk Management Report prepared by Deboke Engineering Consultants dated 24 March 2025.

32. Pursuant to cl 6.9 of the CBLEP relating to essential services, before granting development consent, the consent authority must be satisfied of the matters listed in cl 6.9. I am satisfied, having regard to the existing services connected to the Subject Land and those proposed as part of the Amended Development Application, that the necessary utility services and supply are available and will be connected to the proposed development.

Canterbury-Bankstown Development Control Plan 2023

33. An assessment of relevant provisions of the Canterbury-Bankstown Development Control Plan 2023 is contained at pp 21-22 of the SEE.

Remaining matters under s 4.15(1) of the EPA Act

34. The matters listed in s 4.15(1)(b), (c) and (e) are considered generally in the SEE (see p 22) and there is no impediment to the approval of the Amended Development Application having regard to those matters.

35. In respect of s 4.15(1)(d) of the EPA Act, as set out above, the Development Application as lodged was publicly exhibited between 26 June and 16 July 2024. Two written submission was received, which raised concerns regarding the emission of unreasonable noise, traffic generation and lack of available street parking.

36. Following the amendments outlined at [9], the proposal was re-notified. One written objection was received in response to the re-notification raising issues regarding the stormwater easement and overland flood path.

37. I am satisfied that the written submissions have been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

38. 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.

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

40. The Court notes that:

1. The respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA-535/2024 in accordance with the following amended plans and documents:

