Casula Family Care Pty Ltd v Liverpool City Council

[2024] NSWLEC 1741

Land and Environment Court

New South Wales

Medium Neutral Citation:

Casula Family Care Pty Ltd v Liverpool City Council [2024] NSWLEC 1741

Hearing dates:

Conciliation conference 11 November 2024

Date of orders:

19 November 2024

Decision date:

19 November 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No DA-1207/2021 for demolition of existing structures, consolidation of lots, centre-based childcare, medical centre and car parking at 624-634 Hume Highway, Casula, subject to the conditions of consent at Attachment A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Liverpool Local Environmental Plan 2008, cll 2.3, 2.7, 4.3, 4.4, 7.31

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

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, Pt 3

State Environmental Planning Policy (Industry and Employment) 2021 ss 3.1, 3.3, 3.6, Sch 5

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.60, 2.119, Sch 9 s 1

Category:

Principal judgment

Parties:

Casula Family Care Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
A Jucha (Respondent)

Solicitors:
Conomos Legal (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2023/451536

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA-1207/2021 for the demolition of existing structures, site consolidation, construction of a centre based child care facility, medical centre, parking, signage and associated works (DA) at 624-634 Hume Highway, Casula (site).

2. The proceedings were set down for a hearing on 11-12 November 2024. Following amendments to the DA, joint conferencing of the experts, amended/further information and the agreed conditions of consent, the parties advised that the contested issues had been resolved. The parties therefore requested that the proceedings be adjourned and listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. The Court granted the request and arranged a conciliation conference between the parties, which was held on 11 November 2024. I presided over the conciliation conference.

4. The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-1207/2021 in accordance with the documents listed below (amended DA):

1. Amended Architectural Plans, prepared by Nuovo Design Studio, dates and revisions in the table below;

Plan	Job / Dwg No.	Date	Revision	Architect / Author
Cover Sheet	PP-706 / A01	14/10/2024	E	Nuovo Design Studio
Site Plan	PP-706 / A02	14/10/2024	E	Nuovo Design Studio
Demolition Plan	PP-706 / A03	14/10/2024	E	Nuovo Design Studio
Basement 2 Floor Plan	PP-706 / A100	14/10/2024	E	Nuovo Design Studio
Basement 1 Floor Plan	PP-706 / A101	14/10/2024	E	Nuovo Design Studio
Ground Floor Plan	PP-706 / A102	14/10/2024	E	Nuovo Design Studio
First Floor Plan	PP-706 / A103	14/10/2024	E	Nuovo Design Studio
Roof Plan	PP-706 / A104	14/10/2024	E	Nuovo Design Studio
Elevations 01 & 02 (North & East)	PP-706 / A200	14/10/2024	E	Nuovo Design Studio
Elevations 03, 04 & 05 (Internal South, South & West)	PP-706 / A201	14/10/2024	E	Nuovo Design Studio
Elevations 06 & 07 (Internal West & Internal East)	PP-706 / A202	14/10/2024	E	Nuovo Design Studio
Sections AA & BB	PP-706 / A300	14/10/2024	E	Nuovo Design Studio
Section CC	PP-706 / A301	14/10/2024	E	Nuovo Design Studio
Driveway Section DD & EE	PP-706 / A302	14/10/2024	E	Nuovo Design Studio
Kitchen Details (Floor Plan)	PP-706 / A400	14/10/2024	E	Nuovo Design Studio
Kitchen Details (Elevations 01, 02, 03 & 04)	PP-706 / A401	14/10/2024	E	Nuovo Design Studio
Kitchen Finish Schedule	PP-706 / A402	14/10/2024	E	Nuovo Design Studio
Cleaners Room and Bottle Prep. Details (Floor Plans & Internal Elevations)	PP-706 / A403	14/10/2024	E	Nuovo Design Studio
Laundry Details (Floor Plan & Internal Elevations)	PP-706 / A404	14/10/2024	E	Nuovo Design Studio
Disabled Toilet Details (Floor Plans & Sections)	PP-706 / A405	14/10/2024	E	Nuovo Design Studio
Details (Ceiling / Cove / Floor Waste / Wall & Floor)	PP-706 / A406	14/10/2024	E	Nuovo Design Studio
Floor Detail	PP-706 / A407	14/10/2024	E	Nuovo Design Studio
Floor Detail	PP-706 / A408	14/10/2024	E	Nuovo Design Studio
Fit-out Plan	PP-706 / A409	14/10/2024	E	Nuovo Design Studio
Gross Floor Area Diagram	PP-706 / A410	14/10/2024	E	Nuovo Design Studio
Indoor/Outdoor & Play/Storage Area Detail	PP-706 / A411	14/10/2024	E	Nuovo Design Studio
Signage Detail	PP-706 / A412	14/10/2024	E	Nuovo Design Studio
Evacuation Basement 02	PP-706 / A413	14/10/2024	E	Nuovo Design Studio
Evacuation Basement 01	PP-706 / A414	14/10/2024	E	Nuovo Design Studio
Evacuation Ground Floor	PP-706 / A415	14/10/2024	E	Nuovo Design Studio
Evacuation First Floor	PP-706 / A416	14/10/2024	E	Nuovo Design Studio
Shadow Diagram (9AM-12PM June 21)	PP-706 / A417	14/10/2024	E	Nuovo Design Studio
Shadow Diagram (1PM-3PM June 21)	PP-706 / A418	14/10/2024	E	Nuovo Design Studio
Elevations Shadow (Play Area - 9AM-12PM June 21)	PP-706 / A419	14/10/2024	E	Nuovo Design Studio
Elevations Shadow (Play Area – 1PM-3PM June 21)	PP-706 / A420	14/10/2024	E	Nuovo Design Studio
Perspective Shadow (North - 9AM-12PM June 21)	PP-706 / A421	14/10/2024	E	Nuovo Design Studio
Perspective Shadow (North - 1PM-3PM June 21)	PP-706 / A422	14/10/2024	E	Nuovo Design Studio
Perspective Shadow West - 9AM-12PM June 21)	PP-706 / A423	14/10/2024	E	Nuovo Design Studio
Perspective Shadow (West -1PM-3PM June 21)	PP-706 / A424	14/10/2024	E	Nuovo Design Studio
RCP Basement 02	PP-706 / A500	14/10/2024	E	Nuovo Design Studio
RCP Basement 01	PP-706 / A501	14/10/2024	E	Nuovo Design Studio
RCP Ground Floor	PP-706 / A502	14/10/2024	E	Nuovo Design Studio
RCP First Floor	PP-706 / A503	14/10/2024	E	Nuovo Design Studio

