Dalberg Pty. Limited v Campbelltown City Council

Case •

[2024] NSWLEC 1314

•

11 June 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Dalberg Pty. Limited v Campbelltown City Council [2024] NSWLEC 1314
Hearing dates: Conciliation conference on 17 May 2024
Date of orders: 11 June 2024
Decision date: 11 June 2024
Jurisdiction:Class 1
Before: Porter C
Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application No 1827/2023/DA-C (PAN-336010) pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $13,000 within 28 days.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No 1827/2023/DA-C (PAN-336010), for the demolition of existing structures and construction of a centre-based child care facility at 120 Waminda Avenue, Campbelltown (Lot 1 in Deposited Plan 233177), 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:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Campbelltown Local Environmental Plan 2015, cll 2.3, 2.7, 4.1C, 4.3, 4.4, 7.1, 7.4, 7.10

Education and Care Services National Regulations

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 4, 6, Sch 2, ss 6.6, 6.7, 6.9

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

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

Texts Cited:

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

Category:Principal judgment
Parties: Dalberg Pty. Limited ACN 057 495 324 (Applicant)
Campbelltown City Council (Respondent)
Representation:

Counsel:
M Jaku (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2023/240400
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 1827/2023/DA-C for the demolition of existing structures and construction of a centre based child care facility accommodating 108 children at 120 Waminda Avenue, Campbelltown and legally known as Lot 1 DP 233177 (DA).

  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 17 May 2024. I presided over the conciliation conference.

  3. 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 DA1827/2023/DA-C in accordance with the documents listed at [25] (amended DA).

  4. As part of the conciliation conference process, 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.

  5. 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.

  6. 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.

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

Jurisdictional Prerequisites

  1. 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.

  2. I am satisfied that owners consent accompanied the DA. The Respondent notified the development application between 19 June 2023 to 11 July 2023. No submissions were received.

Campbelltown Local Environmental Plan 2015

  1. The subject site is zoned R2 Low Density Residential pursuant to the Campbelltown Local Environmental Plan 2015 (‘CLEP’), where the proposed development is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 demolition applies, which is sought in the amended DA.

  2. Clause 4.1C in relation to minimum site area applies to the amended DA and requires a minimum of 800m2. The site has a site area of 1575.7m2 as shown on the amended architectural plans prepared by Janssen Designs (‘amended architectural plans’) and detail survey plan prepared by C&A Surveyors 7 March 2023.

  3. Clause 4.3 height of buildings of the CLEP applies, which allows a maximum height of 8.45m. The parties agree and I accept on the basis of the amended architectural plans that the amended application is less than 8.5m in height, at 8.45m.

  4. Clause 4.4 floor space ratio (‘FSR’) applies, which allows a maximum FSR of 0.55:1. As shown on the amended architectural plans, the amended DA is below the maximum, at 0.44:1.

  5. Clause 7.1 earthworks applies to the proposed development. I accept the parties’ agreement that adequate consideration has been given to the provisions on the basis of the amended architectural plans (cut and fill diagram A109), amended stormwater drawings prepared by Capital Engineering Consultants dated 18 March 2024 (‘amended SW plans’), Detailed Site Investigation prepared by Geotechnical Consultants Australia dated 11 April 2024 (‘DSI’), Remedial Action Plan prepared by Geotechnical Consultants Australia dated 11 April 2024 (‘RAP’), Statement of Environmental Effects prepared by Think Planners dated 17 May 2023 (‘SEE’) and conditions of consent at Annexure A.

  6. Clause 7.4 salinity applies to the site. With consideration of the agreed submissions of the parties and documents referred to at [14] I accept that the provisions have been satisfied.

  7. Clause 7.10 applies to the site. The parties agree and I accept with consideration of the SEE that adequate arrangements have been made for the required essential services.

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. 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 a DSI and RAP which make recommendations for remediation works and concludes that the site can be made suitable for the proposed use. The PSI and recommendations have been included in the 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.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  1. Pursuant to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (‘SEPP BC’) Ch 4 applies as Campbelltown City Council is listed in Sch 2 and an approved Koala Plan of Management (‘KPoM’) applies to the site. Two preferred Koala Food Trees are proposed for removal. Consistent with the KPoM, the parties agree, and I accept that the removal is not inconsistent with the requirements and that conditions of consent have been included for payment for replacement trees prior to the issue of a construction certificate.

  2. Chapter 6 applies to the site, which is located in the Georges River Catchment. In accordance with the amended SW plans, I accept the agreed submissions of the parties and am satisfied that ss 6.6, 6.7 and 6.9 of SEPP BC have been met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

  1. 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.

