Elias v Parramatta City Council

[2021] NSWLEC 1332

Land and Environment Court

New South Wales

Medium Neutral Citation:

Elias v Parramatta City Council [2021] NSWLEC 1332

Hearing dates:

Conciliation conference on 16 April, 3 and 17 May 2021

Date of orders:

08 June 2021

Decision date:

08 June 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

See Orders at [15]

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Education and Care Services National Regulations Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 77 and Schedule 1

Land and Environment Court Act 1979, s 34

Parramatta Local Environmental Plan 2011, ss 2.3, 2.6, 4.3, 4.4, 6.1

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 23, 25

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Texts Cited:

NSW Department of Planning and Environment, Childcare Planning Guideline 2017

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2020)

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

Chady Elias (First Applicant)
Antonio Khalil (Second Applicant)
Parramatta City Council (Respondent)

Representation:

Counsel:
S Hale (Solicitor) (Applicants)
I Woodward (Solicitor) (Respondent)

Solicitors:
Madison Marcus Law Firm (Applicants)
Parramatta City Council (Respondent)

File Number(s):

2020/306372

Publication restriction:

No

Judgment

1. COMMISSIONER: Chady Elias and Antonio Khalil (the Applicants) have appealed the refusal by Parramatta City Council (the Respondent) of their development application (DA/399/2020), made with owner’s consent, seeking consent for demolition of existing structures and construction of a two storey childcare centre with basement car parking (the Proposed Development) at 379 Kissing Point Road, Ermington (the Subject Site).

2. The Proposed Development includes demolition and earthworks, tree removal and landscaping works and construction of a childcare centre for 78 children, including basement car parking.

3. The Subject Site is zoned R2 Low Density Residential under the provisions of cl 2.3 of Parramatta Local Environmental Plan 2011 (PLEP). The Proposed Development is permissible with consent on the Subject Site.

4. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

5. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 16 April 2021 and subsequently on 3 May 2021, and I presided over the conciliation conference.

6. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site view was undertaken at the commencement of the conciliation conference. While no objector submissions were received during the site view, a view was undertaken from an adjoining property at the rear of the Subject Site that had been the subject of written submissions in response to notification of the Applicant’s development application.

7. 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 and granting consent to the Applicant’s development application, subject to conditions.

8. 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.

9. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), the Parties have confirmed, and I accept that:

1. the Applicant’s Statement of Environmental Effects prepared by Allan Caladine and dated June 2020 confirms that the Subject Site has only ever been used for residential purposes and has not been used for commercial or industrial uses;

2. the Subject Site is not listed on the Respondent’s records as being contaminated;

3. on this basis of its past use, the Subject Site is not contaminated land and it is suitable for its proposed use as a childcare centre.

2. in relation to provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), the Applicant has provided a BASIX Certificate (no 1102645S) to accompany the development application to satisfy the requirement in Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), and SEPP BASIX;

3. in relation to the provisions of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the Childcare SEPP), the Parties have confirmed, and I am satisfied, that:

1. the Proposed Development has been designed in accordance with the NSW Department of Planning and Environment’s Child Care Planning Guidelines, and the Education and Care Services National Regulations (2011), as confirmed within Table 4 of the Applicant’s Statement of Environmental Effects prepared by Allan Caladine and dated June 2020, in fulfilment of the provisions of cl 23 of the Childcare SEPP;

2. the Proposed Development complies with the non-discretionary development standards in cl 25 of the Childcare SEPP as documented within Table 4 of the Applicant’s Statement of Environmental Effects prepared by Allan Caladine and dated June 2020;

4. in relation to the provisions of PLEP, the Parties have confirmed, and I accept, that the Applicant’s development application (as amended) satisfies all applicable provisions of PLEP, and where required, this satisfaction is supported through the imposition of conditions of consent within Annexure A to this judgment. In particular, the Parties have confirmed, and I accept, that the following specific provisions of PLEP have been addressed by the Applicant’s Proposed Development (as amended):

1. in relation to cl 4.3 of PLEP, the Proposed Development complies with the height of buildings development standard of 9m applicable to the Subject Site;

