Charbine v Canterbury-Bankstown Council

[2023] NSWLEC 1767

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Charbine v Canterbury-Bankstown Council [2023] NSWLEC 1767

Hearing dates:

Conciliation conference on 13 September and 25 October 2023

Date of orders:

19 December 2023

Decision date:

19 December 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) The applicant is directed to file the amended development application the subject of Order (4) below within 7 days of the date of this order.

(2) Upon the filing of the amended development application in accordance with Order (1) above, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, as agreed in the sum of $3,000.

(3) The appeal is upheld.

(4) Development consent is granted to development application No DA-539/2023 (as amended) for the demolition of existing structures and construction of a 2 storey centre based child care facility for 76 children over a basement on Lot 1 in Deposited Plan 564985, known as 113 Rex Road, Georges Hall, New South Wales, 2198 subject to the conditions of consent included in Amended Annexure A.

Catchwords:

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

Legislation Cited:

Bankstown Local Environmental Plan 2015, cll 2.2, 2.3, 2.7, 4.3, 4.4, 6.1, 6.2, 6.4, 6.8

Canterbury Bankstown Local Environmental Plan 2023, cl 1.8A

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.46, 8.7

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Regulation 2021, s 38

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, s 3.26

Texts Cited:

Bankstown Development Control Plan 2015

Canterbury Bankstown Community Participation Plan October 2022

Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

Category:

Principal judgment

Parties:

Hadi Charbine (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2023/229369

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA-539/2023 (the DA) for the demolition of existing structures and construction of a two storey centre based child care facility with 76 children over a basement on Lot 1 in Deposited Plan 564985, known as 113 Rex Road, Georges Hall, New South Wales, 2198 (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 September and 25 October 2023. I presided over the conciliation conferences, which began with an on-site view. There were 12 objectors to the proposed development, and a petition was lodged by residents of the adjoining property. Two objectors spoke at the on-site view.

3. The proposal as lodged and advertised provided for a 2 storey centre-based child care facility for 80 children over basement car parking.

4. The s 34 conciliation conference was adjourned to 25 October 2023 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. These amendments reduced the capacity of the proposed child care facility to 76 children in a 2 storey centre over basement car parking, and made a number of design changes to the proposed development.

5. At the conciliation conference on 25 October 2023 the parties indicated that they had generally reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties subject to a number of issues being addressed in further amending plans which were provided by the Applicant to the Respondent on 8 November 2023. The s 34 agreement including Annexure A was agreed on the basis of these further amended plans, and the signed agreement was filed with the Court on 21 November 2023.

6. This decision in the proceedings involves the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

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. 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.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows:

Environmental Planning and Assessment Act 1979

Owner’s consent

10. The DA was officially lodged on 31 May 2023 when application fees were paid. Owner’s Consent by the registered proprietor of the lot comprising the site accompanied the DA.

Canterbury Bankstown Community Participation Plan 2022 (Schedule 1, Division 2, 7(1))

11. The DA was notified between 14 June to 4 July 2023 in accordance with the requirements of the Canterbury Bankstown Community Participation Plan 2022. Twelve submissions and one petition were received in response to that notification.

Conditions

12. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Integrated Development

13. The proposed development is not integrated development within the meaning of s 4.46 of the EPA Act.

Evaluation under section 4.15

14. The parties agree that the amended DA can be approved taking into consideration the matters in s 4.15(b) to (e) of the EPA Act, and that all contentions raised in the Statement of Facts and Contentions (SOFAC) filed by the Respondent on 11 August 2023 have been satisfactorily addressed.

Bankstown Local Environmental Plan 2015

15. The Bankstown Local Environmental Plan 2015 (BLEP) is the relevant local environmental planning instrument that applies to the site, as the DA was lodged on 31 May 2023 prior to the gazettal of the Canterbury Bankstown Local Environmental Plan 2023 (CBLEP) on 23 June 2023. Clause 1.8A “Savings provision relating to development applications” applies to the development application, which must be evaluated based on the provisions contained in the BLEP. Under the BLEP provisions:

1. The site is zoned R2 Low Density Residential pursuant to cl 2.2 of the BLEP; and

1. Development for the purposes of a centre-based child care centre is permissible with consent in the R2 zone pursuant to cl 2.3 of the BLEP;