  2. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 of SEPP Transport and Infrastructure. Based on the SEE and agreed submissions, I have considered the provisions of ss 3.22, 3.23, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

Conclusion

  1. 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.

  2. 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.

  3. 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.

  4. The Court notes that the Respondent has approved, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No 1827/2023/DA-C to rely upon the following amended plans and documents:

  1. The following amended architectural plans prepared by Janssen Designs:

Drawing No.

Drawing Name

Date

A000, Issue E

Cover Page

8.4.2024

A001, Issue E

Calculations and LEP Controls

8.4.2024

A002, Issue E

Site Context Plan

8.4.2024

A003, Issue E

Demolition Plan

8.4.2024

A004, Issue E

Site Analysis Plan

8.4.2024

A005, Issue E

Basement Plan

8.4.2024

A006, Issue E

Ground Floor Plan

8.4.2024

A007, Issue E

First Floor Plan

8.4.2024

A008, Issue E

Roof Plan

8.4.2024

A009, Issue E

South (Streetscape) & East Elevations

8.4.2024

A010, Issue E

North & West Elevations

8.4.2024

A011, Issue E

Section

8.4.2024

A014, Issue E

Shadow Diagram – 9am 21st June

8.4.2024

A015, Issue E

Shadow Diagram – 12 noon 21st June

8.4.2024

A016, Issue E

Shadow Diagram – 3pm 21st June

8.4.2024

A017, Issue E

Covered Outdoor Area Diagram – Ground Floor

8.4.2024

A018, Issue E

Covered Outdoor Area Diagram – First Floor

8.4.2024

A019, Issue E

Cut and Fill Diagram

8.4.2024

A020, Issue E

Emergency Evacuation Plan – Ground Floor

8.4.2024

A021, Issue E

Emergency Evacuation Plan – First Floor

8.4.2024

A022, Issue E

Kitchen Detail Plan

8.4.2024

A023, Issue E

Colour and Finishes Schedule

8.4.2024

  1. Schedule of Amendments prepared by Janssen Designs dated 8 April 2024.

  2. The following amended landscape plans prepared by Outside In Design Group:

Drawing No.

Drawing Name

Date

01, Rev D

Landscape Concept

20-03-24

L - 02, Issue D

First Floor Plan + Planting Details

20-03-24

  1. The following amended stormwater plans prepared by Capital Engineering Consultants:

Drawing No.

Drawing Name

Date

SW001, Rev C

Cover Sheet

18/03/2024

SW010, Rev C

Basement Floor Plan, Notes & Details (1/2)

18/03/2024

SW011, Rev C

Basement Floor Plan, Notes & Details (2/2)

18/03/2024

SW020, Rev C

Ground Floor Plan, Notes & Details

18/03/2024

SW021, Rev C

On Site Detention Plan, Notes & Details

18/03/2024

SW030, Rev C

First Floor Plan, Notes & Details

18/03/2024

SW040, Rev C

Roof Plan, Notes & Details

18/03/2024

ER001, Rev C

Erosion & Sediment Control Plan, Notes & Details

18/03/2024

ER002, Rev C

Erosion & Sediment Control Plan, Notes & Details (Cont.)

18/03/2024

  1. Environmental Noise Impact Assessment prepared by Day Design Pty Ltd dated 18 December 2023.

  2. Detailed Site Investigation prepared by Geotechnical Consultants Australia dated 11 April 2024.

  3. Remedial Action Plan prepared by Geotechnical Consultants Australia dated 11 April 2024.

  4. Hazardous Materials Survey prepared by Geotechnical Consultants Australia dated 1 November 2023.

  5. Supplementary Traffic and Parking Impact Assessment prepared by McLaren Traffic Engineering dated 20 February 2024.

  6. Arboricultural Impact Assessment & Tree Protection Plan prepared by The Ents Tree Consultancy dated 15 March 2024.

  7. Operational Plan of Management prepared by Janssen Designs dated 18 March 2024.

  1. The Applicant filed the amended development application with the Court on 6 May 2024.

Orders

  1. The Court orders:

  1. The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application No 1827/2023/DA-C (PAN-336010) pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $13,000 within 28 days.

  2. The appeal is upheld.

  3. Development consent is granted to Development Application No 1827/2023/DA-C (PAN-336010), for the demolition of existing structures and construction of a centre-based child care facility at 120 Waminda Avenue, Campbelltown (Lot 1 in Deposited Plan 233177), subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

**********

Annexure A

Decision last updated: 11 June 2024

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

8