2. Landscape Plans (Revision B), prepared by Zenith Landscape Designs, dated 10 October 2024.

3. Arboricultural Addendum Letter, prepared by Axion Arbor, dated 17 October 2024.

4. Architectural Plans of Adjoining Land, prepared by Drew Dickson Architects, dated 20 July 2018.

5. Detailed Site Investigation, prepared by Australian Geoenviro, dated 21 August 2023.

6. Emergency Management Letter (Confirming Support Relating to Additional Basement), prepared by First 5 Minutes, dated 8 October 2024.

7. Emergency Management Manual, prepared by First 5 Minutes, dated 7 June 2024.

8. Remediation Action Plan, prepared by Australian Geoenviro, dated 13 May 2024.

9. Stormwater Plans and Details, prepared by C & S Engineering Services, dated 15 May 2024.

10. Waste Classification Report, prepared by Australian Geoenviro, dated 17 October 2024.

5. As part of the conciliation conference process the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent under s 4.16 of the EPA Act.

6. 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. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

Jurisdictional Prerequisites

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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 LEC Act, as set out below.

8. The DA was lodged to the Respondent on 25 October 2021. I am satisfied that owners consent accompanied the DA as provided in the Class 1 Application. The Respondent notified the DA between 15 March 2022 to 30 March 2022 and again on 27 August 2024 to 12 September 2024. Six submissions were received.

9. At the on site viewing, the Court and parties benefitted from hearing the concerns from one objector in relation to increased traffic, garbage truck noise and access, and preferred site access from the Hume Highway instead of the residential streets.

10. As the parties have entered into an agreement, the Court’s role is limited in considering the issues raised. I accept the advice of the parties that the concerns raised on site and the written objections have been considered in the amended DA. Some of the key objections are addressed as follows. The parties advised of changes to the basement so that garbage collection occurs within the building’s basement, and that changes have been made to the built form to reduce impacts on adjoining residents. The parties advised that access from the Hume Highway would not be permitted by Transport for NSW (TfNSW), which I accept. I also note that the hours of operation in the agreed conditions of consent at conditions 145 and 146 (found in Annexure A of this judgment). The child care centre hours of operation are Monday to Friday 7am-6pm. The medical centre is Monday to Sunday 7am-8pm. Both premises will not operate on public holidays.