2. Development for the purpose of demolition is permissible with consent in the R2 zone pursuant to cl 2.7 of the BLEP;

3. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

2. Pursuant to cl 4.3 of the BLEP the maximum height of buildings on the site is 9 metres; and

1. The proposed building will have a maximum height of 8.930 metres, and thus complies with cl 4.3.

3. Pursuant to cl 4.4 of the BLEP a maximum floor space ratio (FSR) of 0.4:1 for non- residential uses applies to the site; and

1. The proposed development has an FSR of 0.4:1, and thus complies with cl 4.4.

4. The provisions of cl 6.1 of the BLEP concern acid sulphate soils; and

1. The parties advise the site is not on land within the Acid Sulphate Soils Map Area.

5. The provisions of cl 6.2 of the BLEP concern earthworks; and

1. The DA includes the carrying out of earthworks. The parties advise that a Geotechnical Investigation Report by Australian GeoEnviro Pty Limited has been provided to enable the consent authority to properly consider the matters in cl 6.2(3) of the BLEP.

6. The provisions of cl 6.4 of the BLEP concern biodiversity; and

1. The parties advise that the site is not identified as ‘biodiversity’ on the Terrestrial Biodiversity Map in the BLEP.

7. Clause 6.8 of the BLEP provides special provisions applying to centre-based child care facilities relating to vehicular access; and

1. These provisions are not relevant as the site is not located on a classified road or cul-de-sac, and the Applicant has identified that the carriageway between kerbs of Rex Road is greater than 10 metres;

2. Non-compliance with cl 6.8 of the BLEP has not been raised by the Respondent in the SOFAC

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation; and

1. There are no trees or vegetation on the site;

2. The parties advise that the proposed development is not likely to significantly affect threatened species within the meaning of s 7.2 of the Biodiversity Conservation Act 2016 and the DA is not required to be accompanied by a biodiversity development assessment report;

3. The proposed development includes canopy tree planting in the front and rear setback areas of the site in areas of deep soil.

17. Chapter 6 of the Biodiversity and Conservation SEPP relates to Water Catchments. The site is located within the Georges River Catchment; and

1. The parties advise that the proposed development satisfies the matters for consideration under s 6.6 of the Biodiversity and Conservation SEPP and will not cause water to enter any natural waterbody.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and 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

1. A Preliminary Site Investigation Report by GCA Pty Ltd dated 18 January 2023 was provided with the DA and the amended development application. This report concluded that the site is suitable for the proposed development and land use providing the recommendation in the report are undertaken.

2. The parties submit that Condition 42 of the agreed conditions requires that the recommendation of this report be complied with.

19. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

20. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW. Section 3.26 of the Transport and Infrastructure SEPP contains non-discretionary development standards for centre based child care centres; and

1. The parties advise that the amended proposed development does not breach the non-discretionary standards in cl 3.26 of the Transport and Infrastructure SEPP.

Education and Care Service National Regulations 2011 and

21. The Education and Care Services National Regulations provides extensive controls and requirements in addition to that of the BLEP and Bankstown Development Control Plan 2015 (DCP) and includes licensing and approvals processes, including documentation requirements; facilities and equipment requirements; staffing requirements; child number requirements; operational requirements; administrative requirements; and probity check requirements; and

1. The parties advise that Contentions 2(a) and 7(d) of the SOFAC have been satisfactorily dealt with in the amended development application.

Child Care Planning Guideline 2021

22. The Child Care Planning Guideline 2021 establishes the assessment framework to deliver consistent planning outcomes and design quality for centre based child care facilities in NSW; and

1. The parties advise that an assessment of the applicable provisions of the Guidelines was undertaken in the Statement of Environmental Effects lodged with the development application and the non compliances with this guideline set out in contentions 2(c), 2(f), 3(b), 4(a), 7(a), 7(i) and 7(l) in the SOFAC have been resolved in the amended application.

Bankstown Development Control Plan 2015

23. The DCP applies to the site; and

1. The parties advise that the respondent is satisfied that amended development satisfactorily addresses the provisions of the DCP that were raised in the SOFAC.

Conclusion

24. 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.

25. 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.

26. The Court notes:

1. That Canterbury Bankstown Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No DA-539/2023 made on 21 November 2023 to rely on the documents and plans specified below (the amended development application):

Condition

1.

