Glanville v City of Parramatta Council

[2024] NSWLEC 1059

Land and Environment Court

New South Wales

Medium Neutral Citation:

Glanville v City of Parramatta Council [2024] NSWLEC 1059

Hearing dates:

Conciliation conferences on 7 September, 4 October, 15 and 29 November 2023.

Date of orders:

20 February 2024

Decision date:

20 February 2024

Jurisdiction:

Class 1

Before:

Kullen AC

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 development application, as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA/116/2023, as amended, for the demolition of existing buildings and construction of a child care centre, at 73 Murray Farm Road Carlingford 2118, legally known as Lot 5 DP 542112, subject to the conditions of consent in Annexure ‘A’.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 4.46, 8.7, 8.15, Sch 1, Div 2, s 7

Land and Environment Court Act 1979, ss 34, 39

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Regulation 2021, s 38

Parramatta (former The Hills) Local Environmental Plan 2012, cll 4.3, 4.4, 7.2

Parramatta Local Environmental Plan 2023, cl 1.8A

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.24, 3.25 and 3.26

Cases Cited:

Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724

Texts Cited:

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

The Hills Development Control Plan 2011

Parramatta Community Participation Plan 2022

Category:

Principal judgment

Parties:

Joshua Glanville (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Storey and Gough Lawyers (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2023/115894

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA /116/2023 (the DA) for the demolition and construction of a two-storey, 65 place child care centre with basement carparking on 73 Murray Farm Road Carlingford 2118, legally known as Lot 5 DP 542112 (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 September 2023. I presided over the conciliation conference, which began with an on-site view. There were twelve objections to the proposed development, and one objector attended the on-site view.

3. The s 34 conciliation conference was adjourned to 4 October 2023 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent, and subsequently further adjourned to 15 and 29 November 2023 to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA).

4. As the DA was refused by the Parramatta Local Planning Panel (LPP), and as there are no delegations in place from the LPP to the Council, the s 34 agreement needed to be approved by the LPP pursuant to s 8.15 of the EPA Act. The amended DA was considered by the LPP on 20 December 2023. The LPP determined to support Council’s recommendation to enter into the section 34 agreement with the Applicant, subject to some changes in the conditions of consent.

5. The amended DA includes a reduction in the capacity of the proposed child care facility from 60 to 56 children and incorporates changes to the design of the development to:

1. Flip the driveway entry from the eastern side of the property;

2. Bring the basement level footprint in from the rear boundary;

3. Introduce a ramp in the front setback;

4. Drop the height of acoustic fencing from 2.1m to 1.6m on the western boundary;

5. Place the on-site stormwater detention (OSD) in one of the former car spaces in the basement;

6. Add a platform lift to ensure accessible access into the lower ground floor outdoor play area; and

7. Provide fencing around grates of the OSD.

6. The signed s 34 agreement and Annexure ‘A’ was filed with the Court on 22 December 2023. This decision of the parties involves the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

7. 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. 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.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Environmental Planning and Assessment Act 1979

Owner’s consent

10. The DA was formally lodged on 23 February 2023 by Joshua Glanville, who provided owner’s consent.

11. The proposed development involves the construction of stormwater works within a public reserve owned by the Respondent (Council). Under s 39(2) of the LEC Act, the Court has the power to provide consent to the making of a development application on Council’s behalf (Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724). The parties have requested that the court exercise this power.

Community Participation (Sch 1, Div 2, s 7(1))

12. The DA was exhibited between 7 and 28 March 2023 in accordance with the requirements of the Parramatta Community Participation Plan 2022. Twelve unique submissions were received in response to that notification. The parties advise that the amended DA was not re-notified under the Respondent’s notification policy, as they considered that the changes reduced the environmental impact of the proposed development.

Integrated Development

13. The parties advised that the amended DA does not constitute integrated development within the meaning of s 4.46 of the EPA Act.

Conditions

14. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

15. Parramatta (former The Hills) Local Environmental Plan 2012 (LEP 2012).

16. Parramatta (former The Hills) Local Environmental Plan 2012 is the relevant local environmental planning instrument that applies to the site, as the DA was lodged prior to the gazettal of the Parramatta Local Environmental Plan 2023, which contains savings provisions at cl 1.8A which require that the amended DA be determined as the 2012 LEP had not commenced.

