Ghantous v Campbelltown City Council

[2023] NSWLEC 1581

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ghantous v Campbelltown City Council [2023] NSWLEC 1581

Hearing dates:

Conciliation Conference on 22 August 2023

Date of orders:

5 October 2023

Decision date:

05 October 2023

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2,000 within 14 days of the date of these orders.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. 2769/2021/DA-C, as amended, for the demolition of existing structures, and construction of a two-storey, 60 children centre based childcare facility with basement parking on land legally described as Lot 7 in DP 248566, known as 6 Shrike Place Ingleburn, subject to the conditions at Annexure A.

Catchwords:

APPEAL – Development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Campbelltown Local Environmental Plan 2015, cll 2.7, 4.1C, 4.3, 4.4, 7.1, 7.4, 7.10

Education and Care Services National Regulations 2011, regs 107, 108

Environmental Planning and Assessment Act 1979, ss 8.7, 8.10, 8.14, 8.15

Environmental Planning and Assessment Regulation 2000, s 55

Land and Environment Court Act 1979, ss 17, 34

Interpretation Act 1987, ss 5, 30

State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017

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

Cases Cited:

Kyrich Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 1190

Texts Cited:

NSW Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021

Category:

Principal judgment

Parties:

Habib Ghantous (First Applicant)
Tanya Ghantous (Second Applicant)
Nandy Ghantous (Third Applicant)
Natalie Ghantous (Fourth Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
N Hammond (Applicant)
A Kliese (Solicitor) (Respondent)

Solicitors:
Finn Roache Lawyers (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2022/299508

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (2769/2021/DA-C) (Development Application) seeking consent for the demolition of an existing dwelling and associated structures and construction of a two-storey, 60 place centre based childcare facility with basement parking on land identified as Lot 7 in Deposited Plan 248566, known as 6 Shrike Place, Ingleburn (Site).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

The Development Application

3. The Development Application was lodged with the respondent on 15 September 2021, being within the “prescribed period” defined in s 8.10 of the EPA Act.

4. The respondent issued correspondence to the applicant requesting further information on 3 February 2022.

5. Further information and documents were provided by the applicant on 16 May 2022.

6. On 7 October 2022, the applicant commenced proceedings in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 6 March 2023. The parties were unable to reach agreement and the conciliation conference was terminated on that date and the matter was subsequently listed for hearing.

8. The Development Application was amended with leave of the Court by Notice of Motion on 13 July 2023.

9. The parties’ experts engaged in joint reporting and produced the following joint reports:

1. Traffic Joint Report, filed 8 August 2023 (Joint Traffic Report);

2. Structural and Geotechnical Engineering Joint Report, filed 10 August 2023 (Joint Geotech Report); and

3. Town Planning Joint Report filed 9 August 2023 (Joint Planning Report).

10. During the joint reporting process, the applicant prepared amended plans, further documents and conditions of consent which incorporated the matters raised by the experts in their joint reports.

11. Amended plans and further documents were provided to the Court on 21 August 2023 and filed on 20 September 2023 (Amended Development Application) cited at [44]. These documents were also uploaded to the NSW Planning Portal. The amendments primarily related to:

1. requiring compliance with a traffic plan of management;

2. requiring the use of contiguous concrete piles;

3. requiring an alternative fencing treatment;

4. increasing landscaping areas; and

5. making general clarifications/corrections to the architectural and landscaping plans.

12. The parties agreed that the Amended Development Application resolved all of the respondent’s contentions set out in the Amended Statement of Facts and Contentions filed on 21 July 2023. The parties subsequently reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and requested that the:

1. hearing listed on 22 August 2023 be adjourned; and

2. matter be listed for a further s 34 conciliation conference on that date.

13. This request was granted, and the matter was listed for a conciliation conference on 22 August 2023. I presided over the conciliation conference.

14. The decision agreed upon by the parties is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

15. 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.

Jurisdictional considerations

16. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owners’ consent

17. The applicants are the registered proprietors of the Site. The applicants rely on a letter from the applicants to Design Link Australia Pty Ltd (Design Link) dated 18 August 2023 providing consent for Design Link to lodge a development application on their behalf in respect of the Site.

18. The Amended Development Application prepared by Design Link on behalf of the applicants as filed with the Court on 20 September 2023 has therefore been submitted with owners’ consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated; and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

20. The Amended Development Application includes a Preliminary Site Investigation prepared by Australian Geotechnical dated 26 April 2021 (PSI). The PSI concluded, amongst other things, that “based on the finding of our site inspection and site history review actual or potential contamination sources were identified as low to negligible in relation to the proposed development for the subject site”.

21. Further, Condition 44 of the agreed conditions of consent requires that, prior to the issue of a Construction Certificate, an unexpected finds protocol and Category “A1” site audit statement prepared by an accredited site auditor certifying that the Site is suitable for a childcare centre, be provided to the certifier for approval. Condition 79B provides that spoil excavated from the Site will require waste classification.