Approved Plans and supporting documentation

Development must be carried out in accordance with the following approved plans (stamped by Council) except where the conditions of this consent expressly require otherwise.

Plan Number	Plan Name	Dated	Revision	Prepared By
Architectural Plans
06	Demolition Plan	8.11.23	F	Baini Design
07	Site Plan	8.11.23	F	Baini Design
09	Basement Floor Plan	8.11.23	F	Baini Design
11	Ground Floor Plan	8.11.23	F	Baini Design
13	First Floor Plan	8.11.23	F	Baini Design
14	Roof Plan	8.11.23	F	Baini Design
15	Elevations	8.11.23	F	Baini Design
16	Elevation, Section	8.11.23	F	Baini Design
17	Driveway Sections	8.11.23	F	Baini Design
18	Callout Elevations	8.11.23	F	Baini Design
19	Kitchen & Laundry Details	8.11.23	F	Baini Design
20	Typical Nappy Change	8.11.23	F	Baini Design
21	Typical Bottle Prep Detail	8.11.23	F	Baini Design
22	Typical Craft Bench Detail	8.11.23	F	Baini Design
23	Schedule Of Finishes	8.11.23	F	Baini Design
31	Streetscape Elevation	8.11.23	F	Baini Design
35	Deep Soil & Landscape Plan	8.11.23	F	Baini Design
36	Fencing Detail – Ground Floor	8.11.23	F	Baini Design
37	Fencing Detail – First Floor	8.11.23	F	Baini Design
38	Fencing Sections	8.11.23	F	Baini Design
39	Section Sketch – Acoustic Fence	8.11.23	F	Baini Design
Landscape Plans
F715_LP_01	Landscape Plan – Ground Floor	4.10.23	D	CPS – Creative Planning Solutions Pty Ltd
F715_LP_02	Landscape Plan – First Floor	4.10.23	D	CPS – Creative Planning Solutions Pty Ltd
F715_LP_05	Details, Notes & Preliminary Specification	4.10.23	D	CPS – Creative Planning Solutions Pty Ltd
Stormwater Plans
SW001	Stormwater Layout Plan - Cover Sheet	5.10.23	D	Capital Engineering Consultants
SW010	Stormwater Layout Plan – Basement Level Plan, Notes & Details	5.10.23	D	Capital Engineering Consultants
SW020	Stormwater Layout Plan – Ground Floor Plan, Notes & Details	5.10.23	D	Capital Engineering Consultants
SW021	Stormwater Layout Plan – On Site Detention Plan, Notes & Details	5.10.23	D	Capital Engineering Consultants
SW022	Stormwater Layout Plan – Post Development Catchment Plan	5.10.23	D	Capital Engineering Consultants
ER001	Stormwater Layout Plan – Erosion & Sediment Control Plan, Notes & Details	5.10.23	D	Capital Engineering Consultants

The recommendations contained within the following supporting documentation are to form part of this determination notice except where the conditions of this consent expressly require otherwise.

a. Updated Parking & Traffic Impact Assessment, dated 27 September 2023, prepared by Stanbury Traffic Planning.

b. Amended Noise Impact Assessment, dated 5 October 2023, prepared by Day Design Pty Ltd.

c. Plan of Management, dated November 2023, Revision C, prepared by Pivotal Planning.

d. Arboricultural Impact Assessment, dated 3 May 2023, Revision A, prepared by Creative Planning Solutions Pty Ltd

e. Accessibility Compliance Report, dated 12 April 2023, Revision B, prepared by Access Link Consulting.

27. The Court orders:

1. The applicant is directed to file the amended development application the subject of Order (4) below within 7 days of the date of this order.

2. Upon the filing of the amended development application in accordance with Order (1) above, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, as agreed in the sum of $3,000.

3. The appeal is upheld.

4. Development consent is granted to development application No DA-539/2023 (as amended) for the demolition of existing structures and construction of a 2 storey centre based child care facility for 76 children over a basement on Lot 1 in Deposited Plan 564985, known as 113 Rex Road, Georges Hall, New South Wales, 2198 subject to the conditions of consent included in Amended Annexure A.

G Kullen

Acting Commissioner of the Court

Amended Annexure A (432027, pdf)

**********

Amendments

19 December 2023 - Annexure A attached.

05 January 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), a corrected version of the conditions of consent are uploaded as “Amended Annexure A”.

Decision last updated: 05 January 2024