Giraffe Child Care Group Pty Ltd v Northern Beaches Council

[2021] NSWLEC 1533

Land and Environment Court

New South Wales

Medium Neutral Citation:

Giraffe Child Care Group Pty Ltd v Northern Beaches Council [2021] NSWLEC 1533

Hearing dates:

Conciliation conference on 12 July 2021, 13 and 30 August 2021

Date of orders:

16 September 2021

Decision date:

16 September 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

Refer to the orders below at [23]

Catchwords:

DEVELOPMENT APPLICATION – extension of existing child care centre – heritage item on NSW State Heritage Register – car stackers – 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, 4.55, 8.7

Environmental Planning and Assessment Regulation 2000, cll 55, 296

Heritage Act 1977, cl 57, 58

Land and Environment Court Act 1979, s 34

Manly Local Environmental Plan 2013, cl 5.10

State Environmental Planning Policy (Educational Establishment and Child Care Facilities) 2017, cl 23

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

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Manly Development Control Plan 2013

NSW Department of Planning and Environment, Child Care Planning Guideline (August 2017)

Category:

Principal judgment

Parties:

Giraffe Child Care Group Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Reid & Vesely (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/365390

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Northern Beaches Council (Council) of Development Application DA2020/0765 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 2,118.4m² parcel of land at 81 Griffiths Street and 46 Boyle Street Balgowlah comprising the four allotments Lot 72, Lot 1, Lot 2 and Lot 3 in DP 9860 (the Site). The Site is occupied by two buildings, one being a former substation building that is listed on the NSW State Heritage Register. The former substation building is integrated with the modern purpose - built child care centre building attached to it. The two buildings operate as a single child care facility, which was approved under DA 112/2016 on 7 December 2016 to accommodate 120 children. A basement level with vehicular ingress from Griffiths Street and egress to Boyle Street provides parking for 14 staff vehicles and 9 drop off / pick up spaces for parents and carers. Four additional staff parking spaces are provided in a separate at-grade car park accessed off Boyle Street.

3. DA 112/2016 was modified under s 4.55 of the EPA Act on 8 March 2018, to convert an indoor room to an outdoor play space and improve the pedestrian access to the building entrance.

4. The DA the subject of this appeal seeks consent for alterations and additions to the existing child care centre resulting in:

1. an increase in the capacity of the centre from 120 to 150 children,

2. the removal of three of the at-grade car parking spaces accessed off Boyle Street to allow for an extension of the outdoor play area by 71.56m², and

3. the reallocation of parking spaces in the basement.

5. The DA was submitted to the Council on 9 July 2020. It was advertised and notified between 18 July and 16 August 2020, and again 30 October and 20 November 2020 due to an error in the property description on the first occasion. Twenty-seven submissions were received: 14 in favour of the DA and 13 opposed. The DA was referred to Ausgrid, resulting in no response, and to the Heritage Council of NSW, who responded on 21 August 2020 with General Terms of Approval. On 9 December 2020 the Northern Beaches Local Planning Panel refused the DA.

6. On 24 December 2020 the Applicant lodged this Class 1 Appeal with the Court. On 15 March 2021 the Council filed its Statement of Facts and Contentions (SOFC).

7. The Court arranged a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which commenced on 12 July 2021. In accordance with the Court’s Covid-19 Policy in place at the time, there was no site view as part of the s34 conciliation conference. No oral submissions were taken, although copies of the public written submissions were provided to the Court prior to the conference.

8. On 13 August 2021 the parties filed a s34 agreement signed and dated 13 August 2021 (s34 Agreement), draft conditions of consent (Annexure A to the s34 Agreement), copies of the amended plans and a joint submission on the jurisdictional pre-requisites to the granting of consent.

9. On 16 August 2021 the Court advised the parties that cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) had recently come into effect (after 1 July 2021) following the lapsing of the transitional provisions in cl 296 of the EPA Regulation. These changes meant that amendments to the DA would need to be uploaded to the NSW Planning Portal before the amendments become effective and consent could be granted. The parties were also requested to recast their s34 Agreement to reflect the changed requirements for amending the DA.

10. On 30 August 2021, prior to the reconvened s34 conference on that date, the parties filed a revised version of the s34 agreement, signed and dated 30 August 2021 (Revised s34 Agreement), incorporating amendments referring to the uploading of the amended DA material to the NSW Planning Portal, and draft conditions of consent at Annexure A.

11. On 7 September the Court advised the parties that further wording changes to the Revised s34 Agreement were needed before consent could be granted and on 10 September a final s34 Agreement signed and dated 10 September 2021 was filed with the Court (Final s34 Agreement).

