Childcare Developer Pty Ltd v Fairfield City Council

[2023] NSWLEC 1630

Land and Environment Court

New South Wales

Medium Neutral Citation:

Childcare Developer Pty Ltd v Fairfield City Council [2023] NSWLEC 1630

Hearing dates:

Conciliation conference on 16 October 2023

Date of orders:

25 October 2023

Decision date:

25 October 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs in the sum of $3000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. 267.1/2022, as amended, for the demolition of existing structures, tree removal and construction of a 99 place child care centre over basement parking on land legally described as Lot 47 Section 9 in DP1157, known as 23 Gilbert Street, Cabramatta, subject to the conditions of consent in Annexure A.

Catchwords:

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

Legislation Cited:

Education and Care Services National Regulations 2011
Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15
Environmental Planning and Assessment Regulation 2021, s 38
Fairfield Local Environmental Plan 2013, cll 2.3, 4.3, 4.4, 6.2, 6.9
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 11
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.26

Texts Cited:

Department of Planning, Industry and Environment, Child Care Planning Guideline, 2017

Category:

Principal judgment

Parties:

Childcare Developer Pty Ltd (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
Dr Smith (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/335989

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 deemed refusal of development application No. DA/267.1/2022 for the demolition of existing structures, tree removal and the construction of a two-storey centre-based child care facility for 100 children over 2 levels of basement parking containing 29 spaces and associated landscaping works (development application) at 23 Gilbert Street, Cabramatta, legally described as Lot 47 Section 9 DP 1157.

2. On 5 July 2023, the Court granted leave for the development application to be amended. The Respondent filed their Amended Statement of Facts and Contentions (ASOFAC) on 9 August 2023.

3. The proceedings were set down for a hearing on 16 October 2023. After the on site viewing, the parties agreed that following the joint conferencing of the experts, further changes to the plans and other documentation and agreed conditions of consent, 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).

4. The Court granted the request and arranged a conciliation conference between the parties, which was held on 16 October 2023. I have presided over the conciliation conference.

5. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No DA/267.1/2022 in accordance with the documents listed at [26] (amended application). The key amendments include:

• Reduction of child care spaces down to 99 and changes to the age groupings;

• Retention of Tree 8;

• Outdoor play area calculations clarified;

• Various internal amendments to the basement and floor levels;

• Changes to various windows to minimise privacy impacts; and

• Further information relating to landscaping, stormwater, the Plan of Management, acoustic impacts and traffic and parking.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended application and granting development consent to the amended application subject to conditions of consent.

7. 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.

8. 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.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

10. 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.

11. I am satisfied that owners consent accompanied the development application.

Fairfield Local Environmental Plan 2013

12. The subject site is zoned R2 Low Density Residential pursuant to the Fairfield Local Environmental Plan 2013 (FLEP), where the proposed development is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

13. Clause 4.3 Height of buildings of the FLEP applies, which allows a maximum height of 9m. The parties agree and I am satisfied on the basis of the Statement of Environmental Effects prepared by Think Planners (SEE) dated 11 July 2022 and the Architectural Plans prepared by Building Design and Technology Pty Ltd listed at condition 1 of Annexure A, that the amended application is less than 9m in height (Dwg DA1.05).

14. Clause 4.4 Floor Space Ratio of the FLEP applies, which allows a maximum FSR of 0.45:1. The parties agree, and I am satisfied on the basis of the amended Statement of Facts and Contentions filed to the Court 9 August 2023 and the Architectural Plans prepared by Building Design and Technology Pty Ltd listed at condition 1 of Annexure A that the amended development application complies with the FSR, at 0.4:1 (Dwg DA1.02).

15. Clause 6.2 Earthworks of the FLEP applies to the proposed development. I have considered the provisions of cl 6.2, the SEE, the stormwater engineering plans listed at condition 1 of Annexure A, stormwater easement and the conditions of consent. I consider that the requirements of cl 6.2 Earthworks have been met.

16. Clause 6.9 Essential Services of the FLEP applies to the proposed development. I have considered the provisions of cl 6.9, the affidavit of Kieu To dated 11 October 2023, the stormwater engineering plans listed at condition 1 of Annexure A and the conditions of consent (including the deferred commencement condition for a drainage easement). I agree with the parties that the requirements of cl 6.9 have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

17. The former Ch 11 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), applies to the proposed development (pursuant to s 6.65 of the BC SEPP). The subject site is within the Georges River Catchment. I have considered the provisions of Pt 11.2 and accompanying information with the Class 1 appeal and amended application including the SEE, the Arboricultural Impact Assessment and Tree Management Plan dated 7 April 2022, stormwater engineering plans listed at condition 1 of Annexure A and the Hazardous Materials Survey prepared by K2 Consulting Group dated 10 May 2023. I accept the evidence of the parties that the requirements have been addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

18. Chapter 3 Educational establishments and child care facilities of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) applies to the proposed development.

