Finn v Georges River Council

[2025] NSWLEC 1443

Land and Environment Court

New South Wales

Medium Neutral Citation:

Finn v Georges River Council [2025] NSWLEC 1443

Hearing dates:

5, 6 and 7 May 2025

Date of orders:

19 June 2025

Decision date:

19 June 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the application as agreed or assessed within 28 days.

(2)  The appeal is upheld.

(3)  Development consent is granted to development application DA2023/0553 for demolition of the existing structures, construction of a two storey 64 place centre-based child care facility with basement parking, tree removal and associated landscaping at 4 The Esplanade, South Hurstville legally identified at Lot 189 of DP6202 subject to the conditions of consent in Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations, regs 107, 108

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Georges River Local Environmental Plan 2021, cll 2.3, 2.7, 5.10, 4.3, 4.4, 6.1, 6.2, 6.3, 6.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, Pt 3.3, ss 3.26, 3.22, 3.24, 3.35

Cases Cited:

BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399

DVCI Pty Ltd v City of Parramatta Council (No 2) [2020] NSWLEC 1319

Ekon Pty Limited v Georges River Council [2021] NSWLEC 1472

Gunnamatta Bay Holdings Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1230

Port Stephens Pearls Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 426

Texts Cited:

Standards Australia / Standards New Zealand, AS/NZ 3500.3.2003, 2003

Category:

Principal judgment

Parties:

Gary Finn (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
M Astill (Respondent)

Solicitors:
Sattler and Associates Pty Limited (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2024/97568

Publication restriction:

No

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 DA2023/0553 seeking consent for the demolition of the existing structures, construction of a two storey 52 place centre-based child care facility with 13 at-grade parking spaces, tree removal and associated landscaping (Proposed Development) at 4 The Esplanade, South Hurstville legally described as Lot 189 of DP 6202 (the Site).

2. The Court granted leave to the Applicant to amend DA2023/0533 on 30 April 2025 to rely on amended plans and documents. As a result of the amendment, the Application seeks consent for, and the Court is to determine whether to grant consent for a development application for the demolition of existing structures, construction of a two storey 64 place centre-based child care facility with basement parking, tree removal and associated landscaping at the Site. Following the amendment to the Proposed Development, the Respondent Council filed an Amended Statement of Facts and Contentions (ASOFAC) on 2 May 2025 (Ex 9) which notes a large number of the contentions raised by the Respondent in the Statement of Facts and Contentions filed 30 April 2024 had been resolved.

3. The hearing commenced onsite and the court heard from a number of objectors including the adjoining neighbours. The Court was also provided with a copy of written submissions and the ASOFAC summarises their concerns at 5.3 to be as follows:

“(a) Insufficient parking.

(b) Inappropriate siting in a residential area.

(c) Traffic congestion.

(d) Safety concerns arising from traffic and parking.

(e) Accessibility.

(f) Tree removal.

(g) Adverse amenity impacts to neighbouring properties.

(h) Intensification of use.

(i) Need for use noting number of existing child-care facilities with the locality.”

4. There were a number of adjoining neighbours who attended and made oral submissions objecting to the Proposed Development for a number of reasons which they say have been repeated many times since 2017. These objectors referred to the history of the Site and the ASOFAC explains that Ekon Pty Ltd previously submitted a Development Application DA2017/0659 for a child care centre. That previous application was refused by the Court in Ekon Pty Limited v Georges River Council [2021] NSWLEC 1472 (“Ekon”), where Clay AC states at [3]-[4] as follows:

“[3] Whilst the DA has generated significant local opposition, it is important to properly understand the role and power of the Court to determine the appeal. It is appropriate to quote the observations of Robson J when dealing with an application for a child care centre which also attracted significant local objection in Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 at [76]-[78]:

“76. First, where land by its zoning has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to whether development is appropriate. As has been frequently stated by this Court, whilst the fact that a particular use may be permissible is generally a neutral factor, a planning decision must generally reflect an assumption that development which is consistent with the zoning will be permitted. This is because the Act provides a complex regime, including extensive public participation, to determine the nature and intensity of development which may be appropriate at any site, and accordingly weight should be given to the outcome of this process (see BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 at [117]-[118] per McClellan CJ of LEC).

