Glenfield 1 Pty Ltd v Campbelltown City Council

[2024] NSWLEC 1373

Land and Environment Court

New South Wales

Medium Neutral Citation:

Glenfield 1 Pty Ltd v Campbelltown City Council [2024] NSWLEC 1373

Hearing dates:

Conciliation conference 8 May 2024

Date of orders:

10 July 2024

Decision date:

10 July 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is granted leave to file the amended Development Application as listed at [6] in the judgment.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amended Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $4,500 within 21 days of the date of the order.

(3) The appeal is upheld.

(4) Development Application No 2758/2023/DA-C, for the demolition of existing structures, amalgamation of lots, and construction of a child care centre for 120 children above basement parking for 30 vehicles and associated site and landscape works on land legally described as Lot 9 and Lot 10 in Deposited Plan 243781 and known as 18-20 Bougainville Road, Glenfield, NSW 2167, is determined by the grant of development consent subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition works and construction of centre based child care centre for 120 children – conciliation conference – amended plans and documents – agreement reached between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 8.7, 8.15

Land and Environment Court Act 1979 s 34

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Regulation 2021 ss 23, 38

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

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

Campbelltown Local Environmental Plan 2015, ss 2.7, 4.1C, 4.3, 4.4, 6.2, 6.3, 7.1, 7.4, 7.10, Pt 6

Texts Cited:

Campbelltown (Sustainable City) Development Control Plan 2015

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

Category:

Principal judgment

Parties:

Glenfield 1 Pty Ltd (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
Dr J Smith (Applicant)
J Corradini-Bird (Solicitor)(Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/319942

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No 2758/2023/DA-C. The development application, as amended, seeks consent for demolition of existing structures and construction of a centre based child care centre for 120 children above a basement car park for 30 vehicles. The development is proposed at 18-20 Bougainville Road, Glenfield (Lot 9 and Lot 10 DP 243781).

2. A conciliation conference was held between the parties on the 8 May 2024 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference. The conciliation conference was adjourned to allow ongoing discussions between the parties who have reached agreement as to the resolution of the contentions in the proceedings. The parties agreement is for the grant of consent to the application, as amended, subject to the annexed conditions of consent.

3. 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 on the basis that:

1. The development application was made with the written consent of the registered proprietors of the lot which comprises the site: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The amended development application no longer proposes a retaining wall along the rear boundary of the site, resolving the previous contention that owners consent was required from the adjoining property owner.

2. The development application was notified by the Respondent between 23 August and 13 September 2023. One submission was received. The amended development application was renotified for a period of 21 days from 13 May 2024. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or by the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. The Education and Care Services National Regulations 2011 apply to the development application along with the Child Care Planning Guidelines issued by the NSW Department of Planning and Environment in 2021. Pursuant to s 3.23 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines before determining the application. The Statement of Environment Effects (SEE) accompanying the development application confirms that the proposed development complies with the non-discretionary standards for centre based child care facilities at s 3.26 of the Transport and Infrastructure SEPP. I accept the parties’ agreed submission that the development application complies with the relevant matters under the Child Care Planning Guidelines and the Education and Care Services National Regulations, as demonstrated by the SEE.

4. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires a consent authority to consider the contamination of land when determining a development application. The development application includes a Preliminary Site Investigation Report. That report concludes that the site is deemed suitable for the proposed (high density residential) development. On the basis of the preceding, and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the development application.

5. Campbelltown Local Environmental Plan 2015 (LEP 2015) applies to the site which is zoned R3 Medium Density Residential. Centre based child care facilities are a use which is permitted with consent in the R3 Medium Density Residential zone. In determining the development application, I have given consideration to the objectives of the R3 Medium Density Residential zone.

6. The proposed demolition works are permitted with consent pursuant to cl 2.7 of LEP 2015.

7. The amended development application is compliant with the development standards for height, floor space ratio, and minimum lot size in LEP 2015 at cll 4.3, 4.4(4A) and 4.1C(2) respectively.

8. The site is mapped within the Glenfield Urban Release Area and Part 6 of the LEP 2015 applies. Pursuant to cl 6.2, development consent must not be granted to the development application unless the Council is satisfied that any public utility infrastructure essential for the proposed development is available or can be made available. The site contains two dwellings in an established residential area and is currently serviced by essential public utility infrastructure. Further, the development application must comply with essential service requirements under cl 7.10 of LEP 2015. The SEE submitted with the development application confirms that the development site is well serviced by electricity, water and sewer and confirms that the required utility clearances will be obtained prior to works commencing on site. I find that cll 6.2 and 7.10 of LEP 2015 are satisfied.

9. As the land is in an urban release area, cl 6.3 of LEP 2015 applies. Clause 6.3(3) of the LEP 2015 provides requirements for the applicable development control plan. That development control plan is the Campbelltown (Sustainable City) Development Control Plan 2015 (DCP 2015). Further I am satisfied that the DCP 2015 covers the matters in cl 6.3(3) of LEP 2015. On this basis, development is not precluded from being granted under cl 6.3(2) of LEP 2015.

