CVK Investments Pty Ltd v Woollahra Municipal Council

[2020] NSWLEC 1575

Land and Environment Court

New South Wales

Medium Neutral Citation:

CVK Investments Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1575

Hearing dates:

Conciliation conference on 17 November 2020

Date of orders:

20 November 2020

Decision date:

20 November 2020

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

Refer to orders below at [14]

Catchwords:

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

Legislation Cited:

Education and Care Services National Regulations

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy No 55 – Remediation of Land

Statement Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

Statement Environmental Planning Policy No 71 – Coastal Protection

Woollahra Local Environmental Plan 2014

Texts Cited:

New South Wales Department of Planning and Environment, Child Care Planning Guideline, (August 2017)

Category:

Principal judgment

Parties:

CVK Investments Pty Ltd ACN 116 858 247 (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
D Le Breton (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2019/193341

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 being an appeal against the actual refusal by Woollahra Local Planning Panel of Development Application No. DA 126/2017 for the demolition of the existing building and construction of a child care centre for 52 children (the Proposed Development) on Lot 1 in Deposited Plan 741378, known as 16 Manning Road, Double Bay (the Site).

2. After the commencement of the hearing the Parties’ sought an adjournment and the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17 November 2020. I have presided over the conciliation conference.

3. 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 granting leave to rely on amended plans and documents, the Court upholding the appeal, costs and granting development consent to the development application subject to conditions.

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

5. 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 to be:

1. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) and the consideration of whether the Site is contaminated and requires remediation prior to the proposed use as a child care centre;

2. Statement Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Childcare SEPP) and the benefit of the savings provision.

6. Statement Environmental Planning Policy No 71 – Coastal Protection (Coastal Protection SEPP) and whether the Proposed Development will not have any significant adverse environmental impact upon the harbour coastal locality.

7. The parties explained how the jurisdictional prerequisites have been satisfied.

8. SEPP 55 is satisfied because the recommendations of an Acid Sulfate Soil Assessment, Preliminary Contamination Screening and Acid Sulfate Soil Management Plan, prepared by Environmental Investigation Services dated 1 March 2017, have been incorporated into the conditions of consent. I have reviewed the consent conditions and for the purposes of cl 7 of SEPP 55, I note that the Site has been identified as possibly requiring remediation to be made suitable for the purpose for which the development is proposed to be carried out, I am satisfied that the land will be remediated before the land is used for the purpose of a child care centre.

9. The Childcare SEPP was gazetted on 1 September 2017 being after the Applicant lodged the development application for the Proposed Development with the Respondent. The parties agree that the Proposed Development benefits from the savings provision in Schedule 5 of the Childcare SEPP. I am satisfied that the Proposed Development satisfies the regulatory requirements and the National Quality Framework Assessment Checklist set out in Part 4 of the Child Care Planning Guideline because I have reviewed the Joint Expert Report prepared by Linda Campbell, Child Care Expert for the Applicant, and Wendy Shepherd (Early Childhood Education and Care Expert for the Respondent, (Childcare Experts) dated 19 October 2020 and filed on 26 October 2020 and I accept that the recommendations of the Childcare Experts have been addressed and incorporated into the Proposed Development.

10. The parties agree that the Proposed Development will not have any significant adverse environmental impact upon the harbour coastal locality and is satisfactory to the extent that the Coastal Protection SEPP may apply. I accept and adopt this reason.

11. Finally, I have considered the submissions made in accordance with the EPA Act and the Environmental Planning and Assessment Regulation 2000. I am satisfied that the concerns raised in the submissions have been appropriately taken into account and addressed within the Proposed Development.

12. 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.

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 that:

1. Leave is granted to the Application to rely on the following amended plans and documents set out in Condition A.3 of Annexure A:

1. Architectural Plans prepared by Liskowski Architects:

1. Architectural Plans prepared by Liskowski Architects:

1. DA_02 W, Ground & Carpark Floor dated 3 November 2020;

2. DA_03 U, First Floor & Second Floor dated 10 November 2020;

3. DA_04 U, Sections dated 10 November 2020;

4. DA_05 Q, Elevations dated 10 November 2020.

2. Landscape Plans prepared by Greenscape Landscape Architecture + Design:

1. DA_01 Issue F dated 13 October 2020; and

2. DA_02 Issue H dated 11 November 2020.

3. Updated Operational Management Plan dated 11 November 2020.

4. Addendum to Acoustic Report prepared by Day Design Pty Ltd, dated 10 November 2020.

2. The Applicant is to pay the respondent its costs thrown away as a result of the amendment referred to in 2(a) above pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA 126/2017 for the demolition of the existing building and construction of a child care centre for 52 children on Lot 1 in Deposited Plan 741378, known as 16 Manning Road, Double Bay, subject to the conditions in Annexure A.

…………………………………

E Espinosa

Commissioner of the Court

Annexure A (760276, pdf)

Plans (6844879, pdf)

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Decision last updated: 20 November 2020