77.  Second, the above does not mean that the Court must not give close consideration to all matters otherwise required pursuant to s 79C of the Act. Whilst I take account of the fact that many of the issues initially identified by Council are no longer pressed, each of the issues that are now before the Court require consideration based upon the evidence now available.

78.   Third, the extensive and well-considered objections to the proposal are clearly indicative of extensive local community concerns. While these concerns are understandable, they must be closely considered in the context of the amended application and the evidence now before the Court, particularly the expert evidence.”

[4] The Court must consider the DA in the context of the planning regime established by State and local government, and cannot, for example, determine that a particular land use type should not occur at all in a zone in which it is permissible. That does not mean that if a land use is permissible it must be approved, rather there must be an assessment of the particular development before the Court, having regard to its impacts, the planning regime and the evidence before the Court, especially the expert evidence.”

5. I adopt this summary by Clay AC of the role and power of the Court to determine the appeal.

6. The Applicant also notes the decision of Talbot J in Port Stephens Pearls Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 426 at [72]-[73]:

“[72] Whether or not there will be an adverse effect on amenity is a question of fact to be determined by the consent authority, in this case the Court. Although some of the conclusions by a consent authority may entail a subjective consideration, this nevertheless is carried out objectively in the weighing process. The community response to a proposal must be taken into account as part of the consideration of the public interest pursuant to s 79C(1)(e) of the EP&A Act. However, where the opinions expressed are not supported by evidence objectively expressed by experts in a particular field of expertise, then the views of those who do not have the essential expertise will be given little or no weight or, at the most, less weight than the expert opinion.

[73] It would be a political exercise to give determining weight to the number of objections based solely on the quantitative value of that evidence. That is not a value this Court is entitled to adopt.”

7. The Applicant submits that the Court would be satisfied, on balance, that the use of the Land for a child care centre would reflect the orderly and economic development of the Site and that the impacts can be sufficiently ameliorated, consistent with the agreements reached between the experts and the proposed conditions of development consent. The Applicant submits that it would be in the public interest to provide a child care service in the locality.

8. The Site and the northern portion of The Esplanade (bound by Connells Point Road and Tavistock Road) is zoned R4 High Density Residential pursuant to Georges River Local Environmental Plan 2021 (GRLEP). Whereas the southern portion of The Esplanade is zoned R2 Low Density Residential under the GRLEP. The ASOFAC at 3.2 notes the “recent upzoning from R3 Medium Density Residential to R4 High Density Residential, the locality will transition to a high density area noting its proximity to South Hurstville local centre (i.e. E1 Local Centre zone)”. I reproduce below Figure 6 from the ASOFAC providing an extract of the land zoning map with the Site identified in yellow.

Figure 1: Figure 6 from the ASOFAC providing an extract of the land zoning map (Ex 9)

9. Pursuant to cl 2.3 of the GRLEP, the permissible uses with consent in the R4 zone include centre-based childcare facilities.

10. The Applicant submits, contrary to the submissions of the resident objectors, that the Proposed Development would not be considered an “overdevelopment” of the Site and is otherwise consistent with the strategic objectives provided by the Council’s zoning and development standards in the GRLEP. The Applicant submits the recent observations of Dixon SC are of note in Gunnamatta Bay Holdings Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1230 at [100]

“[100] In this instance, the proposed multi dwelling housing, is a permitted use on the site, and the evidence is that the development is compliant with all key development standards including height, FSR and landscaped area. The proposal is also largely compliant with the setback controls except for the southern elevation to TH 7 which is agreed by the experts to be acceptable. Considering such compliance with each development standard applicable to the built form in the SSLEP, being height, FSR and landscaped area and my own observations of the area I accept Mr Mead’s expert assessment that the development is not an overdevelopment of the site. Typically, overdevelopment is levelled at development that exceeds the planning controls or that is significantly greater in scale than the surrounding development or has significant amenity impacts on the surrounding properties or within the development itself. Yet none of these issues arise with the amended proposal in my assessment of all of the evidence.”

