Futuristic Design Pty Ltd v Georges River Council

[2020] NSWLEC 1602

Land and Environment Court

New South Wales

Medium Neutral Citation:

Futuristic Design Pty Ltd v Georges River Council [2020] NSWLEC 1602

Hearing dates:

Conciliation conference on 23 November 2020

Date of orders:

3 December 2020

Decision date:

03 December 2020

Jurisdiction:

Class 1

Before:

Smithson AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA2017/0487 for the demolition of existing structures and the construction of a child care centre to accommodate forty seven (47) children with basement car parking at 301 Kingsgrove Road, Kingsgrove, is approved subject to the conditions at Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – child care centre – vehicular and pedestrian safety – conciliation conference – agreement between the parties – orders

Legislation Cited:

Education and Care Services National Regulations

Environmental Planning and Assessment Act 1979

Greater Metropolitan Regional Plan No 2 – Georges River Catchment

Hurstville Local Environmental Plan 2012

Land and Environment Court Act 1979

Roads Act 1993

Road Transport (Safety and Traffic Management) Act 1999

Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999

State Environmental Planning Policy (Educational Establishments and Child Care) 2017

State Environmental Planning Policy No 55—Remediation of Land

Transport Administration Act 1988

Texts Cited:

Child Care Planning Guidelines

Hurstville Development Control Plan 1

Category:

Principal judgment

Parties:

Futuristic Design Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2018/390589

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal by Futuristic Design Pty Ltd (the applicant) lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by the Georges River Council (the Council) of Development Application No. DA2017/0487 (the development application).

2. The development application, as amended with the leave of the Court, seeks consent under the EPA Act for the demolition of existing structures and the construction of a child care centre to accommodate 47 children with basement car parking at 301 Kingsgrove Road, Kingsgrove (the site).

3. The site is on the south western corner of Kingsgrove Road and Vivienne Street, and approval is also sought pursuant to s 138 of the Roads Act 1993 (the Roads Act) to undertake road works in Vivienne Street (the Roads Act application). Specifically, the Roads Act application sets out proposed traffic and parking restrictions on Vivienne Street.

4. By way of background, during the Council’s initial assessment of the development application, being prior to its refusal, the Council’s Traffic Engineer considered proposed changes to the parking in Vivienne Street in response to the proposed development, namely:

1. A 30m ‘No Stopping 7am-9am, 4pm to 6pm, Mon-Fri’ zone being installed on the southern side of Vivienne Street;

2. That the current 8m ‘No Parking’ zone on the southern side of Vivienne Street be modified to ‘No Parking At All Other Times’; and

3. That a statutory 10m ‘No Stopping’ zone be installed on the southern and northern side of Vivienne Street at the intersection of Kingsgrove Road.

5. The Traffic Engineer recommended to the Council’s Traffic Committee that these proposed changes be implemented and the Committee adopted these recommendations. However, the Council subsequently resolved not to adopt the recommendations due to concerns with the impact on resident amenity as a result of the parking restrictions, and instead refused the development application.

6. In the Statement of Facts and Contentions filed with the Court, contentions raised by the Council regarding the development application included the adverse traffic and parking impact of the development, the inadequate landscaping of the site, and the impact on neighbours.

7. The development application was notified on two occasions and 48 objections were received raising concerns on a range of issues but, in particular, in terms of cars using and parking in Vivienne Street, and the safety of pedestrians crossing Vivienne Street.

8. The appeal was listed for hearing before me. However, prior to the hearing, the parties conferred with respect to amendments to the development application and agreed that amendments could be undertaken, supported by both parties, which addressed the contentions.

9. The parties therefore requested that the hearing be adjourned and the matter be listed as a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). This occurred and I presided over that conciliation after which an agreement under s 34(3) of the LEC Act was filed by the parties, and the hearing vacated.

10. As the presiding Commissioner, I am required under s 34(3) to be satisfied that the decision sought by the parties is one that the Court could make in the proper exercise of its functions and, being so satisfied, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

11. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

12. In making the orders, I am not required to make a merit assessment of the development or of the issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met.

13. The parties provided a written jurisdiction statement with the agreement outlining why the agreement was lawful and why the appeal should be upheld.

14. The application was assessed under the provisions of State Environmental Planning Policy (Educational Establishments and Child Care) 2017 (the Child Care SEPP).

15. In terms of cl 22 of the Child Care SEPP, the centre complies with the required provision of indoor and outdoor unencumbered space requirements of the Education and Care Services National Regulations and the Council has considered the applicable provisions of the Child Care Planning Guidelines as is required by cl 23 of the Child Care SEPP.

