Domitian (Aust) Pty Ltd v Camden Council

[2023] NSWLEC 1394

Land and Environment Court

New South Wales

Medium Neutral Citation:

Domitian (Aust) Pty Ltd v Camden Council [2023] NSWLEC 1394

Hearing dates:

Conciliation Conference 20 June 2023

Date of orders:

26 July 2023

Decision date:

26 July 2023

Jurisdiction:

Class 1

Before:

Porter AC

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in a sum to be agreed or assessed.

(2)   The Appeal is upheld.

(3)   Development Application No DA/2022/686/1, as amended, for the construction of a 130 place childcare centre over 2 levels with basement parking, earthworks, landscaping and associated works on land legally described at Lot 25 in DP1264505 and known as 120 Lodges Road, Elderslie, NSW, 2570, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

Catchwords:

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

Legislation Cited:

Camden Local Environmental Plan 2010, cll 2.3, 4.3, 5.10, 7.4

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 4.47, 8.7, 8.11

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

Rural Fires Act (1997), s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Part 9, s 9.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 3.22, 3.23, 3.26
State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

Texts Cited:

Camden Development Control Plan 2019

The Childcare Planning Guideline 2017

Category:

Principal judgment

Parties:

Domitian (Aust) Pty Ltd (Applicant)
Camden Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Podinic (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Bartier Perry (Respondent)

File Number(s):

2022/369278

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act), being an appeal against the deemed refusal of development application DA/2022/686/1 (development application) for the construction of a two storey 130 place centre-based childcare facility with basement parking and associated site works at 120-130 Lodges Road, Elderslie, legally described as Lot 25 in DP1264505 (the subject 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 20 June 2023. I have presided over the conciliation conference.

3. Further information and plans were filed with the Court on 21 June 2023. The Respondent, as the relevant consent authority, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No DA/2022/686/1 in accordance with the documents listed at [24] (amended development application).

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

5. 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.

6. 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

7. 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.

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

9. The subject site is zoned R1 General Residential zone pursuant to the Camden Local Environmental Plan 2010 (CLEP), where the proposed development is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To allow for educational, recreational, community and religious activities that support the wellbeing of the community.

• To minimise conflict between land uses within the zone and land uses within adjoining zones.

10. The development application is Integrated Development and was referred to the NSW Rural Fires Service (RFS) pursuant to s 4.46 of the EPA Act and s 100B of the Rural Fires Service Act 1997 (RFS 1997). Following the receipt of further information, the RFS has issued its approval through a Bushfire Safety Authority, dated 3 April 2023. The approval forms part of the conditions of consent and I am satisfied that s 4.47 of the EPA Act and s 100B of the RFS 1997 have been addressed.

11. Clause 4.3 Height of Buildings of the CLEP applies to the site. The parties agree and I am satisfied that the proposal is below the maximum permitted building height.

12. The subject site is located within the vicinity of a Heritage Item and accordingly, cl 5.10 Heritage of the CLEP applies. As set out in the Statement of Environmental Effects (SEE) prepared by Think Planners dated 7 July 2022, the parties agree, and I am satisfied, that the proposal satisfies the provisions of cl 5.10 of the CLEP given the distance between the subject site and heritage item.

13. Clause 7.4 Earthworks of the CLEP applies to the subject site. The parties agree, and I am satisfied, that the Geotechnical Investigation Report (Geotechnical Report) authored by Geotechnical Consultants Australia and dated 29 June 2022 addresses the requirements of the relevant soil and excavation provisions of the clause (noting that the amended development application did not amend the depth of excavation).

14. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 applies to the proposed development. The parties agree that the previous parent subdivision, DA/2018/1195/1 for the remediation of contaminated land, tree removal, staged subdivision to create 44 residential lots, 1 residue lot and associated site works, resulted in the creation of the subject site and included remediation of the subject site. Remediation was required to occur in accordance with the court filed Environmental Site Assessment authored by Envirotech dated 13 August 2018 and the Remediation Action Plan authored by Envirotech dated 24 September 2018. On this basis, the parties agree and I am satisfied that s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 has been addressed.

15. As the development application was lodged 18 July 2022, the now repealed Part 9 Hawkesbury-Nepean River of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. Part 9.2 contains a range of planning policies and recommended strategies that must be considered prior to the grant of consent in order to protect the environment of the Hawkesbury-Nepean River system. The parties agree that the proposal has adequately minimised its environmental impacts as required by Part 9, through appropriate water and soil management and the proposed landscaping as detailed in the SEE, Geotechical Report and Stormwater Management Plans prepared by Capital Engineering Consultants dated 1 June 2023. I have considered the provisions of Part 9 and accept the evidence of the parties that the requirements have been addressed.

16. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) applies to the proposed development. The proposed development was referred to Endeavour Energy who have provided conditions of consent. The proposal was also referred to Sydney Water who have provided conditions of consent, both of which have been included in Annexure A.

17. Chapter 3 Educational establishments and child care facilities of SEPP Transport and Infrastructure applies to the proposed development.

18. 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.

19. I have considered the applicable provisions of the Child Care Planning Guideline in accordance with s 3.23 of the SEPP Transport and Infrastructure. The parties agree, and I have considered, that the proposal complies with the non-discretionary development standards within s 3.26.

20. The Respondent notified the development application between 2 August 2022 and 16 August 2022, receiving six submissions objecting to the DA. The Respondent has considered the concerns expressed and is satisfied that the concerns have been addressed through the amended development application.

Conclusion

21. 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.

22. 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.

23. 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.

24. The Court notes that the Respondent has approved, as the relevant consent authority has agreed, under clause 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA/2022/686/1 to rely upon the following amended plans and documents:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No A000 Revision D	Cover Page	Janssen Designs	31 March 2023
	Drawing No A001 Revision D	Calculations and LEP Controls		31 March 2023
	Drawing No A002 Revision D	Site Context Plan		31 March 2023
	Drawing No A003 Revision D	Site Analysis Plan		31 March 2023
	Drawing No A004 Revision D	Site Plan		31 March 2023
	Drawing No A005 Revision D	Basement Plan		31 March 2023
	Drawing No A006 Revision D	Ground Floor Plan		31 March 2023
	Drawing No A007 Revision D	First Floor Plan		31 March 2023
	Drawing No A008 Revision D	Roof Plan		31 March 2023
	Drawing No A009 Revision E	South & East Elevations		18 May 2023
	Drawing No A010 Revision D	North & West Elevation		31 March 2023
	Drawing No A011 Revision E	Section		18 May 2023
	Drawing No A027 Revision D	Kitchen & Bottle Prep Area Details		18 May 2023
Landscape Plan
2	Drawing No. L-01 Issue C	Landscape Concept	Outside In Design Group	1 June 2023
	Drawing No. L-02 Issue C	Landscape Concept		1 June 2023
	Drawing No. L-03 Issue C	Lodges Road Streetscape Elevation AA		1 June 2023
	Drawing No. L-04 Issue C	Western Elevation BB + Northern Elevation CC		1 June 2023
Engineering Plans
3	Drawing No. SW001 Revision D	Stormwater Layout Plan Cover Sheet	Capital Engineering Consultants	1 June 2023
	Drawing No. SW002 Revision D	Stormwater Layout Plan Cover Sheet (Cont.)		1 June 2023
	Drawing No. SW003 Revision D	Stormwater Layout Plan Typical Drainage Notes & Details (1/2)		1 June 2023
	Drawing No. SW004 Revision D	Stormwater Layout Plan Typical Drainage Notes & Details (2/2)		1 June 2023
	Drawing No. SW010 Revision D	Stormwater Layout Plan Basement Floor Plan, Notes & Details		1 June 2023
	Drawing No. SW011 Revision D	Stormwater Layout Plan Basement Floor Plan, Notes & Details (Cont.)		1 June 2023
	Drawing No. SW020 Revision D	Stormwater Layout Plan Ground Floor Plan, Notes & Details (1/2)		1 June 2023
	Drawing No. SW021 Revision D	Stormwater Layout Plan Ground Floor Plan, Notes & Details (2/2)		1 June 2023
	Drawing No. ER001 Revision D	Stormwater Layout Plan Erosion & Sediment Control Plan, Notes & Details		1 June 2023
Reports / documents
3	Planting Compliance Letter		Outside In Design Group	7 June 2023
4	Environmental Noise Impact Assessment (Report No. 7539-1.1R Rev B)		Day Design Pty Ltd	31 May 2023
5	Operational Plan of Management		Janssen Designs	7 June 2023
6	Bushfire Report Addendum		Bushfire Planning & Design	23 February 2023
7	Hobart FX-Profi Dishwasher Specification		Warewashing Solutions	1 January 2019

25. The Applicant filed the amended development application with the Court on 21 June 2023.

Orders:

26. The Court orders:

27. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, in a sum to be agreed or assessed.

28. The Appeal is upheld.

29. Development Application No DA/2022/686/1, as amended, for the construction of a 130 place childcare centre over 2 levels with basement parking, earthworks, landscaping and associated works on land legally described at Lot 25 in DP1264505 and known as 120 Lodges Road, Elderslie, NSW, 2570, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

S Porter

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 26 July 2023