11. In this regard, it is relevant to note that the Proposed Development is:

1. considerably lower than the 12 m HOB development standard proposing a maximum height of 9 m;

2. almost half the maximum permissible FSR development standard;

3. situated in the R4 High Density residential zone; and

4. as demonstrated by the evidence, will have no unacceptable impacts in relation to traffic, landscaping, stormwater, waste and acoustic.

12. The Applicant relies on the planning principle enunciated in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [118]:

“[118] In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts”.

13. The proposal is a use contemplated in the zone. The Applicant submits that it is reasonable to assume that the site is suitable for that use (see DVCI Pty Ltd v City of Parramatta Council (No 2) [2020] NSWLEC 1319 at [66]-[69]), subject to the Applicant demonstrating that the environmental impacts may be ameliorated to an acceptable standard.

14. To the extent that the Proposed Development seeks consent to use the Site as a childcare centre development, there can be no real dispute on the facts that the proposed use is otherwise consistent with the objectives of the R4 High Density Residential zone, in particular the objective “[t]o enable other land uses that provide facilities or services to meet the day to day needs of residents”.

15. The Applicant helpfully provided an outline of closing submissions and jurisdictional prerequisites.

16. The Respondent, in closing submissions confirmed that all contentions had been resolved between the experts subject to conditions of consent, however, the Respondent did not have instructions to enter into an agreement pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The Respondent made no submission that the development application should be refused and instead made the submission that it was a matter for the Court to evaluate the relevant statutory considerations including the submissions made by the objectors and with the assistance of the expert evidence to determine whether or not to grant consent.

17. The parties have agreed on Draft/Proposed Condition of Consent (Ex 11).

18. As there are no contentions pressed by the Respondent, I will now set out my evaluation of the Proposed Development pursuant to s 4.15 of the EPA Act and, for that purpose, I have referred to the following:

1. The Class 1 Application as at the time of hearing (Ex A to J) including the Statement of Environmental Effects (SEE) dated May 2023 prepared by Greg Boston (Ex A, Tab 4) and the Supplementary SEE dated 28 March 2025 prepared by Greg Boston (Ex B, Tab 4);

2. ASOFAC (Ex 9);

3. the evidence of agreement between the expert witnesses (Ex 2 to 8);

4. reasons for refusal in Ekon; and

5. agreed Draft/Proposed Conditions of Consent (Ex 11)

19. The SEE concludes at page 26 that the proposal has been considered against the relevant provisions of s 4.15 of the EPA Act and that the design is “responsive to the findings of the Land and Environment Court of NSW in relation to a previous child care centre proposal on the site in the matter of Ekon Pty Limited v Georges River Council [2021] NSWLEC 1472”. The Supplementary SEE concludes as follows:

“Having reviewed the amended plans and documentation I am satisfied that the assessment and conclusions … remain relevant to the amended proposal notwithstanding that the replacement of the at-grade car parking with basement car parking accommodation and the re-siting of the childcare centre relative to the setbacks established by the existing and immediately adjoining properties provides for improved streetscape, landscape and residential amenity outcomes.

Having given due consideration to the matters pursuant to Section 4.15(1) of the Environmental Planning and assessment Act, 1979 as amended, it is considered that the amended plans appropriately respond to the contentions raised and accordingly there are no matters which would prevent the granting of consent to the development sought in this instance.”

20. Notwithstanding the tender of the ASOFAC, no contentions are pressed by the Respondent.

21. The Court has been assisted by the expert evidence including the Supplementary Town Planning Evidence (Ex 8) setting out their agreements reached subject to conditions of consent. I summarise the resolution of the contentions by reference to the Joint Expert Reports (JER) as follows:

1. Traffic JER filed 7 April 2025 (Ex 2) notes that carparking and design safety issues previously raised by Council have been resolved, subject to conditions;

2. Landscape and arboriculture JER filed 11 April 2025 (Ex 4) notes that concerns regarding adverse tree impacts have been resolved subject to conditions and landscaping generally has been resolved subject to conditions;