17. Under the 2012 LEP provisions:

1. The site is situated within Zone R2 Low Density Residential pursuant to the provisions of the LEP 2012; and

1. The proposed demolition of buildings and development for the purpose of centre-based child care centre is permissible with consent pursuant to the Land Use Table for the R2 zone; and

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

2. Pursuant to cl 4.3 of the LEP 2012 the maximum height of buildings on the site is 9 metres; and

1. The building has a maximum height less than 9 metres, in compliance with this development standard.

3. Pursuant to cl 4.4 of the LEP 2012 a maximum floor space ratio (FSR) of 0.5:1 for the site; and

1. The proposed development has a FSR of 0.49:1, in compliance with this development standard.

4. The proposed development involves the carrying out of earthworks associated with the construction of a basement parking level. The matters specified in cl.7.2(3) of LEP 2012 must be considered by the Court in granting consent to the development application; and

1. The parties advise that each of the matters at cl 7.2(3) (a) – (g) have been satisfactorily addressed in the proposed development, relating to flooding; stormwater management; excavation, soil contamination and fill; effect on amenity of adjoining properties; likelihood of disturbing environmental heritage; impacts on any watercourse, water catchment or environmentally sensitive area; and mitigating the impacts of the proposed development.

18. State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.

20. There is no significant vegetation on the property, however the proposed development would see the removal of a Eucalyptus microcorys, or Tallowwood located within the adjoining reserve. The parties advise that the Tallowwood has been assessed by a level 5 Arborist who confirms that the tree has significant dieback and is in the final stages of decline. The conditions of consent require the Applicant to replace this tree at a ratio of 2:1 (refer to Condition 67).

State Environmental Planning Policy (Resilience and Hazards) 2021

Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021

21. (Resilience and Hazards SEPP) prevents a consent authority from granting consent to the carrying out of any development on land unless:

1. It has considered whether the land is contaminated, and

2. If the land is contaminated, it is satisfied that the land is suitable in its contaminated state for the purpose of which the development is proposed to be carried out or, if the land requires remediation to make it suitable, it is satisfied that the land will be remediated before the land is used for the relevant purpose.

22. The parties advise that the historic use of the site is for residential purposes and no record exists that indicates that the site was used for a non-residential use that could have caused contamination. In accordance with s 4.6 of the Resilience and Hazard SEPP, the parties consider that the land is suitable for the proposed development of a child care centre; and

1. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

23. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW. Chapter 3 provides a planning regime for educational establishments and early education and care facilities across the State.

24. Chapter 3 of the Transport and Infrastructure SEPP contains non-discretionary development standards for centre based child care centres; and

1. The parties advise that the proposed development meets the requirements of Ch 3 of the Transport and Infrastructure SEPP, including addressing compliance with Child Care Planning Guideline 2021 and Education and Care Services National Regulations 2011. The parties provided details of the proposed development’s compliance with ss 3.22, 3.23, 3.24, 3.25 and 3.26 of the Transport and Infrastructure SEPP.

Child Care Planning Guideline 2021

25. The Child Care Planning Guideline 2021 establishes the assessment framework to deliver consistent planning outcomes and design quality for centre based child care facilities in NSW; and

1. The parties provided an Assessment Report (Annexure ‘B’ of the Jurisdictional Statement) which demonstrated compliance of the amended DA with the Child Care Planning Guideline 2021 (the Guidelines), and that all matters identified by the Respondent as contravening the Guidelines had been addressed in the amended DA.

The Hills Development Control Plan 2012

26. The Hills Development Control Plan 2012 (DCP) applies to the site;

1. The parties submit that all contentions (which included non-compliance with the DCP) raised in the Statement of Facts and Contentions filed on 30 May 2023 have been satisfactorily addressed by the preparation of the amended DA and the agreed conditions of consent.

Conclusion

27. 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.

28. 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.