22. The parties agree that the requirements of s 4.6(1) of the RH SEPP are satisfied.

23. Having regard to the PSI and agreed conditions of consent, I am satisfied that the Site is suitable, or can be made suitable, for the purposes for which development consent is sought.

State Environmental Planning Policy (Transport and Infrastructure) 2021

24. The Development Application was lodged with the respondent on 15 September 2021, prior to the repeal of State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017 on 1 March 2022. The parties agree, and I accept that the appropriate approach to take is that of the Court in Kyrich Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 1190 at [33] to [40]. Consistent with that decision, the Amended Development Application is subject to the relevant provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP).

25. The parties agree that s 3.22 of the Transport SEPP does not apply to the development the subject of the Amended Development Application on the basis that the proposed development:

1. exceeds the unencumbered indoor space requirements of reg 107 of the Education and Care Services National Regulations 2011 (Education Regulations); and

2. exceeds the required outdoor space requirements of reg 108 of the Education Regulations.

26. I am therefore satisfied that the Amended Development Application demonstrates compliance with regs 107 and 108 of the Education Regulations. This means that s 3.22 of the Transport SEPP does not apply and the concurrence of the Regulatory Authority is not required.

27. Section 3.23 of the Transport SEPP provides that before determining a development application for development for the purposes of a centre-based childcare facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines (Guidelines) in relation to the proposed development.

28. The Guidelines have been addressed in the Statement of Environmental Effects prepared by Wynne Planning accompanying the Development Application, and the Joint Planning Report. The parties agree that the Amended Development Application addresses the contentions raised by the respondent in relation to compliance with the Guidelines. I can therefore be satisfied that the Guidelines have been considered.

29. Section 3.26 of the Transport SEPP prescribes certain non-discretionary development standards with which the Amended Development Application complies.

30. For the above reasons, I am satisfied that the requirements of the Transport SEPP have been considered by the parties and are satisfied.

Campbelltown Local Environmental Plan 2015

31. The Site is zoned R2 Low Density Residential under the Campbelltown Local Environmental Plan 2015 (CLEP). Accordingly, the proposed development, being a “centre-based child care facility” is permissible with consent in the R2 zone. I have had regard to the zone objectives which are extracted below:

• To provide for the housing needs of the community within a low density residential environment.

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

• To enable development for purposes other than residential only if that development is compatible with the character of the living area and is of a domestic scale.

• To minimise overshadowing and ensure a desired level of solar access to all properties.

• To facilitate diverse and sustainable means of access and movement.

32. The Development Application was publicly exhibited between 12 November 2021 and 6 December 2021. Six written submissions objecting to the proposed development were received in response to the notification of the proposal. Two of the objectors addressed the Court at the s 34 conference on 22 August 2023 via AVL.

33. I am satisfied that the written and oral submissions received by the Court have been taken into consideration in the assessment and determination of the Amended Development Application.

34. The Amended Development Application proposes the demolition of existing structures. Clause 2.7 of the CLEP provides that demolition is permissible with consent. The parties have agreed conditions of consent (see relevantly, Conditions 56 and 60) which address demolition.

35. Clause 4.1C of the CLEP applies to the Site. It stipulates minimum qualifying site areas and lot sizes for centre-based child care facilities in residential zones. In the R2 zone, the minimum lot size for the proposed development is 800 square metres. The Amended Development Application complies with this requirement as the Site is 1,058 square metres.

36. The parties agree that the Amended Development Application complies with the height standard in cl 4.3 of the CLEP and FSR standard in cl 4.4(2A) of the CLEP.

37. The Amended Development Application proposes excavation of approximately 3.5 m from existing ground levels for the construction of the basement car park. Therefore, cl 7.1 of the CLEP relating to “earthworks” applies to the proposed development. This means that the consent authority must consider the matters listed in cl 7.1(3) of the CLEP.

38. The Amended Development Application includes a Geotechnical Investigation Report dated 8 March 2023 prepared by Australian Geoenviro. Further, the parties’ structural and geotechnical engineers have agreed in the Joint Geotech Report that the proposed method of supporting excavation using contiguous concrete piles removes the risk of excavation collapsing and causing damage to adjoining properties and Shrike Place. The preliminary design agreed upon in the Joint Geotech Report has been incorporated into the conditions of consent (see relevantly, Conditions 37, 79A and 79B). In determining the Amended Development Application, I have considered the matters set out in cl 7.1(3) of the CLEP.

39. Clause 7.4 of the CLEP regarding “salinity” applies to the Site. This means that the consent authority must consider the matters listed in cl 7.4(3) of the CLEP and be satisfied of the matters in cl 7.4(4) of the CLEP. The parties agree that the development the subject of the Amended Development Application is not identified in any of the categories in clause 2.14.1 of the Campbelltown (Sustainable City) Development Control Plan 2015 (CDCP) and is not likely to impact on salinity processes on the Site or be impacted by salinity. In determining the Amended Development Application, I have considered the matters set out in cl 7.4(3) of the CLEP and am satisfied of the matters set out in cl 7.4(4) of the CLEP.