3. Acoustics JER filed 11 April 2025 (Ex 3) identifies that the Plan of Management (POM) needs to be consistent with the amendments to the Proposed Development and it is noted that an updated POM in Ex 8 at Annexure C has been agreed by the Town Planners to be consistent;

4. Stormwater engineering JER filed 16 April 2025 (Ex 5) addressed the contention in the ASOFAC subject to conditions;

5. Waste management JER filed 17 April 2025 addressed the contention in the ASOFAC subject to conditions.

6. Town Planners reached substantial agreement on all remaining contentions in the ASOFAC (Ex 8).

22. The Proposed Development can be and is distinguished from the previously refused Development Application DA2017/0659 for a child care centre because the reasons for refusal articulated in Ekon have all been cured and addressed. I note some of those matters as follows:

1. There has since been a change in zone for the Site from R3 Medium Density Residential to R4 High Density Residential.

2. The Proposed Development includes evidence of tree root mapping and mitigation of risk to the adjoining Murraya (identified in the Proposed Development as T9): (Ex B, Tab 9).

3. The acoustic canopy has been deleted and none of the acoustic fences will be visible from the street or from adjoining neighbours.

4. The driveway is now setback.

5. There have been changes to articulation, fenestration and materials resulting in agreement between the town planners that the streetscape character contention is resolved subject to conditions.

23. Accordingly, I am satisfied that the concerns of the objectors have been appropriately considered and addressed.

24. I am also satisfied that the agreed Draft/Proposed Conditions of Consent (Ex 11) address and incorporate the agreements reached between the experts as follows:

1. Condion 16 details the design amendments required to the plans and documentation;

2. There are appropriate tree protection provisions;

3. Waste management including treatment and management of asbestos is included; and

4. Geotechnical excavation management is provided for.

25. The Applicant submits that, collectively, the amendments result in a Proposed Development that represents a better environmental outcome because the changes improve the streetscape appearance of the building, reduce the opportunity for adverse impacts on neighbours, landscaping, tree protection, traffic, parking and waste collection.

26. Accordingly, consistent with agreed opinions expressed by the parties’ experts in relation to the acceptable planning and environmental impacts of the Proposed Development and satisfaction of the jurisdictional matter discussed below, the Applicant submits that it is appropriate that consent be granted subject to conditions. I accept that submission.

27. Having considered the evidence before the Court, and having undertaken a merit evaluation I adopt the conclusion reached in the Supplementary SEE and conclude that the evidence supports a determination of the development application to grant consent to the Proposed Development subject to the conditions of consent at Ex 11.

28. Prior to granting the consent I must be satisfied of a number of jurisdictional prerequisites. The parties explained how the jurisdictional prerequisites have been satisfied and I now address these below.

Satisfaction of the jurisdictional prerequisites

29. Owner’s Consent by the registered proprietor of the Site accompanied the development application submitted to the Council in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021 and a copy of that consent is included in the Class 1 Application being Ex A at Tab 2.

29. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) provides a planning regime for educational establishments and early education and care facilities across the State and Pt 3.3, Early education and care facilities, identifies relevant standards. Section 3.26(2) of the Transport and Infrastructure SEPP identifies the non-discretionary development standards for a centre based child care facility in relation to the following:

(a) location - the development may be located at any distance from an existing or proposed early education and care facility,

(b) indoor or outdoor space

(i)   for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies—the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or

(ii) for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies—the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause,

(c) site area and site dimensions - the development may be located on a site of any size and have any length of street frontage or any allotment depth,

(d) colour of building materials or shade structures - the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area.

31. The Town Planning experts have considered and agreed that the Proposed Development complies with the Education and Care Services National Regulations (Regulations) and have included a Compliance Report prepared by Early Education Solutions dated 2 May 2025 at Annexure D to their Supplementary Town Planning Joint Expert Report (Ex 8). The Compliance Report considers the provisions against the development application as amended including ventilation which is relevant to the prior refusal in Ekon.

32. As the Proposed Development demonstrates compliance with regs 107 and 108 of the Regulations, concurrence from the Regulatory Authority under s 3.22 of the Transport and Infrastructure SEPP is not required.