2. in relation to the provisions of cl 4.4 of PLEP, the Proposed Development complies with the maximum floor space ratio (FSR) applicable to the Subject Site which is 0.5:1. The Proposed Development has a FSR of 0.41:1;

3. in relation to the provisions of cl 6.1 of PLEP concerning acid sulfate soils:

1. the Subject Site is identified as being located within land mapped as Class 5 acid sulfate soils land;

2. because the site is not located within 500m of works on adjacent class 1, 2, 3, or 4 acid sulfate soils land that is below 5m AHD and which would lower the water table below 1m AHD, an acid sulfate soils report is not required;

5. the Proposed Development has been assessed in relation to the provisions of the Parramatta Development Control Plan 2011 (PDCP) within the Applicant’s Statement of Environmental Effects prepared by Allan Caladine and dated June 2020 which concluded that:

1. either the Proposed Development is compliant with the provisions of PDCP; or

2. where numerical compliance with controls is not achieved, the Parties agree, and I accept, that the Proposed Development represents a reasonable alternative that achieves the objectives of the controls and merits flexibility in the application of the controls.

6. the Proposed Development has been notified consistent with the provisions of PDCP and cl 77 of the EP&A Regulation. The Parties advise, and I accept, that they have given consideration to the submissions made in response to notification of the Proposed Development in reaching agreement in this appeal.

10. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act.

11. Having considered the advice of the Parties, provided above at [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

12. I am further 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. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

15. The Court orders that:

1. The Applicant is granted leave to rely on the following amended plans and documents:

Drawing/ Plan No.	Issue	Plan Title	Author	Dated
DA00	D	Cover Sheet & Site Plan	JH Architects	26/4/21
DA100	D	Roof Plan	JH Architects	26/4/21
DA101.1	D	Pedestrian Path	JH Architects	26/4/21
DA101	D	Basement Plan	JH Architects	26/4/21
DA102	D	Ground Floor/Level 1 Plan	JH Architects	26/4/21
DA103	D	Waste Management	JH Architects	26/4/21
DA200	D	Elevations	JH Architects	26/4/21
DA201	D	Sections/Acoustic Fencing Spec	JH Architects	26/4/21
DA400	B	Colour Schedule	JH Architects	26/4/21
1906.GD.01	H	Landscape Plan – Ground Floor	Greenland Design	4.5.21
1906.GD.02	H	Landscape Plan – Level 1	Greenland Design	4.5.21
1906.GD.03	H	Landscape Details	Greenland Design	4.5.21
1906.GD.04	H	Landscape Specification	Greenway Design	4.5.21
000	C	Cover Sheet Plan	Australian Consulting Engineers	21/4/21
101	C	Stormwater Concept Plan Basement Level – Sheet 1 of 2	Australian Consulting Engineers	21/4/21
102	C	Stormwater Concept Plan – Basement Level – Sheet 2 of 2	Australian Consulting Engineers	21/4/21
103	C	Stormwater concept Plan – Sheet 1 of 3	Australian Consulting Engineers	21/4/21
104	C	Stormwater Concept Plan – Sheet 2 of 3	Australian Consulting Engineers	21/4/21
105	C	Stormwater Concept Plan – Sheet 3 of 3	Australian Consulting Engineers	21/4/21
106	C	On-Site Detention Details and Calculation Sheets – Sheet 1 of 2	Australian Consulting Engineers	21/4/21
107	C	On-Site Detention Details and Calculation Sheets – Sheet 2 of 2	Australian Consulting Engineers	21/4/21
108	C	Miscellaneous Details Sheet	Australian Consulting Engineers	21/4/21
Emergency Evacuation Diagram – Basement Level	16/6/21
Emergency Evacuation Diagram – Ground Level	16/6/21
Emergency Evacuation Diagram –Level 1	16/6/21

2. The appeal is upheld.

3. Development Application No DA/399/2020 for the demolition of existing structures, tree removal and construction of a 78 place childcare centre with basement car parking on the land at 379 Kissing Point Road, Ermington is approved subject to the conditions of consent annexed hereto and marked “A”.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (649598, pdf)

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Decision last updated: 08 June 2021