40. Clause 7.10 of the CLEP regarding “essential services” applies to the Site. This means that the consent authority must not grant consent to development unless it is satisfied that specified services that are essential for the development are available or adequate arrangements have been made to make them available. In determining the Amended Development Application, I am satisfied of the matters required in cl 7.10 of the CLEP on the basis that:

1. water, electricity, telecommunications and sewer are already available to the Site, and if necessary, any augmentation will be provided when required;

2. Condition 41 of the agreed conditions requires approval from Sydney Water prior to the issue of a Construction Certificate in relation to sewer and water;

3. Condition 30 requires confirmation of satisfactory arrangements in relation to electricity and telecommunication infrastructure;

4. the Amended Development Application provides for stormwater drainage and on-site conservation; and

5. the Amended Development Application provides for suitable vehicular access.

Campbelltown (Sustainable City) Development Control Plan 2015

41. The parties are satisfied that all relevant provisions of the CDCP have been taken into consideration and are satisfied.

Conclusion

42. 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.

43. 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.

44. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending its development application so as to rely on the following amended plans and documents:

Plan Detail	Job Number	Prepared by	Date
Cover – Drawing No. DA01 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Compliance Table – Drawing No. DA02 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Site Plan – Drawing No. DA03 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Site Analysis Plan – Drawing No. DA04 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Emergency Evacuation Plan – Drawing No. DA05 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Erosion and Sediment Control Plan – Drawing No. DA06 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Demolition Plan – Drawing No. DA07 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Basement Plan – Drawing No. DA08 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Ground Floor Plan – Drawing No. DA09 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
First Floor Plan – Drawing No. DA10 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Roof Plan – Drawing No. DA11 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Elevations – Drawing No. DA12 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Fence Elevations – Drawing No. DA13 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Sections & Streetscape View – Drawing No.DA14 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
GFA & Landscape Calculation – Drawing No.DA15 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
June Shadow Diagrams – Drawing No.DA16 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
June Perspective Shadow Diagrams – Drawing No.DA17 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
September – Shadow Diagrams – Drawing No.DA18 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
December – Shadow Diagram – Drawing No.DA19 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Schedule of External Colours and Materials – Drawing No.DA20 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
June – Views from the Sun – Drawing No.DA21 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
June – Views from the Sun – Drawing No.DA22 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Indicative Cut and Fill Plan – Drawing No.DA23 – Issue L	18033_DA	Design Link Australia Pty Ltd	04-08-23
Landscape Concept Ground Floor + First Floor Play Areas – Drawing No. 01 – Rev C	N/A	Outside in Design Group	08-08-23
Street Elevations + Landscape Details – Drawing No. L-02 – Rev C	N/A	Outside in Design Group	08-08-23
Cover Page – Drawing No. S1 – Rev A	G23196	Gemstrux Consulting Engineers	01-08-23
Shoring Plan – Drawing No. S2 – Rev A	G23196	Gemstrux Consulting Engineers	01-08-23
Shoring Details and Sections – Drawing No. S3 – Rev A	G23196	Gemstrux Consulting Engineers	01-08-23
Shoring Section – Drawing No. S4 – Rev A	G23196	Gemstrux Consulting Engineers	01-08-23
Shoring Section – Drawing No. S5 – Rev A	G23196	Gemstrux Consulting Engineers	01-08-23
Shoring Section – Drawing No. S6 – Rev A	G23196	Gemstrux Consulting Engineers	01-08-23
Shoring Section – Drawing No. S7 – Rev A	G23196	Gemstrux Consulting Engineers	01-08-23
Shoring Section – Drawing No. S8 – Rev A	G23196	Gemstrux Consulting Engineers	01-08-23

• Waste Management Plan (Ref: 22120), prepared by Dickens Solution, dated May 2022;

• Plan of Management, dated 15 August 2023; and

• Preliminary Site Investigation, prepared by Australian Geoenviro, dated 26 April 2021.

2. The applicant filed the amended plans and documents outlined above with the Court on 20 September 2023. The amended plans and documents have also been lodged on the NSW Planning Portal.

Orders

45. The Court orders that:

1. The applicant is to pay the respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2,000 within 14 days of the date of these orders.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. 2769/2021/DA-C, as amended, for the demolition of existing structures, and construction of a two-storey, 60 children centre based childcare facility with basement parking on land legally described as Lot 7 in DP 248566, known as 6 Shrike Place, Ingleburn, subject to the conditions at Annexure A.

N Targett

Acting Commissioner of the Court

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Decision last updated: 05 October 2023