Future Masters Pty Ltd v Canterbury-Bankstown Council

[2025] NSWLEC 1084

Land and Environment Court

New South Wales

Medium Neutral Citation:

Future Masters Pty Ltd v Canterbury-Bankstown Council [2025] NSWLEC 1084

Hearing dates:

Conciliation conferences on 18 October and 9 December 2024

Date of orders:

18 February 2025

Decision date:

18 February 2025

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 amended development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $5,000 within 28 days of the date of this Order.

(2) The appeal is upheld.

(3) Development Application No DA-1419/2023, as amended, for the demolition of existing buildings and construction of a 2 storey childcare centre for 72 children, with basement parking and associated landscaping and outdoor play areas at 208 Victoria Road, Punchbowl NSW 2196 is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – 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

Canterbury Bankstown Local Environmental Plan 2023, cll 2.3, 2.7, 4.3, 4.4, 6.3

Education and Care Services National Regulations

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Industry and Employment) 2021

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.26

Category:

Principal judgment

Parties:

Future Masters Pty Ltd (Applicant)
Canterbury Bankstown Council (Respondent)

Representation:

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

Solicitors:
Lionheart Lawyers (Applicant)
Canterbury Bankstown Council (Respondent)

File Number(s):

2024/206576

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 DA-1419/2023 for the demolition of existing buildings, construction of a two storey childcare centre with basement parking and associated landscaping & outdoor play areas (DA) at 208 Victoria Road, Punchbowl legally known as Lot 48 in DP 7136 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 18 October 2024 and 9 December 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 DA-1419/2023 in accordance with the documents listed below:

Description	Sheet No.	Rev No.	Prepared by	Date
Architectural Plans
Site Plan	DA2001	C	Design & Building Group	25 November 2024
Basement Plan	DA2002	C	Design & Building Group	25 November 2024
Ground Floor Plan	DA2003	C	Design & Building Group	25 November 2024
First Floor Plan	DA2004	C	Design & Building Group	25 November 2024
Roof Plan	DA2005	C	Design & Building Group	25 November 2024
Victoria Rd Streetscape (West) Elevation	DA3001	C	Design & Building Group	25 November 2024
East Elevation	DA3002	C	Design & Building Group	25 November 2024
North Elevation	DA3003	C	Design & Building Group	25 November 2024
South Elevation	DA3004	C	Design & Building Group	25 November 2024
Section A-A	DA3005	C	Design & Building Group	25 November 2024
Building Height Plane Diagrams	DA4001	B	Design & Building Group	25 November 2024
Boundary Fence Details	DA4004	B	Design & Building Group	25 November 2024
Emergency Evacuation Plan	DA4005	B	Design & Building Group	25 November 2024
Area Calculations Diagrams	DA5001	C	Design & Building Group	25 November 2024
Schedule of External Finishes | Materials & Colours	DA7001	B	Design & Building Group	25 November 2024
Stormwater Drainage Details
Basement	2280 – S1/3	H	John Romanous & Associates Pty Ltd	26 November 2024
Ground Floor	2280 – S2/3	H	John Romanous & Associates Pty Ltd	26 November 2024
First Floor	2280 – S3/3	H	John Romanous & Associates Pty Ltd	26 November 2024
Landscape Plans
Landscape Concept Ground + First Floor	L - 01	L	Outside In Design Group	26 November 2024
Plant Schedule	L - 02	L	Outside In Design Group	26 November 2024

Description	Rev	Prepared by	Date
Plan of Management	3	Early Education Solutions	27 November 2022
Flood Risk Management	3	Catchment Simulation Solutions	26 November 2022
Traffic Impact Assessment	V07	The Transport Planning Partnership	26 November 2022
Building Code of Australia Compliance Assessment Report for DA Submission	2	AED Group Pty Ltd	27 November 2022
Preliminary Site Investigation	3	EI Australia Pty Ltd	27 November 2024
Detailed Site Investigation	2	EI Australia Pty Ltd	27 November 2024
Acid Sulfate Soil Assessment	3	EI Australia Pty Ltd	27 November 2024
Hazardous Material Survey	2	EI Australia Pty Ltd	27 November 2024
Environmental Noise Assessment	A	Day Design Pty Ltd	27 November 2024

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. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent under s 4.16 of the EPA Act.

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. 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.

Jurisdictional Prerequisites

6. 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.

7. The DA was lodged with the Respondent on 28 November 2023. I am satisfied that owners consent accompanied the DA as provided in the Class 1 application. The Respondent notified the DA for 43 days from 13 December 2023 to 24 January 2024. Five submissions were received.

8. As the parties have entered into an agreement, the Court’s role is limited to considering legal matters. In reaching agreement, the parties have considered the merit concerns raised in the written objections.

Canterbury-BankstownLocal Environmental Plan 2023

9. The subject site is zoned R3 Medium Density Residential, where the proposed use for a centre-based child care facility is permissible with consent. Pursuant to cl 2.3 of the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP), I have had regard to the objectives of the zone. Clause 2.7 demolition of the CBLEP permits demolition with consent, as sought by the amended DA.

10. Clause 4.3 height of buildings of the CBLEP applies and allows a maximum of 8.5m. The architectural plans demonstrate that the amended proposal is below 8.5m.

11. Clause 4.4 floor space ratio (FSR) of the CBLEP applies and allows a maximum FSR of 0.5:1. The parties agree in the jurisdictional statement that the FSR is 0.42:1.

12. Clause 6.3 stormwater management and water sensitive urban design of the CBLEP applies. I accept that the parties are satisfied that the provisions have been met on the basis of the jurisdictional statement, stormwater plans, flood risk management report and erosion and sediment measures, which demonstrate adequate stormwater management and a beneficial effect to the water catchment.

State Environmental Planning Policy (Industry and Employment) 2021

13. The parties confirm that there is no signage proposed on the outside of the building and that State Environmental Planning Policy (Industry and Employment) 2021 does not apply.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site in relation to contamination. The amended DA is accompanied by a Preliminary Site Investigation, Detailed Site Contamination Investigation (DSI) and Hazardous Material Survey prepared by EI Australia in relation to the proposed use.

15. The DSI concludes that the site has been used for residential purposes since the 1940s and that there is no reason to suspect the site is contaminated. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

16. Chapter 3 Educational establishments and childcare facilities of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the proposed development.

17. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 and 3.26 of SEPP TI as shown on the architectural plans and outlined in the jurisdictional statement. Further, based on the agreed submissions from the parties in the jurisdictional statement and Statement of Environmental Effects, I have considered the provisions of ss 3.22, 3.23, 3.26, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

Conclusion

18. 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.

19. 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.

20. 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

21. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away by reason of the amended development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $5,000 within 28 days of the date of this Order.

2. The appeal is upheld.

3. Development Application No DA-1419/2023, as amended, for the demolition of existing buildings and construction of a 2 storey childcare centre for 72 children, with basement parking and associated landscaping and outdoor play areas at 208 Victoria Road, Punchbowl NSW 2196 is determined by the grant of development consent subject to the conditions in Annexure A.

S Porter

Commissioner of the Court 

Annexure A 

**********

Decision last updated: 18 February 2025