DJG Mileham Land Pty Limited v Hawkesbury City Council

[2024] NSWLEC 1524

Land and Environment Court

New South Wales

Medium Neutral Citation:

DJG Mileham Land Pty Limited v Hawkesbury City Council [2024] NSWLEC 1524

Hearing dates:

Conciliation conference on 23 August 2024

Date of orders:

28 August 2024

Decision date:

28 August 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $4,000 within 21 days of these orders being made.

(2)   The appeal is upheld.

(3)   Development Application No. DA0344/2023 for the demolition of existing structures, removal of trees, bulk earthworks, and Community Title subdivision resulting in 7 residential lots, 1 community lot containing a new road, and 1 residue lot containing a new 140 place childcare centre single storey with on-ground carpark accommodating 52 parking spaces and associated landscaping at the property known as 193A Mileham Street, South Windsor NSW 2756 is granted development consent subject to the conditions included at 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

Education and Care Services National Regulations,

Environmental Planning and Assessment Regulation 2021, s 38

Hawkesbury Local Environmental Plan 2012, cll 2.3, 2.6, 2.7, 4.1, 4.1AA, 4.3, 6.2, 6.7

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 2.48, 3.22, 3.23, 3.25

Category:

Principal judgment

Parties:

DJG Mileham Land Pty Limited (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
M Draybi (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Centurion Lawyers (Applicant)
Marsdens (Respondent)

File Number(s):

2023/350208

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 refusal of development application DA0344/23 consent for the demolition of existing structures, removal of trees, earthworks, subdivision into 9 lots (8 for residential and 1 residual lot for the proposed child care centre), construction of a road and construction of a single storey 140 place childcare centre with on ground carparking accommodating 39 parking space at 193A Mileham Street, South Windsor NSW 2756 (Lot 1 DP 608959) (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 23 August 2024. I presided over the conciliation conference.

3. The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA0344/23 in accordance with the documents listed below (amended DA):

Drawing Reference No.	Drawing Description	Prepared by	Issue No.	Date
A0.00	General Notes	Creative Drafting Services	C	15/05/2024
A1.00	Site Plan & Notes	Creative Drafting Services	C	15/05/2024
A1.01	Ground Floor Layout	Creative Drafting Services	C	15/05/2024
A1.02	Roof Layout	Creative Drafting Services	C	15/05/2024
A1.03	Car Park and Playground Set-outs and Notes	Creative Drafting Services	C	15/05/2024
A1.04	Elevations 1-4 and Section 5	Creative Drafting Services	C	15/05/2024
A1.05	Coloured Scheme Elevations	Creative Drafting Services	C	15/05/2024
A1.06	Coloured unencumbered area layouts	Creative Drafting Services	C	15/05/2024
A1.07	Staff line of sight in External Playground Area	Creative Drafting Services	C	15/05/2024
A1.08	Site cut and fill plan	Creative Drafting Services	C	15/05/2024
A1.09	Kitchen set-out and elevations	Creative Drafting Services	C	15/05/2024
A1.10	Kitchen Sections	Creative Drafting Services	C	15/05/2024
A1.11	Disabled Toilet Set-out and elevations	Creative Drafting Services	C	15/05/2024
A1.12	Playroom 1 & 2 Toilet Area set-out and details	Creative Drafting Services	C	15/05/2024
A1.13	Playroom 3 & 4 Toilet area set-out and details	Creative Drafting Services	C	15/05/2024
A1.14	Playroom 5 & 6 Toilet Area set-out and details	Creative Drafting Services	C	15/05/2024
A1.15	Bottle prep and laundry set-outs and details	Creative Drafting Services	C	15/05/2024
A1.16	Staff toilet, staff kitchenette and/craft sink set-outs and details	Creative Drafting Services	C	15/05/2024
A1.17	Reception set-out	Creative Drafting Services	C	15/05/2024
F1.00	Emergency Evacuation Plan	Creative Drafting Services	C	15/05/2024
000	Cover Sheet	Telford Civil	E	19/07/2024
001	General Notes & Legend	Telford Civil	A	14/06/2023
002	Existing Services and Demolition Plan	Telford Civil	C	19/07/2024
100	Erosion and Sediment Control Plan	Telford Civil	E	19/07/2024
110	Erosion and Sediment Control Details	Telford Civil	D	09/07/2024
200	Bulk Earthworks Plan	Telford Civil	D	09/07/2024
300	Engineering Plan	Telford Civil	E	19/07/2024
400	Road 1 Longitudal Section and Typical Cross Section	Telford Civil	D	09/07/2024
600	Stormwater Catchment Plan	Telford Civil	B	09/07/2024
610	Stormwater Longitudal Sections	Telford Civil	C	19/07/2024
700	Swept Path, Line marking and Signages plan	Telford Civil	D	09/07/2024
DA-L101	Landscape General arrangement plan	Canvas	C	29/05/2024
DA-L102	Landscape + Play item layout plan	Canvas	C	29/05/2024
DA-L103	Landscape + Play item layout plan: Childcare centre South	Canvas	C	29/05/2024
DA-L104	Proposed planting & Sample play items	Canvas	C	29/05/2024
DA-L105	Landscape Plan: Subdivision	Canvas	C	29/05/2024
DA-L106	Sections	Canvas	C	29/05/2024