10. As required by cl 7.1 ‘Earthworks’ of LEP 2015, in determining the development application, I have considered the matters listing at subcl (3). In considering those matters I am assisted by a Geotechnical Site Investigation prepared by Geotesta dated 13 December 2023 which addresses the matters of consideration listed in cl 7.1 of LEP 2015. I am satisfied that the earthworks proposed in the development application will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

11. The site is affected by salinity and cl 7.4 ‘Salinity’ of LEP 2015 applies. Subclause (4)(a) requires the consent authority to be satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact. The amended development application is accompanied by a Geotechnical Site Investigation prepared by Geotesta dated 13 December 2023 which addresses the matters of consideration and matters of satisfaction in cl 7.4 relating to salinity. The report raises no concerns in regards to salinity arising from the proposed development, meeting the requirements of cl 7.4 of LEP 2015.

12. As noted at [3(8)], DCP 2015 applies to the site. The SEE filed with the application details the compliance of the proposed development with DCP 2015. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act in s 34(3)(b) also requires me to “set out in writing the terms of the decision”.

5. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

6. The Court notes that the Respondent has agreed, as the relevant consent authority, under s 38(1) of the EPA Regulation, to the Applicant amending Development Application No 2758/2023/DA-C to rely upon the following amended documents (Amended Development Application), as filed with the Court:

Drawing No and Revision		Title	Prepared by		Date
Architectural Plans
1	Drawing No. A000 Issue C	Cover Page	Janssen Designs		8 May 2024
	Drawing No. A001 Issue C	Calculations & LEP Controls			8 May 2024
	Drawing No. A002 Issue C	Site Context Plan			8 May 2024
	Drawing No. A003 Issue C	Demolition Plan			8 May 2024
	Drawing No. A004 Issue C	Lot Amalgamation Plan			8 May 2024
	Drawing No. A005 Issue C	Site Analysis Plan			8 May 2024
	Drawing No. A006 Issue C	Basement Floor Plan			8 May 2024
	Drawing No. A007 Issue C	Ground Floor Plan			8 May 2024
	Drawing No. A008 Issue C	First Floor Plan			8 May 2024
	Drawing No. A009 Issue C	Roof Plan			8 May 2024
	Drawing No. A010 Issue C	West (Streetscape) & South Elevations			8 May 2024
	Drawing No. A011 Issue C	North & East Elevations			8 May 2024
	Drawing No. A012 Issue C	Section			8 May 2024
	Drawing No. A015 Issue C	Shadow Diagram - 9am June 21st			8 May 2024
	Drawing No. A016 Issue C	Shadow Diagram - 12 noon June 21st			8 May 2024
	Drawing No. A017 Issue C	Shadow Diagram - 3pm June 21st			8 May 2024
	Drawing No. A018 Issue C	Cut and Fill Diagram			8 May 2024
	Drawing No. A019 Issue C	Emergency Evacuation Plan - Ground Floor			8 May 2024
	Drawing No. A020 Issue C	Emergency Evacuation Plan - First Floor			8 May 2024
	Drawing No. A021 Issue C	Covered Outdoor Area Diagram - Ground Floor			8 May 2024
	Drawing No. A022 Issue C	Covered Outdoor Area Diagram - First Floor			8 May 2024
	Drawing No. A023 Issue C	Kitchen Detail Plan			8 May 2024
Landscape Plans
2	Drawing No. L-01 Issue B	Landscape Concept Ground Floor Play Area	Outside In Group		27 April 2024
	Drawing No. L-02 Issue B	Landscape Concept First Floor Play Area			27 April 2024
Stormwater Plans
3	Drawing No. SW00 Revision A	Cover Sheet	Vanguard Consulting Engineers		19 April 2024
	Drawing No. SW01 Revision A	Drainage Plan Sheet 1			19 April 2024
	Drawing No. SW02 Revision A	Drainage Plan Sheet 2			19 April 2024
	Drawing No. SW03 Revision B	Drainage Details			9 May 2024
	Drawing No. SW04 Revision A	Basement Drainage Plan			19 April 2024
	Drawing No. SW05 Revision A	Erosion & Sediment Control Plan			19 April 2024
Survey
4	Reference No. 9160 Issue A	Detail and Level Survey of Road Frontage of Lot 8-10 in DP243781	SDG Pty Ltd		24 April 2024
Reports / documents
5	Environmental Noise Impact Assessment			Day Design Pty Ltd	18 April 2024
6	Supplementary Traffic and Parking Advice			McLaren Traffic Engineering	12 April 2024
7	Geotechnical Site Investigation			Geotesta	13 December 2023
8	Service Protection Report			Opal Water Management	21 March 2024
9	Waste Management Plan			3 May 2024
10	Operational Plan of Management			Janssen Designs	6 May 2024

Orders

7. The Court orders that:

1. The Applicant is granted leave to file the amended Development Application as listed at [6] in the judgment.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amended Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $4,500 within 21 days of the date of the order.

3. The appeal is upheld.

4. Development Application No 2758/2023/DA-C, for the demolition of existing structures, amalgamation of lots, and construction of a child care centre for 120 children above basement parking for 30 vehicles and associated site and landscape works on land legally described as Lot 9 and Lot 10 in Deposited Plan 243781 and known as 18-20 Bougainville Road, Glenfield, NSW 2167, is determined by the grant of development consent subject to the conditions of consent at Annexure A.

……………………….

D Dickson

Commissioner of the Court

Annexure A

**********

Decision last updated: 10 July 2024