Liverpool Local Environmental Plan 2008

11. The subject site is zoned R2 Low Density Residential pursuant to the Liverpool Local Environmental Plan 2008 (LLEP), where the proposed development for a centre based child care centre is permissible with consent. The proposed medical centre is prohibited development under the LLEP but permissible pursuant to s 2.60 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) as a type of health services facility.

12. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 demolition applies, which is sought in the amended DA.

13. Clause 4.3 height of buildings applies which allows a maximum height of 8.5m. The amended Architectural Plans prepared by Nouvo Design Studio dated 14 October 2024 (architectural plans) show that the amended DA is below the height limit.

14. Clause 4.4 floor space ratio (FSR) applies and allows a maximum of 0.5:1. The amended DA proposes a FSR of 0.46:1 as shown on the architectural plans (dwg 410).

15. Clause 7.31 earthworks applies as the amended DA proposes earthworks. On the basis of the jurisdictional statement at paragraphs 40-44, the architectural plans, the Statement of Environmental Effects prepared by HDC Planning dated 19 January 2023 and 19 July 2021 (SEE’s), waste management plan and civil engineering plans and conditions of consent at Annexure A, I accept the parties’ agreement that the provisions have been considered.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC)

16. The amended DA does not seek any tree removal that would engage Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC).

17. The parties advise that Ch 6 in relation to water catchments applies as the site is located within the Georges River Catchment. I accept that the parties are satisfied that the amended DA meets the provisions as set out at paragraph 16 of the jurisdictional statement and demonstrated by the Stormwater Plans and Details prepared by C&S Engineering Services dated 15 May 2024, in that adequate stormwater management and erosion and sediment controls are proposed.

State Environmental Planning Policy (Industry and Employment) 2021

18. Chapter 3, ss 3.1, 3.3 and 3.6 (and Sch 5) of State Environmental Planning Policy (Industry and Employment) 2021 (SEPP Industry) contains provisions in relation to signage. The amended DA includes business identification signage along the Hume Highway. With consideration of the jurisdiction statement at paragraphs 18-21, amended architectural plans and SEE’s I accept the parties’ agreement that the signage is contextually appropriate and the provisions relating to the proposed business identification signage have been satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site in relation to contamination. The amended DA is accompanied by a Detailed Site Investigation Report (dated August 2023), Waste Classification Report (dated October 2024) and Remediation Action Plan (RAP) (dated May 2024) all prepared by Australian GeoEnviro Pty Ltd in relation to uses for a child care centre and medical centre.

20. The RAP concludes that implementation of the proposed remediation strategies will render the site suitable for the proposed uses. The recommendations have been included in the conditions of consent at Annexure A (conditions 71, 74 and 119). Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

21. Section 2.119 applies as the site has frontage to a classified road. The amended DA does not propose any vehicular access from the Hume Highway, consistent with the SEPP TI’s requirement to provide access from a road other than a classified road. The parties advise that the DA has been considered by TfNSW who have not raised any issues. The amended DA is also accompanied by a Noise Assessment Report prepared by Renzo Tonin & Associated dated 7 August 2024 which contains recommendations in relation to acoustic measures to protect uses of the child care centre. I accept the parties’ agreement that the amended DA has adequately considered the impacts on the classified road and conversely, the impacts from the classified road on the proposed sensitive use.

State Environmental Planning Policy (Educational Establishments and Child CareFacilities) 2017

22. Due to the lodgement date of the DA, Ch 3 educational establishments and childcare facilities of SEPP TI does not apply pursuant to the savings provisions within Sch 9 s 1. Instead, the now repealed State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP child care) applies. However, subss (2) of Sch 9 s 1 requires that the National Quality Framework Assessment Checklist in Part 4 of the Child Care Planning Guidelines must be considered.

23. On the basis of the SEE’s and architectural plans, I accept that Part 3 of SEPP child care, the Child Care Planning Guidelines and National Quality Framework Checklist have been considered and addressed in the design of the amended DA.

Conclusion

24. 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.

25. 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.

26. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

27. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA‑1207/2021 for demolition of existing structures, consolidation of lots, centre-based childcare, medical centre and car parking at 624-634 Hume Highway, Casula, subject to the conditions of consent at Attachment A.

S Porter

Commissioner of the Court

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Annexure A

Decision last updated: 19 November 2024