33. The Site is not within a prescribed zone for the purposes of s 3.24 nor in an R2 Low Density Zone for the purposes of s 3.25 of the Transport and Infrastructure SEPP.

34. In relation to the jurisdictional prerequisites contained in the GRLEP:

1. The proposed demolition of the existing dwelling on the Site is permissible with consent pursuant to cl 2.7;

2. neither the Site nor the existing building on the Site is a heritage item, nor is it within a heritage conservation area (cl 5.10);

3. the proposed building has a maximum height of building (HOB) of 7.8 m, in compliance with the HOB development standard of 12 m pursuant to cl 4.3(2);

4. the Proposed Development has a Floor Space Ratio (FSR) of 0.58:1, in compliance with the FSR development standard of 1:1 for the Site pursuant to cl 4.4(2);

5. The Applicant relies on a Geotechnical Investigation report prepared by Geo-Environmental Engineering (Geotech Report) dated 5 May 2025 (Ex E) which addresses the provisions of cl 6.1 regarding acid sulfate soils and cl 6.2 earthworks. In that regard I note the following:

1. The consent authority is required to consider any potential acid sulfate soils affectation so that it does not disturb, expose or drain acid sulfate soils and cause environmental damage: cl 6.1. The Geotech Report states at 2.5 that the site lies outside of areas defined as ‘Class 1’ to ‘Class 5’ and that an acid sulfate soil assessment or management plan is not warranted.

2. Consent is sought for the carrying out of earthworks associated with the construction of footings and basement carpark pursuant to cl 6.2. and the Geotech Report concludes that “sufficient information has been gained to be confident of the subsurface conditions across the site, to allow for the design of the proposed development and to address the provisions of Clause 6.2 of the GRLEP regarding the proposed earthworks.” In relation to the matters specified in cl 6.2(3), I have also considered the contents of the Construction and Demolition Waste Management Plan dated 6 May 2025 Rev D prepared by Elephants Foot Consulting (Ex G) and the matters required by cl 6.2(3) are addressed below:

1. The Site is not affected by floodwaters. The development incorporates a stormwater management system which ensures that stormwaters are captured, detained and conveyed via pipe to Council’s stormwater infrastructure.

2. The proposed excavation would not impede the future use or redevelopment of the Site.

3. The Site is not contaminated and is suitable for the proposed child care centre use. Consequently, the soil is not contaminated.

4. The Proposed Development, and in particular the proposed excavation associated with the basement carpark would not have an adverse impact upon current or future amenity levels of adjoining properties.

5. The development does not involve the importation of fill.

6. The Site is not listed as an item of environmental heritage.

7. The Site is not proximate to a watercourse, drinking water catchment or environmentally sensitive area.

8. The conditions of consent will ensure the construction impacts of the development are minimised. The centre will operate pursuant to a detailed operational plan of management.

6. Clause 6.3(2) contains a number of provisions to achieve the objective of minimising the impacts of urban stormwater on the Site and on adjoining properties, native bushland and receiving waters. The amended stormwater plans prepared by Stelios Engineers Pty Ltd (Ex Ex B, Tab 3) and the agreement reached by the parties’ experts in relation to the satisfactory application of the Council’s Stormwater Management Policy and AS/NZ 3500.3.2003 in the Joint Expert Report Stormwater engineering filed 16 April 2025 (Ex 5) satisfy the requirements of cl 6.3(2).

7. The Court can be satisfied that relevant essential services are available for the Proposed Development as required by cl 6.9 because the Site contains a dwelling house and is in a long established urban area. It has an existing supply of water, electricity and sewerage. Stormwater management can be undertaken on the Site and parking access by way of suitable vehicular access will be provided.