19. The parties agree that the proposal complies with the indoor unencumbered space requirements and outdoor space requirements as required by s 3.22 of SEPP Transport and Infrastructure and the requirements of the Education and Care Services National Regulations 2011. I have considered the evidence within the SEE and architectural plans and consider the provisions have been addressed and concurrence is not required.

20. I have considered the applicable provisions of the Child Care Planning Guideline in accordance with s 3.23 of the SEPP Transport and Infrastructure, as set out in the SEE. The parties agree, and I accept, that the amended application meets the non-discretionary development standards within s 3.26 of SEPP Transport and Infrastructure and the Education and Care Services National Regulations.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The proposed development is accompanied by an SEE that stipulates that the subject site has a history of residential use. The amended application is accompanied by a Hazardous Materials Survey Report (HMS report) prepared by K2 Consulting Group dated 10 May 2023 which identifies asbestos and other materials on site. The HMS report makes recommendations which have been included in conditions of consent at Annexure A. Accordingly, the parties agree, and I am satisfied that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

22. The Respondent notified the development application for a period of fourteen days from 19 September 2022. Two submissions were received raising concerns such as the size of the development, traffic, car parking, noise, heat and stormwater management. The amended application was notified between 13 July 2023 to 28 July 2023 where no submissions were received. At the on site viewing, the Court was provided with a further submission from an objector who raised similar concerns. The submissions have been considered by the consent authority and the experts through the joint expert reports for traffic, noise and town planning that were filed to the Court.

Conclusion

23. 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.

24. 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.

25. 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.

26. The Court notes that the Respondent has agreed, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA/267.1/2022 to rely upon the following amended plans and documents:

Drawing No and Revision		Title	Date
1	Dwg No. A1.01 Revision G	Upper Basement Plan & Driveway Section	6 September 2023
	Dwg No. A1.01A Revision G	Lower Basement Plan & Driveway Section	6 September 2023
	Dwg No. DA1.02 Revision J	Ground Floor/Site Plan	6 September 2023
	Dwg No. DA1.03 Revision J	First Floor Plan	6 September 2023
	Dwg No. DA1.05 Revision F	Elevations	6 September 2023
	Dwg No. A1.06 Revision B	Sections AA & BB	30 August 2023
	Dwg No. DA1.08 Revision D	9am-Noon June 21 Window Shadow Plans	8 September 2023
	Dwg No. DA1.08A Revision A	1PM-3PM June 21 Window Shadow Plans	8 September 2023
2	Drawing No: C1 Rev E	Landscape Plan Ground Floor	7 September 2023
	Drawing No: C2 Rev E	Landscape Details	7 September 2023
3	Drawing No: SW01 Rev K	Cover Sheet & Specifications	10 October 2023
	Drawing No: SW02 Rev K	Basement Level 2 Plan	10 October 2023
	Drawing No: SW03 Rev K	Site Stormwater Plan – Sheet 1	10 October 2023
	Drawing No: SW04 Revision K	Site Stormwater Plan – Sheet 2	10 October 2023
	Drawing No: SW05 Revision K	Site Stormwater Plan – Sheet 3	10 October 2023
	Drawing No: SW06 Revision K	Details - Sheet 1	10 October 2023
	Drawing No: SW07 Revision K	Details - Sheet 2	10 October 2023
4	Acoustic Assessment		19 September 2023
5	Plan of Management		13 September 2023
6	Traffic and Parking Plan and Traffic Response		11 October 2023

27. The Applicant filed the amended application and final s 34 agreement with the Court on 16 October 2023.

Orders:

28. The Court orders:

1. The Applicant is to pay the Respondent’s costs in the sum of $3000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. 267.1/2022, as amended, for the demolition of existing structures, tree removal and construction of a 99 place child care centre over basement parking on land legally described as Lot 47 Section 9 in DP1157, known as 23 Gilbert Street, Cabramatta, subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

Annexure A

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Decision last updated: 25 October 2023