12. The main changes between the original DA and the amended application the subject of the Final s34 Agreement are:

1. Two sections of the eastern wall of the new play area have been indented and landscaped. The landscaped ‘indents’ are located opposite side boundary walls in the adjoining residence at 44 Boyle Street.

2. The planter along the side boundary to 44 Boyle Street has been extended in a northerly direction to provide additional landscape screening of the wall to the extended play area.

3. Four additional staff parking spaces are provided in the basement in two car stackers containing a total of 8 spaces. Each of the two stackers are 2 car spaces wide by 2 car spaces high, and together replace four single unstacked spaces.

13. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings and agreed that there are no jurisdictional constraints to the Court exercising its function under s 34(3) of the LEC Act.

Satisfaction of jurisdiction

14. In relation to the Heritage Act 1977 (Heritage Act) the Electricity Substation is identified on the NSW State Heritage Register, and therefore the development is “Nominated Integrated Development” under ss 57 and 58 of the Heritage Act. Accordingly the DA was forwarded to Heritage NSW. By letter dated 21 August 2020 Heritage NSW provided its General Terms of Approval to the DA and those terms have been included in the conditions of consent.

15. State Environmental Planning Policy (Educational Establishment and Child Care Facilities) 2017 (Child care SEPP) applies to the development. The DA has considered the applicable matters of the Child Care Planning Guideline (Guideline), as required under cl 23 of the Child care SEPP. The proposal has been assessed against the requirements of the Guideline, as detailed in Annexure A of the Statement of Environmental Effects, prepared by Planning Ingenuity and dated 26 June 2020 (SEE) and in the Officer’s Report at pages 753-763, and found to be satisfactory in terms of its compliance. The Officer’s Report (at page 375) also assesses the proposal satisfactory by reference to the Education and Care Services National Regulations (National Regulations).

16. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cl 7, applies to the land and requires consideration of any contamination and associated remediation. The requirements of cl 7 were considered, and addressed, in the granting of consent to existing child care facility DA 112/2016 in December 2016. The Site is not contaminated and no remediation is required (refer to the SEE at page 10 and the Officer’s Report at page 375).

17. In relation to the Manly Local Environmental Plan 2013 (MLEP) the relevant considerations are:

1. The development is for the purposes of a “Child Care Centre (centre-based child care facility)”, which is permissible with consent in the R1
   General Residential Zone (R1 Zone) and is consistent with the objectives of the R1 Zone.

2. The development complies with all relevant development standards in the MLEP.

3. Clauses 5.10 of the MLEP applies as the Site contains a listed heritage item (Item I14 – Electricity Substation). The assessment of the DA by Council’s heritage advisor is found at pages 344 – 345 of the Council Officer’s Assessment Report. The requirements of cl 5.10 have been satisfied.

18. The proposed development has been assessed against the relevant provisions of the Manly Development Control Plan 2013 (DCP). An assessment on behalf of the Applicant is found in Annexure B of the SEE, and on behalf of the Council in the Council Officer’s Report at pages 376 – 380. The requirements of the DCP have been satisfied, notwithstanding the proposed number of parking spaces does not strictly comply. Nevertheless the parties agree that changes to the street parking, the allocation of basement parking spaces and the introduction of the car stackers render the development adequate in terms of its parking provision.

19. With respect to s 4.15(1)(a) to (e) of the EPA Act, the parties agree that:

1. All relevant planning instruments, the Guideline and the DCP have been considered (see above).

2. The likely impacts of the development are acceptable.

3. The Site is suitable for the proposed development.

4. In light of the amended urban design outcome and the additional parking provided, the public submissions do not require refusal of the application.

5. There is no public interest consideration arising that would warrant refusal of the application.

20. The parties have also agreed on draft Conditions of Consent (at Annexure A of the Final s34 Agreement) and have advised the Court that these may lawfully be imposed having regard to the provisions of ss 4.16 and 4.17 of the EPA Act.

Disposal of proceedings in accordance with the parties’ decision

21. 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’ agreement.

22. The Court notes:

1. That the Applicant has amended the application with the consent of the Respondent.

2. That the amended application was lodged on the NSW Planning Portal on 19 August 2021.

3. That the Applicant has subsequently filed the amended application with the Court on 23 August 2021.

23. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000.00 within 28 days of the orders being made by the Court.

2. The Appeal is upheld.

3. Development Application DA2020/0765 for alterations and additions to an existing child care centre at 81 Griffiths Street and 46 Boyle Street, Balgowlah is approved subject to the conditions set out in Annexure “A”.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (233320, pdf)

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Decision last updated: 16 September 2021