Catholic Healthcare Limited v Penrith City Council

[2020] NSWLEC 1443

Land and Environment Court

New South Wales

Medium Neutral Citation:

Catholic Healthcare Limited v Penrith City Council [2020] NSWLEC 1443

Hearing dates:

Conciliation conference on 14 July 2020, 5 August 2020, 13 August 2020

Date of orders:

22 September 2020

Decision date:

22 September 2020

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

Refer to orders at [14]

Catchwords:

DEVELOPMENT APPLICATION – nursing home – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Rural Fires Act 1997

State Environmental Planning Policy No 55—Remediation of Land

Sydney Regional Environmental Plan No 30—St Marys

Water Management Act 2000

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)

Category:

Principal judgment

Parties:

Catholic Healthcare Limited (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
F Rourke (Solicitor) (Applicant)
A Avery (Solicitor) (Respondent)

Solicitors:
Allens (Applicant)
Penrith City Council (Respondent)

File Number(s):

2019/357887

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Penrith City Council (Council) of development application, DA19/0465 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 5,004m² vacant parcel of land at 55 Jordan Springs Boulevard, Jordan Springs, located on the corner of Jordan Springs Boulevard and Lakeside Parade, and identified as Lot 2 DP1248137 (the Site).

3. The DA, as originally lodged with the Council on 16 July 2019, sought consent for the construction of a five storey nursing home containing 144 beds, with undercroft parking for 33 cars, various facilities and amenities for residents and staff of the nursing home, and associated earthworks, drainage works and landscaping. The DA as originally submitted was based on architectural plans prepared by Young & Metcalf dated 30 April 2019 (Y&M Revision 1 plans).

4. The DA was advertised from 26 July 2019 to 9 August 2019 and no submissions were received. As the Site is identified as being bush fire prone on Council’s bush fire prone map, the DA was classified as integrated development requiring concurrence under the Rural Fires Act 1997. Accordingly, it was referred by Council to the New South Wales (NSW) Rural Fire Service (RFS) which issued a Bush Fire Safety Authority (concurrence) dated 21 August 2019 along with its General Terms of Approval. The DA was also forwarded to the NSW Natural Resources Access Regulator (NRAR) as Council’s mapping system indicates a watercourse traverses the Site. NRAR confirmed that the application is not integrated under the Water Management Act 2000 as the watercourse has been removed.

5. The applicant filed this Class 1 Application with the Court on 14 November 2019. On 21 January 2020 the Council filed with the Court its Statement of Facts and Contentions (SOFC), detailing six matters in contention.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 14 July, 5 August and 13 August 2020. Due to the Court’s COVID-19 Pandemic Arrangements Policy (March 2020) restrictions in place at the time, and as agreed between the parties, there was no site inspection as part of the conciliation conference.

7. In response to the SOFC and as a result of the discussions at the conciliation conference, amended plans prepared by Group GSA dated 25 July 2020 and noted as “Issue 5 Post s34 Conference Pack” (GSA Issue 5 plans) were submitted to Council and formed the basis of the s 34 agreement that was filed with the Court on 12 August 2020.

8. The changes between the Y&M Revision 1 plans and the GSA Issue 5 plans the subject of the s34 agreement are described on page “1.1 Key Points”, and illustrated on the “Previous v Proposed” set of plans at pages 2.1 to 2.6 of the GSA Issue 5 plans. The main changes can be summarised as:

1. The ground level has been significantly reconfigured, including rationalisation of the vehicular access and porte-cochère at Lakeside Parade, improved activation of the Jordan Springs Boulevard frontage, containment of the parking within the podium and additional landscaping, particularly along the western and southern boundaries.

2. The building footprint above the single level podium has been consolidated and reduced in area, and the building mass above the podium moved in an easterly direction closer to Lakeside Parade and providing greater separation from the single storey retirement village adjoining to the west.

3. Level 1 has been reconfigured to significantly increase the size of the landscaped roof garden, which is now divided into two spaces that are accessible to all residents, with smaller outdoor terraces off the living and sitting rooms.

4. Levels 2 to 4 have been reconfigured to consolidate the floor plates and the centralised servery, dining and living spaces, and to allow for improved external orientation and amenity of resident rooms.

9. The agreement reached between the parties involved the Court upholding the appeal and granting development consent, subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings. I have formed the opinion that the relevant jurisdictional matters identified have been satisfied for the reasons set out in [10] to [12] below.

10. Sydney Regional Environmental Plan No 30—St Marys (SREP 30) is the principal planning instrument applying to the Site. I am satisfied that the development is for the purposes of a “nursing home” which is a use permissible with consent in the “Urban” zone applying to the Site, and that the development meets the objectives of Urban Zone found at cl 40 (1) of SREP 30. The parties agree the DA does not require approval of any clause 4.6 variations to development standards.

11. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cl 7(1) and (2), requires consideration of any contamination and associated remediation. An Environmental Site Assessment Report (Environmental Assessment Report) prepared by Environmental Consulting Services dated 3 August 2018 was submitted by the applicant. The Environmental Assessment Report confirms that the Site is part of a larger property that was the subject of an earlier Environmental Audit and Contamination Management Plan, that has been implemented, and concludes that the Site is suitable for the proposed development. I am therefore satisfied that the relevant provisions of SEPP 55 have been met.

12. The RFS’s General Terms of Approval dated 21 August 2019 have been incorporated into the agreed conditions of consent (refer Part B Condition 7) forming Annexure A of the s34 agreement. The relevant provisions of the Rural Fires Act 1997 are therefore satisfied.

13. 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.

14. The Court orders:

1. The Applicant is granted leave to amend Development Application No. DA19/465 to rely upon the following amended plans and documents:

Prepared By	Drawing No. / Document Name	Revision	Dated
Group GSA	Jordan Springs Aged Care Architectural Drawings 1.1 – 4.11	5	25/07/2020
Site Image Landscape Architects	Landscape Design Report Drawings 002 - 0034	E	27/07/2020
Catholic Healthcare Limited	Loading Dock Management Plan	-	Not dated

2. In accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant must pay the Respondent's costs thrown away as a result of the amendment in the agreed sum of $12,500.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA19/465 for bulk earthworks and site preparation, construction of a five (5) storey nursing home with 144 beds, undercroft parking for 33 cars (including 2 accessible spaces), vehicular access via Lakeside Parade, nursing home amenities and facilities including multi-function space, activity room, physiotherapy room, consulting rooms and hairdressing salon, reception and lobby area, chapel, administration, manager and staff rooms, commercial kitchen and refrigeration and staff amenities, hours of operation being 24 hours per day, seven days per week, business identification signage and associated landscaping and drainage works at 55 Jordan Springs Boulevard, Jordan Springs subject to the conditions of consent annexed hereto and marked "A".

………………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (251204, pdf)

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Decision last updated: 22 September 2020