Tab	Drawing No and Revision	Title		Prepared by		Date
Architectural Plans
1	Drawing No. 00, Rev D	Cover Page		Baini Design		11/3/2025
	Drawing No. 01, Rev D	Compliance Table/Location Plan		Baini Design		11/3/2025
	Drawing No. 02, Rev D	Site Context Plan		Baini Design		11/3/2025
	Drawing No. 03, Rev D	Site Analysis Plan		Baini Design		11/3/2025
	Drawing No. 04, Rev D	Shadow Diagrams		Baini Design		11/3/2025
	Drawing No. 05, Rev D	Site Plan		Baini Design		11/3/2025
	Drawing No. 06, Rev D	Demolition Plan		Baini Design		11/3/2025
	Drawing No. 07, Rev D	Ground Floor Plan		Baini Design		11/3/2025
	Drawing No. 08, Rev D	First Floor Plan		Baini Design		11/3/2025
	Drawing No. 09, Rev D	Roof Plan		Baini Design		11/3/2025
	Drawing No. 10, Rev D	Elevations		Baini Design		11/3/2025
	Drawing No. 11, Rev D	Elevations 02		Baini Design		11/3/2025
	Drawing No. 12, Rev D	Section		Baini Design		11/3/2025
	Drawing No. 13, Rev D	WC Details		Baini Design		11/3/2025
	Drawing No. 14, Rev D	Kitchen & Laundry Details		Baini Design		11/3/2025
	Drawing No. 15, Rev D	Typical Nappy Change Details		Baini Design		11/3/2025
	Drawing No. 16, Rev D	Typical Bottle Prep Detail		Baini Design		11/3/2025
	Drawing No. 17, Rev D	Typical Craft Bench Detail		Baini Design		11/3/2025
	Drawing No. 18, Rev D	Schedule of Finishes		Baini Design		11/3/2025
	Drawing No. 19, Rev D	Solar Access Diagram		Baini Design		11/3/2025
	Drawing No. 20, Rev D	Calculation Plan		Baini Design		11/3/2025
	Drawing No. 21, Rev D	Indoor Calc. Plan – 0-2		Baini Design		11/3/2025
	Drawing No. 22, Rev D	Indoor Calc. Plan – 2-3		Baini Design		11/3/2025
	Drawing No. 23, Rev D	Indoor Calc. Plan – 3-5		Baini Design		11/3/2025
	Drawing No. 24, Rev D	Fencing Detail – First Floor		Baini Design		11/3/2025
	Drawing No. 25, Rev D	3D Perspectives		Baini Design		11/3/2025
	Drawing No. 26, Rev D	Streetscape Elevation		Baini Design		11/3/2025
	Drawing No. 27, Rev D	Finishes Plan – Ground Floor		Baini Design		11/3/2025
	Drawing No. 28, Rev D	Finishes Plan – First Floor		Baini Design		11/3/2025
	Drawing No. 29, Rev D	Interior Solar Access + Ventilation		Baini Design		11/3/2025
	Drawing No. 30, Rev D	Privacy Diagram		Baini Design		11/3/2025
	Drawing No. 31, Rev D	Privacy Perspectives		Baini Design		11/3/2025
	Drawing No. 32, Rev D	Ground Floor Evacuation Diagram		Baini Design		11/3/2025
	Drawing No. 33, Rev D	First Floor Evacuation		Baini Design		11/3/2025
Landscape Plans
2	Drawing No. 01, Rev C	Landscape Concept – Basement Floor		Outside In Design Group		21/03/2025
	Drawing No. 02, Rev C	Landscape Concept Plan – Ground Floor		Outside In Design Group		21/03/2025
	Drawing No. 03, Rev C	Plant Schedule & Typical Details		Outside In Design Group		21/03/2025
	Drawing No. 04, Rev C	Construction and Planting Details		Outside In Design Group		21/03/2025
	Drawing No. 05, Rev C	Landscape Specification		Outside In Design Group		21/03/2025
Engineering Plans
3	Drawing No. S100, Rev 02	Cover Sheet		Deboke Engineering Consultants		21/3/2025
	Drawing No. S101, Rev 02	Stormwater Drainage Plan – Specifications Sheet		Deboke Engineering Consultants		21/3/2025
	Drawing No. S200, Rev 02	Basement Plan		Deboke Engineering Consultants		21/03/2025
	Drawing No. S201, Rev 02	Ground Floor Plan 1 of 2		Deboke Engineering Consultants		21/03/2025
	Drawing No. S202, Rev 02	Ground Floor Plan 2 of 2		Deboke Engineering Consultants		21/03/2025
	Drawing No. S203, Rev 02	Roof Plan		Deboke Engineering Consultants		21/03/2025
	Drawing No. S300, Rev 02	Details Sheet 1 of 4		Deboke Engineering Consultants		21/03/2025
	Drawing No. S301, Rev 02	Details Sheet 2 of 6		Deboke Engineering Consultants		21/3/2025
	Drawing No. S302, Rev 02	Details Sheet 3 of 6		Deboke Engineering Consultants		21/3/2025
	Drawing No. S303, Rev 02	Details Sheet 4 of 6		Deboke Engineering Consultants		21/3/2025
	Drawing No. S304, Rev 02	Details Sheet 5 of 6		Deboke Engineering Consultants		21/3/2025
	Drawing No. S305, Rev 02	Details Sheet 6 of 6		Deboke Engineering Consultants		21/3/2025
	Drawing No. S400, Rev 02	Erosion and Sediment Control Plan		Deboke Engineering Consultants		21/3/2025
Swept Path Plans
4	Sheet 1 of 7	Car Park Compliance Review – Basement Sight Distance Assessment		Stanbury Traffic Planning		11/03/2025
	Sheet 2 of 7	Car Park Compliance Review – Basement Sight Distance Assessment		Stanbury Traffic Planning		11/03/2025
	Sheet 3 of 7	Car Park Compliance Review – Basement Concept Layout		Stanbury Traffic Planning		11/03/2025
	Sheet 4 of 7	Car Park Compliance Review – Swept Path Assessment		Stanbury Traffic Planning		11/03/2025
	Sheet 5 of 7	Car Park Compliance Review – Swept Path Assessment		Stanbury Traffic Planning		11/03/2025
	Sheet 6 of 7	Car Park Compliance Review – Swept Path Asessment		Stanbury Traffic Planning		11/03/2025
	Sheet 7 of 7	Car Park Compliance Review – Swept Path Assessment		Stanbury Traffic Planning		11/03/2025
Reports
5	Amended Plan of Management		Pivotal Planning		24 March 2025
6	Flood Risk Management Report		Deboke Engineering Consultants		24 March 2025
7	Amended Environmental Noise Impact Assessment		Day Design Consulting Acoustic Engineers		24 March 2025
8	Amended Parking and Traffic Assessment Report		Stanbury Traffic Planning		21 February 2025
9	Childcare Expert Report		Early Education Solutions		24 March 2025
10	Risk Assessment Action Plan		Lynda Campbell		24 March 2025
11	Waste Management Plan		Dickens Solutions		21 March 2025
12	Accessibility Compliance Report		Access Link Consulting		19 March 2025
13	BCA Performance Requirement Report		FE Consulting Pty Limited – Consulting Fire Engineers		24 March 2025
14	Amended Statement of Environmental Effects		Pivotal Planning		April 2025

2. The applicant filed the amended plans and documents outlined above with the Court on 9 April 2025.

Orders

41. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. DA-535/2024 (as amended), for the demolition of existing structures, tree removal and construction of a two-storey centre-based childcare facility for 80 children over a basement, on land legally described as Lot 100 in Deposited Plan 1215533 and Lot 13 in Deposited Plan 15217, commonly known as 22-24 Milton Street, Bankstown, subject to the conditions in Annexure A.

3. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amended development application, in the amount of $2,800.

N Targett

Commissioner of the Court

Annexure A (654810, pdf)

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Decision last updated: 30 April 2025