Document Title	Reference	Prepared By	Date
Site based Stormwater Management Plan	TEL22829	Telford Civil	19/07/2024
EMF Report	CA/24/226-1001	NG Child & Associates	24/05/2024
Data Gap Investigation	N09639	Neo Consulting	05/12/2023
Response to Council comments (Acoustic)	TN122-02F01	Renzo Tonin & Associates	30/10/2023

4. The changes to the proposed development from the amended DA are summarised as follows:

• Change to community title subdivision so that the proposed internal road is managed by the future community association

• Increase in car parking for the child care centre

• Reduction of one residential lot and increase in size of the other proposed lots

• Further technical information

5. 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 DA and granting development consent to the amended application subject to conditions of consent.

6. 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.

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.

8. 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

9. 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.

10. I am satisfied that owners consent accompanied the DA. The Respondent notified the DA between 23 October 2023 and 6 November 2023. No submissions were received.

Hawkesbury Local Environmental Plan 2012

11. The subject site is zoned R2 Low Density Residential pursuant to the Hawkesbury Local Environmental Plan 2012 (HLEP), where the proposed development as a centre based child care facility is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.6 permits subdivision with development consent. Clause 2.7 permits demolition with development consent.

12. Clauses 4.1 and 4.1AA require a minimum lot size of 450m² for community title subdivision. As demonstrated on the Engineering Plans prepared by Telford Civil dated 19 July 2024 (Engineering Plans) drawing no. 300, the proposed lots are over 450m².

13. Clause 4.3 height of buildings applies which allows a maximum height of 10m. The Architectural Plans prepared by Creative Drafting Services (Architectural Plans) show that the amended DA is below the height limit (drawing A1.04).

14. Clause 6.2 Earthworks applies to the site. I accept the parties’ agreement that they have considered cl 6.2(3) as set out at par 12 of the jurisdictional statement and supported by the Engineering Plans and Site Based Stormwater Management Plan prepared by Telford Consulting Pty Ltd dated July 2024 (Stormwater Report).

15. Clause 6.7 essential services applies. I accept the parties’ agreement that the site is currently serviced by water and sewer, the proposal provides suitable road access and that stormwater drainage through Onsite Detention and an existing easement will be available when required.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. The amended DA seeks tree removal as permitted by Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). I accept the parties agreement that the tree removal is acceptable as supported by the Arboricultural Impact Assessment and Tree Management Plan dated 27 April 2023 prepared by Tree Survey Pty Ltd.

17. The parties advise that Ch 6 in relation to water catchments applies. I accept that the parties are satisfied that the amended DA meets the provisions as set out at pars 21-22 of the jurisdictional statement, in that adequate stormwater management and erosion and sediment controls are proposed.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The amended DA is accompanied by a Preliminary Site Investigation Report dated March 2023 prepared by Martens & Associates Pty Ltd (PSI), Detailed Site Investigation Report dated August 2023 prepared by Martens & Associates Pty Ltd (DSI), and the Data Gap Investigation dated 5 December 2023 prepared by Neo Consulting (DGI). These reports find that the site can be made suitable subject to recommendations. The 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 RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

19. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies as site contains an easement for 33,000 volt high voltage overheard power lines. The relevant authority, Endeavour Energy, has been consulted and appropriate conditions of consent have been included at Annexure A.

20. Chapter 3 Educational establishments and childcare facilities of SEPP TI applies to the proposed development.

21. 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 TI. Section 3.25 applies a maximum floor space ratio of 0.5:1 in R2 zones (as the HLEP does not prescribe an FSR). Drawing no. A1.00 of the Architectural Plans shows the FSR as below 0.5:1, at 0.22:1.

22. Based on the Statement of Environmental Effects prepared by Think Planners dated 14 June 2023 and agreed submissions from the parties, 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

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.

Orders

26. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $4,000 within 21 days of these orders being made.

2. The appeal is upheld.

3. Development Application No. DA0344/2023 for the demolition of existing structures, removal of trees, bulk earthworks, and Community Title subdivision resulting in 7 residential lots, 1 community lot containing a new road, and 1 residue lot containing a new 140 place childcare centre single storey with on-ground carpark accommodating 52 parking spaces and associated landscaping at the property known as 193A Mileham Street, South Windsor NSW 2756 is granted development consent subject to the conditions included at Annexure A.

S Porter

Commissioner of the Court

350208.23 Annexure A

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Decision last updated: 28 August 2024