Birch Properties Group Pty Ltd v The Hills Shire Council

[2022] NSWLEC 1277

Land and Environment Court

New South Wales

Medium Neutral Citation:

Birch Properties Group Pty Ltd v The Hills Shire Council [2022] NSWLEC 1277

Hearing dates:

Conciliation conference on 28 February 2022, 14 March 2022 and 6 April 2022

Date of orders:

7 June 2022

Decision date:

07 June 2022

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

1) The appeal is upheld.

2) The Applicant is to pay the Respondent’s costs that have been thrown away as a result of the amendment to the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $6,500.00, to be paid within 21 days of the date of the orders being made.

3) Development consent is granted to Development Application 1795/2021/HA for the construction of a single storey centre based childcare facility for 90 children with basement carparking for 30 vehicles and the removal of 2 trees at 37-39 Crane Road, Castle Hill, subject to conditions contained in Annexure ‘A’.

Catchwords:

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

Legislation Cited:

Biodiversity Conservation Act 2016

Biodiversity Conservation Regulation 2017, cl 7.2

Education and Care Services National Regulations

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

Environmental Planning and Assessment Regulation 2000, cl 55

Hills Local Environmental Plan 2019, cl 5.10, 5.21, 7.1, 7.2
Interpretation Act 1987, s30A

Land and Environment Court Act 1979, s34

NSW Department of Planning and Environment, Child Care Planning Guideline (August 2017)
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Educational Establishment and Child Care Facilities) 2017,cl 23
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Sch 9

Category:

Principal judgment

Parties:

Birch Properties Group Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/289204

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application 1795/2021/HA (the DA) by The Hills Shire Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss4.15 and 4.16 of the EPA Act.

2. The DA relates to a 1,866m2 parcel of land legally described as Lot 201 in DP 1001460 at 37-39 Crane Road, Castle Hill (the Site). The DA as submitted to Council sought consent for the construction of a single storey ‘centre-based child care facility’ (child care centre) accommodating 92 children, basement level parking for 30 vehicles, removal of 2 trees and associated landscaping.

3. The Development Application was notified by the Respondent for a period of 21 days from 15 June to 6 July 2021. Four (4) submissions were made to the Respondent in response, and these submissions have been considered by the Respondent and by the Court.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conferences which were held on 28 February, 14 March and 6 April 2022. Due to the Covid 19 protocols in place at the time, and by agreement between the parties, the conciliation conference was held via teleconference and there was no prior view of the site. Council provided a copy of all resident objections in advance of the conciliation conference.

5. The proposed development for which consent is sought has been amended by the applicant (Amended Development Application) and formed the basis of discussions at the s34 conciliation conference. At the conciliation conference the parties reached an agreement, based on the amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties filed that agreement and agreed conditions of consent with the Court on 12 April 2022, and copies of relevant plans and documents referred in the agreement also on 12 April 2022.

6. The main changes between the plans as originally submitted to Council and the Amended Development Application plans the subject of the s34 agreement are:

1. a reduction in the number of children from 92 to 90;

2. provision of an acoustic barrier in the north-eastern corner of the site;

3. relocation of the proposed OSD to within the building footprint to enable deep soil landscaping along the northern boundary;

4. alterations to the landscaping design to provide increased canopy trees and more substantial landscape treatment within the site, in particular to the eastern boundary;

5. a minor reconfiguration to the area of unencumbered outdoor play space, resulting from the alterations to the landscape design and acoustic recommendations;

6. increase in window sill height to the rear playroom to increase amenity relating to privacy impacts to adjoining neighbour;

7. minor amendments to the access to the waste room and services in the basement; and

8. removal of signage.

7. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraphs 8 - 9 below.

Satisfaction of jurisdiction

8. The relevant jurisdictional matters in relation to the Hills Local Environmental Plan 2019 (HLEP) are:

1. The development is for the purpose of a centre based child care facility which is a use permissible with consent in the R3 Medium Density Residential zone. I accept the advice of the parties and the evidence contained in the Amended Development Application that the development does not contravene any development standard in HLEP and the proposed development is consistent with the objectives of the R3 Medium Density Residential Zone.