16. Clause 7 of State Environment Planning Policy No 55 – Remediation of Land requires a consent authority to consider the contamination and remediation of land when determining a development application.

17. The Statement of Environmental Effects lodged with the application notes, and the Council accepts, that the site has been used for residential purposes for several decades. Given that residential use, the land is unlikely to be contaminated.

18. Clause 7 of Greater Metropolitan Regional Plan No 2 – Georges River Catchment (the GMR) requires that the planning principles in cll 8 and 9 of the GMR be taken into account in the determination of a development application. The principles aim to maintain and improve the water quality and river flows of Georges River and its tributaries. The parties agree that the principles have been taken into account and the agreed conditions of consent ensure that any impacts will be adequately mitigated.

19. In terms of the provisions of the Hurstville Local Environmental Plan 2012 (the LEP), the use is permissible in the Low Density Residential R2 zone in which the site is located, and regard has been had to the objectives of that zone. The development, as amended, also complies with the maximum floor space ratio (FSR) requirement of 0.6:1 at cl 4.4 of the LEP with a proposed FSR of 0.43:1. The height is also less than the maximum permissible height of 9m at cl 4.3 of the LEP, with a proposed height of 7.8m.

20. I am also satisfied that the applicable provisions of the Hurstville Development Control Plan 1 have been considered and addressed.

21. The agreement includes the required specific approval by the Court under s 39 of the LEC Act for the proposed road works under s 138 of the Roads Act.

22. In this regard, the Court has limited powers to approve applications under s 138 of the Roads Act. Pursuant to s 7(4) of that Act, the Council is the roads authority for most public roads within its local government area, including Vivienne Street and Kingsgrove Road. By instrument of delegation dated 26 October 2001 (the Delegation) pursuant to the Transport Administration Act 1988, the Roads and Traffic Authority (or the RTA as it was then named) delegated to councils various functions vested in the RTA under the Roads Act; the Road Transport (Safety and Traffic Management) Act 1999 (the RTSTM Act) and the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (the Regulation), subject to specified limitations.

23. Having regard to the Delegation and the RTSTM Act, the parties agree, and I accept, that the Court has jurisdiction to approve the parking restrictions proposed in the consent, confined to those proposed in agreed condition 11 of the consent only.

24. I note that, in coming to an agreement, the parties’ traffic and road safety experts had differing views, as set out in the expert joint reports, as to the required signage and traffic restrictions that would be required to support the proposed child care centre. Notwithstanding the disagreement, the parties have agreed to adopt the more conservative approach of the Council’s expert and require the applicant to lodge certain applications to the Council. The agreed conditions of consent make provision for the event that the Council does not approve the traffic and parking restrictions applied for, to ensure that the consent is certain.

25. The intended effect of each of the relevant agreed conditions, including reference to approvals required by the Roads and Maritime Services (RMS), is as follows:

“10a –    In the first instance, a road closure at the end of Vivienne St as per annexure O to the joint report (separate approval required under RMS delegation);

10b –    If condition 10a is not approved, turning restrictions to be implemented at Vivienne St/Kingsgrove Rd intersection (separate approval required under RMS delegation);

11 –    Parking restrictions to be implemented regardless - as per the Court’s ability to approve under (now RMS) delegation;

12 –    If condition 10a is not approved, turning restriction to Todd Street (separate approval required from Bayside Council); and

13 –    If conditions 10a and 10b are not approved, turning restriction when exiting driveway from the site.”

26. The parties advised that the effect of the complicated suite of conditions (10-13 inclusive) is that the Court would be satisfied that any development consent is final, as it contemplates (and each scenario has been assessed based on) the permutations of each of the proposed works and associated applications. It therefore provides a certain outcome in the event that any of these applications are refused, satisfying the general principles for finality of development consents required by the Court.

27. In imposing these conditions, I note the parties’ advice that the impacts have been comprehensively reviewed by the three traffic experts in the proceedings, including two qualified Traffic Safety Auditors.

28. The Court orders that:

1. The appeal is upheld.

2. Development Application DA2017/0487 for the demolition of existing structures and the construction of a child care centre to accommodate forty seven (47) children with basement car parking at 301 Kingsgrove Road, Kingsgrove, is approved subject to the conditions at Annexure “A”.

.............................

Jenny Smithson

Acting Commissioner of the Court

Annexure A (1541853, pdf)

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Decision last updated: 04 December 2020