29. The Court notes:

1. That the City of Parramatta 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 DA/116/2023 made on 22 December 2023 to rely on the documents and plans specified below (the amended development application):

Plan name	Drawing Number	Prepared by	Dated
Amended Architectural Plans
Cover Page	A000 (Rev C)	Janssen Designs	17 October 2023
Calculations Page / LEP Maps	A001 (Rev C)	Janssen Designs	17 October 2023
Site Context Plan	A002 (Rev C)	Janssen Designs	17 October 2023
Demolition Plan	A003 (Rev C)	Janssen Designs	17 October 2023
Site Analysis Plan	A004 (Rev C)	Janssen Designs	17 October 2023
Site Plan	A005 (Rev D)	Janssen Designs	15 November 2023
Basement Floor Plan	A006 (Rev C)	Janssen Designs	17 October 2023
Ground Floor Plan	A007 (Rev D)	Janssen Designs	15 November 2023
First Floor Plan	A008 (Rev C)	Janssen Designs	17 October 2023
Roof Plan	A009 (Rev C)	Janssen Designs	17 October 2023
South & West Elevations	A010 (Rev D)	Janssen Designs	15 November 2023
East & North Elevations	A011 (Rev D)	Janssen Designs	15 November 2023
Section	A012 (Rev C)	Janssen Designs	17 October 2023
Shadow Diagrams	A013 (Rev C)	Janssen Designs	17 October 2023
Cut and Fill Diagram	A014 (Rev C)	Janssen Designs	17 October 2023
Kitchen, Bottle Prep Area & Laundry Details Plans	A015 (Rev C)	Janssen Designs	17 October 2023
Nappy Change Room – Detail Plan	A016 (Rev C)	Janssen Designs	17 October 2023
Kids WC – Detail Plan	A017 (Rev C)	Janssen Designs	17 October 2023
Colour and Finishes Schedule	A018 (Rev C)	Janssen Designs	17 October 2023
Landscape Plans
Proposed Cover Sheet	L/00, (Rev G)	A Total Concept	23 November 2023
Proposed Landscape & Planting Plan – Ground Floor	L/01, (Rev G)	A Total Concept	23 November 2023
Proposed Landscape & Planting Plan – Level 1	L/02, (Rev G)	A Total Concept	23 November 2023
Concept Materials Board	L/03, (Rev F)	A Total Concept	14 November 2023
Concept Materials Board	L/04, (Rev F)	A Total Concept	14 November 2023
Stormwater Management Plans
D1 (Issue E)	NY Civil Engineering	24 October 2023
Stormwater Management Plan Basement / Site Plan	D2 (Issue E)	NY Civil Engineering	24 October 2023
Stormwater Management Plan First Floor / Roof Plan	D3 (Issue E)	NY Civil Engineering	24 October 2023
WSUD Plan	D4 (Issue E)	NY Civil Engineering	24 October 2023
Stormwater Management Plan Easement Layout	D5 (Issue E)	NY Civil Engineering	24 October 2023
OSD Stormwater Details	D6 (Issue E)	NY Civil Engineering	24 October 2023
Sediment Control Plan	D7 (Issue E)	NY Civil Engineering	24 October 2023

Supporting Documentation
Access Compliance Assessment Report (Ref. No.: NEW230708)	New Crown Consulting	25 October 2023
Acoustic Compliance Statement	Wongala Consulting Engineers	25 October 2023
Streetscape Character Analysis	Brosnan & Moore	25 October 2023
Off-Street Parking Facilities Compliance Certificate	Wongala Consulting Engineers	25 October 2023
Parking Assessment (Ref: TR377_0)	Wongala Consulting Engineers	17 October 2023
Plan of Management (Revision 3)	Brosnan & Moore	25 October 2023
Arboricultural Impact Assessment	Arboreport	9 July 2023

30. 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 development application, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to development application DA/116/2023, as amended, for the demolition of existing buildings and construction of a child care centre, at 73 Murray Farm Road Carlingford 2118, legally known as Lot 5 DP 542112, subject to the conditions of consent in Annexure ‘A’.

G Kullen

Acting Commissioner of the Court

**********

Annexure A 

Decision last updated: 20 February 2024