2. The site is not a heritage item, nor is it located within a Heritage Conservation Area, under cl 5.10 of the HLEP.

3. The site is not situated on flood prone land, pursuant to cl 5.21 of the HLEP.

4. The site is not mapped as having Acid Sulfate Soils, under cl 7.1 of the HLEP.

5. Excavation for the basement carpark comprises earthworks, pursuant to cl 7.2 of the HLEP. The earthworks are designed to ensure no adverse impacts to adjoining properties and suitable construction methods, soil erosion and sediment control measures during construction are included in the conditions of consent. I accept from the evidence contained in the Amended Development Application that the site is not anticipated to contain any contamination, there is a low likelihood of any relics and all stormwater and flooding impacts will be managed during the construction phase.

9. The relevant jurisdictional matters in relation to other relevant statutory instruments are:

1. The Biodiversity Conservation Act 2016 (BCA Act) applies as the site contains two significant trees, being Tree 2 and Tree 3 (Syzygium Paniculatum) identified on the amended Landscape Plans numbered 1406, Revision E dated 29 March 2022, which are listed as “endangered” under Sch 1 of the BCA Act. I am satisfied from the evidence that the two trees to be removed from the site do not comprise Koala Habitat Vegetation and their removal will not trigger the Biodiversity Offsets Scheme threshold in cl 7.2 of the Biodiversity Conservation Regulation 2017.

2. State Environmental Planning Policy (Biodiversity and Conservation) 2021 also applies to the site. Section 2.6 of the Biodiversity & Conservation SEPP states that a person must not clear non-exempt vegetation in any applicable area without a permit granted by the Council. An arborist report prepared by Treehaven Environscapes (24 September 2021) and a landscape plan have been provided as part of the DA and the landscape plan (29 March 2022) has been amended as part of the proposal. The impact on existing vegetation has been assessed having regard to Ch 2 of the Biodiversity & Conservation SEPP and I am satisfied that the additional tree planting proposed as part of the Amended Development Application, including the planting of mature Syzygium Paniculatum trees, will adequately compensate for the removal of the two trees.

3. The Development Application was lodged under the provisions of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP). On 1 March 2022, the Child Care SEPP was repealed, and its provisions were transferred to State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). Notwithstanding the repeal, the savings and transitional provisions contained in subsection (1) of sch 9 of the Transport and Infrastructure SEPP provide that chapter 3 (educational establishments and childcare centres) “does not apply to or in respect of the determination of a development application made under Part 4 of the Act, but not finally determined before the commencement of Chapter 3”. The amended application has not been finally determined and is a kind referred to in subsection 1 of Schedule 9 and therefore the Child Care SEPP applies to the proposal.

4. I am satisfied with the advice of the parties that the proposal is consistent with the relevant provisions of the Child Care SEPP and the associated Child Care Planning Guideline.  The DA has considered the applicable matters of the Child Care Planning Guideline, as required under cl 23 of the Child Care SEPP. Concurrence from the Department of Education under cl 22(2) of the Childcare SEPP is not required because the DA complies with:

1. regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, and

2. regulation 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations.

5. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the land and requires consideration of any contamination and associated remediation. A Preliminary Site Investigation was prepared by Geotechnical Consultants Australia dated 24 March 2021 was included in the Development Application documents originally lodged with Council which concludes that the potential for significant contamination of land and groundwater within the site is low. I am therefore satisfied that the applicant has adequately considered the status of the site and method of remediation in accordance with the Resilience and Hazards SEPP.

Disposal of proceedings in accordance with the parties’ decision

10. 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’ agreement.

11. The Court notes that:

1. The Hills Shire Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application 1795/2021/HA in accordance with the documents listed below.