8. As the Site is Zone R4 High Density Residential, the requirements of cl 6.12(4) apply to the Proposed Development and in satisfaction of those provisions, the Applicant has provided amended landscape plans prepared by Canvas Landscape Architects Issue F, as part of the amended development application (Annexure B to Ex 8). The Arboricultural Impact Assessment Report prepared by Jackson Nature Works dated 31 March 2025 (Ex B, Tab 9) demonstrates that there will no impact on existing street trees or vegetation on adjoining properties. The amended landscape plans also now provide for considerable deep soil planting in the front setback (which was previously proposed to be an at-grade carpark) and reintroduce appropriate species of planting in lieu of other trees being removed. The landscape plans also provide for boundary planting to provide a buffer to allow for management of visual and acoustic privacy. The parties’ experts otherwise agree in the Joint Expert Report - Arboriculture and Landscape - Ross Jackson and Kobby Kwak (Applicant) and Craig Kenworthy (Respondent) filed 11 April 2025 (Ex 4) that the proposed landscape treatments enhance the existing streetscape and desired future character of the locality.

35. A review of the available history for the Site gives no indication that the land associated with the development is contaminated: s 4.6 State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The SEE at p 13 provides that no record exists on the NSW EPA list of notified contaminated sites in relation to the Site, nor is the Site within the vicinity of any listed sites. One of the objectors mentioned a concern regarding the presence of asbestos in the existing tennis club house. The Applicant relies on the following:

1. The Geotech Report did not identify any foreign material during the borehole investigations nor any obvious indicators of contamination such as odours or staining; and

2. There are safeguards and requirements in the Construction and Demolition Waste Management Plan prepared by Elephants Foot Consulting which are incorporated in the conditions of consent.

36. Accordingly, the Court is satisfied, in accordance with s 4.6 of the Resilience and Hazard SEPP, that the land is suitable for the Proposed Development.

37. The Site is located within the Georges River Catchment but outside the Foreshores and Waterways Area in accordance with the maps associated with the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The provisions in Ch 6 of the Biodiversity and Conservation SEPP which include jurisdictional prerequisites to be satisfied that relate to the water catchment are contained in ss 6.6(2), 6.7(2), 6.8(2) and 6.9(2) relating to water quality and quantity, aquatic ecology, flooding, recreation and public access, and total catchment management. To satisfy these jurisdictional prerequisites, the Applicant relies on the following:

1. Joint Expert Report - Stormwater engineering - Sasikumar Poosapardi Arjunan (Applicant) and Firoz Ahmed (Respondent), filed 16 April 2025.

2. Stormwater plans as well as a Water Quality and Quantity Assessment prepared by Stelios Engineering Pty Ltd (Exhibit D) .

38. Having considered these documents, the Court is satisfied that the stormwater plans for the Proposed Development ensure that there will be no impact on water flow and a beneficial effect on the quality of water entering any natural waterbodies due to the existing lack of filtration or any other treatment mechanisms on the Site in comparison to those proposed by the development.

39. The Proposed Development also keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, and will not have a direct, indirect or cumulative adverse impact on aquatic reserves or wetlands and otherwise minimises the erosion of land or the creation of sedimentation impacts.

40. Further, the Site is not located within the flood planning area, considered to be flood liable or within proximity of a natural waterbody and is therefore unlikely to impact on periodic flooding that benefits wetlands and other riverine ecosystems or otherwise affect recreational land use or public access to and from foreshores or natural waterbodies.

Notations:

41. The Court notes that the Respondent council as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA2023/0553 made on 6 May 2025 to rely on the documents and plans specified as follows:

1. Amended Architectural plans at Annexure A to Ex 8;

2. Amended Landscape Plans at Annexure B to Ex 8;

3. Amended Plan of Management at Annexure C to Ex 8;

4. Geotechnical Investigation Report dated 5 May 2025 (Ex E);

5. Building Opinion of Probable Cost dated 4 May 2025 (Ex C);

6. Updated Waste Management Plan

Orders:

42. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the application as agreed or assessed within 28 days.

2. The appeal is upheld.

3. Development consent is granted to development application DA2023/0553 for demolition of the existing structures, construction of a two storey 64 place centre-based child care facility with basement parking, tree removal and associated landscaping at 4 The Esplanade, South Hurstville legally identified at Lot 189 of DP6202 subject to the conditions of consent in Annexure A.

E Espinosa

Commissioner of the Court

Annexure A (487 KB, pdf)

POM(1.82 MB, pdf)

Architectural plans (16.9 MB, pdf)

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Decision last updated: 19 June 2025