Corona Projects Pty Ltd v Strathfield Council

[2020] NSWLEC 1506

Land and Environment Court

New South Wales

Medium Neutral Citation:

Corona Projects Pty Ltd v Strathfield Council [2020] NSWLEC 1506

Hearing dates:

Conciliation conference on 19 August 2020

Date of orders:

22 October 2020

Decision date:

22 October 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

Refer to orders below at [8]

Catchwords:

APPEAL – modification application – increase numbers of child care facility – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Corona Projects Pty Ltd (Applicant)
Strathfield Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
C Drury (Solicitor) (Respondent)

Solicitors:
Storey & Gough (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2019/399466

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns an application to modify a development consent for the operation of a centre based child care facility at 81-86 Courallie Avenue, Homebush West. The modification application seeks to modify the consent to increase the maximum number of children at the centre from 60 to 89. Strathfield Council refused the modification application on 4 July 2019. These proceedings are an appeal against that decision, lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 19 August 2020. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was filed on 12 October 2020. The agreement is supported by a document titled “Joint submission of the parties on jurisdiction to make s.34 order”, which was provided by email on 13 October 2020.

4. The decision agreed upon is for leave for the applicant to amend the modification application, and for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. The amendments to the modification application include changes to increase the outdoor play area.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the elements of s 4.55(2) are met. In particular, I am satisfied that the development as modified by the present application is substantially the same development as the development for which consent was originally granted, for the reason that it modifies aspects of its operation by increasing the number of children, and makes some changes to certain areas of the development (including the additional outdoor play area and additional parking), without making any significant quantitative or qualitative changes to the development the subject of the development consent. Further, the application was notified in accordance with the applicable development control plan, and all submissions received have been considered.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) of the EPA Act.

8. The Court orders that:

1. The Applicant is granted leave to rely on an amended application by substituting the following plans as the plans relied upon for the purpose of the application:

1. Plan LEC 02 Revision A dated 19 March 2020 by Two Form Architecture;

2. Plan LEC 03 Revision A dated 19 March 2020 by Two Form Architecture;

3. Plan LEC 04 Revision A dated 19 March 2020 by Two Form Architecture;

4. Plan LEC 05 Revision A dated 19 March 2020 by Two Form Architecture;

5. Car parking and access plan dated July 2020 by Two Form Architecture;

6. Traffic and Parking Impacts Report by TEF Consulting dated 8 April 2019;

7. Operational Waste management Plan dated 22 March 2020 by Two Form Architecture;

8. Building Code of Australia Assessment dated 23 March 2020 by Building Control Group.

2. The appeal is upheld.

3. The application to amend DA 2017/030/01 (being an increase in capacity from 60 to 89 children at the Childcare Centre at Suite 1, Building 4, 81-86 Courallie Avenue, Homebush West) is approved subject to the conditions set out in Annexure “A”.

……………………..

J Gray

Commissioner of the Court

Annexure A (286153, pdf)

Plans (2732147, pdf)

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Decision last updated: 22 October 2020