Plan name	Drawing Number	Revision	Date	Prepared by
Amended Architectural Plans
General Notes	A0.00	D	09.03.22	Creative Drafting Services
Site Plan and Notes	A1.00	D	09.03.22	Creative Drafting Services
Basement and Carpark Layout and Notes	A1.01	D	09.03.22	Creative Drafting Services
Ground Floor Layout	A1.02	D	09.03.22	Creative Drafting Services
Roof Layout	A1.03	D	09.03.22	Creative Drafting Services
Playground set-outs and notes	A1.04	D	09.03.22	Creative Drafting Services
Elevations 1-4 and Section 5	A1.05	D	09.03.22	Creative Drafting Services
Coloured Scheme Elevations	A1.06	D	09.03.22	Creative Drafting Services
Coloured unencumbered area layouts	A1.07	D	09.03.22	Creative Drafting Services
Site Cut and Fill Plan	A1.08	D	09.03.22	Creative Drafting Services
Landscape Ratio Plan	A1.09	D	09.03.22	Creative Drafting Services
Emergency Evacuation Plan	F1.00	D	09.03.22	Creative Drafting Services
Playground Set-outs and Notes - as annotated with Acoustic Fence Legend	A1.04	D	08/04/2022	Creative Drafting Services and Day Design Pty Ltd
Structural Plan
Crash Barrier Plan	S1	A	22.02.22	Capital Engineering Consultants
Amended Landscape Plans
Ground Floor Landscape Plan	1406	E	29.03.22	Site Design Studios
Section and Elevation	1406	E	29.03.22	Site Design Studios
Planting Schedule Details	1406	E	29.03.22	Site Design Studios
Amended Stormwater Plans
Cover Sheet, Notes and Legend	000	E	24.03.22	Ace Civil Stormwater Services
Stormwater Concept Plan basement level Sheet 1 of 2	101	E	24.03.22	Ace Civil Stormwater Services
Stormwater Concept Plan basement level Sheet 2 of 2	102	E	24.03.22	Ace Civil Stormwater Services
Stormwater Concept Plan Ground Level	103	E	24.03.22	Ace Civil Stormwater Services
WSUD Catchment Plan	104	E	24.03.22	Ace Civil Stormwater Services
OSD & WSUD & RWT Details and calculations Sheet 1 of 2	105	E	24.03.22	Ace Civil Stormwater Services
OSD & WSUD & RWT Details and calculations Sheet 2 of 2	106	E	24.03.22	Ace Civil Stormwater Services
Sediment and Erosion Control Plan	107	E	24.03.22	Ace Civil Stormwater Services
Miscellaneous Details Sheet	108	E	24.03.22	Ace Civil Stormwater Services
Stopping Site Distance Plan
Stopping Site distance	4472122-1	A	Feb 2022	Hemanote Consultants
Amended Reports
Schedule of amendments prepared by Creative Drafting Services dated 4 April 2022
Pedestrian Sightline Diagram prepared by Hemanote Consultants dated March 2022
Tree Impact Assessment prepared by Treehaven Environscapes dated 24 September 2021
Traffic and Parking Statement and vehicle swept path drawings prepared by Hemanote Consultants dated 25 February 2022
Amended Plan of Management prepared by Think Planners dated 30 March 2022
Amended Acoustic Assessment prepared by Day Design Pty Ltd dated 11 March 2022
Acoustic Assessment Addendum Letter prepared by Day Design Pty Ltd dated 8 April 2022
Explorer Retaining Wall Brochure prepared by Brickworks dated 2022

2. The Amended Development Application documents listed above were lodged on the NSW planning portal on 12 April 2022.

3. That the Applicant filed the amended development application with the Court on 12 April 2022.

12. The Court orders:

1. The appeal is upheld.

2. The Applicant is to pay the Respondent’s costs that have been thrown away as a result of the amendment to the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $6,500.00, to be paid within 21 days of the date of the orders being made.

3. Development consent is granted to Development Application 1795/2021/HA for the construction of a single storey centre based childcare facility for 90 children with basement carparking for 30 vehicles and the removal of 2 trees at 37-39 Crane Road, Castle Hill, subject to the conditions contained in Annexure ‘A’.

L Sheridan

Acting Commissioner of the Court

Annexure A (313351, pdf)

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Decision last updated: 07 June 2022