GMD Campbell Pty Ltd v City of Parramatta Council

[2024] NSWLEC 1116

Land and Environment Court

New South Wales

Medium Neutral Citation:

GMD Campbell Pty Ltd v City of Parramatta Council [2024] NSWLEC 1116

Hearing dates:

Conciliation conference on 22 January 2024

Date of orders:

14 March 2024

Decision date:

14 March 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent's costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $9,000.

(2) The appeal is upheld.

(3) Development Application No 996/2022 for the demolition, tree removal and construction of a two-storey 'Centre Based Child Care Facility' for 83 children with 22 car spaces within the basement level at the property comprised in folio identifiers A/415121 and B/415121 and known as 11 Campbell Street, Northmead NSW 2152 and 13 Campbell Street, Northmead NSW 2152 is approved subject to the conditions included at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations, regs 107, 108

Environmental Planning and Assessment Regulation 2021, s 38

Parramatta (former The Hills) Local Environmental Plan 2012, cl 2.7

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, s 3.22

Texts Cited:

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

GMD Campbell Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Centurion Lawyers (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2023/237489

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings, brought by the applicant under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No 996/2022 (DA) by City of Parramatta Council (Council). The DA seeks consent for the demolition, tree removal, construction of a two-storey child care centre for 83 children with 22 car spaces within the basement level at the property comprised in folio identifiers A/415121 and B/415121 and known as 11 and 13 Campbell Street, Northmead (site).

2. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on 22 January 2024. I presided over the conciliation conference. After more time was given the parties indicated they had come to an agreement in relation to the terms of a decision in the proceedings that would be acceptable to the parties.

3. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, as amended, and subject to agreed conditions. 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.

4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties outlined matters of relevance through a jurisdictional statement provided to the Court on 1 March 2024, explaining how they believed the jurisdictional matters have or could be satisfied. Below, I attend to jurisdictional considerations mindful of this advice from the parties.

Jurisdiction

State Environmental Planning Policy (Resilience and Hazards) 2021

5. Section 4.6 requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed. I accept the advice of the parties that a Preliminary Site Investigation Report dated 23 November 2022 prepared by Australian Geoenviro considers the site suitable for the development and suggests appropriate safeguards by way of conditions of consent. The requirements of s 4.6 are met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

6. The parties advise that Chapter 6 applies to the site as it is within the regulated catchment of Sydney Harbour. The parties advise of their consideration of the matters at sections 6.6(1), 6.7(1), 6.8(1) and 6.9(1). The parties also advise that appropriate stormwater management would be provided (by way of plans and consent conditions) to satisfy the requirements of sections 6.6(2), 6.7(2), 6.8(2) and 6.9(2). Based on this advice I am satisfied in regard to each of these matters.

State Environmental Planning Policy (Transport and Infrastructure) 2021

7. Chapter 3 deals with child care facilities. In relation to s 3.22, I accept the advice of the parties that the DA, as amended, complies with reg 107 (indoor unencumbered space requirements) and reg 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations. That is to say, at least 3.25m² of indoor space per child, and at least 7m² outdoor space would be provided per child. Therefore, the parties agree that no concurrence is required. In the jurisdictional statement, there is reference to other “considerations” but in this instance there are no further requirements for positive jurisdictional findings of the court with respect to this instrument.

Parramatta (former The Hills) Local Environmental Plan 2012

8. Parramatta (former The Hills) Local Environmental Plan 2012 applies to the site. The site is zoned R3 Medium Density Residential and the proposed development is permissible with consent under that zone. The application proposes demolition works and this is permissible with consent under cl 2.7. I accept the advice of the parties that the proposal does not breach any development standards. The parties’ jurisdictional statement indicates how there has been consideration of other relevant matters.

Other matters for consideration under section 4.15(1) of the EPA Act

9. The Hills Development Control Plan 2012 applies. While no jurisdictional matters arise, the parties advise that relevant provisions have been considered.

10. The parties advise the proposal was notified in accordance with requirements and that no submissions were received.

Conclusion

11. Based on the above details, I am satisfied that there is no jurisdictional bar and the parties’ decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

13. The Court notes the advice of the parties that:

1. City of Parramatta Council, as the relevant consent authority, has approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application No 996/2022, to include the following amended plans and documents:

14 Drawing No.	Revision	Title	Prepared By	Date
Architectural Drawings
01	G	Compliance Table	Baini Design	16/02/2024
02	F	Site Context Plan	Baini Design	19/01/2024
03	E	Site Analysis Plan	Baini Design	23/11/2023
04	E	Demolition Plan	Baini Design	23/11/2023
05	F	9am Shadow Diagram	Baini Design	19/01/2024
06	F	12pm Shadow Diagram	Baini Design	19/01/2024
07	F	3pm Shadow Diagram	Baini Design	19/01/2024
08	F	Site Plan	Baini Design	19/01/2024
09	G	Basement/Lower Ground Floor Plan	Baini Design	16/02/2024
10	G	Ground Floor Plan	Baini Design	16/02/2024
11	F	First Floor Plan	Baini Design	19/01/2024
12	F	Roof Plan	Baini Design	19/01/2024
13	F	Elevations	Baini Design	19/01/2024
14	F	Sections	Baini Design
15	F	Kitchen and Laundry Details	Baini Design	19/01/2024
16	F	Nappy Change Details	Baini Design	19/01/2024
17	E	Craft Bench Details	Baini Design	19/01/2024
18	F	Bottle Prep Detail	Baini Design	19/01/2024
19	F	Schedule of Finishes	Baini Design	19/01/2024
20	F	Calculation Plan – Ground Floor	Baini Design	19/01/2024
21	F	Calculation Plan – First Floor	Baini Design	19/01/2024
22	F	Cal Plan – 0-2 Indoor Play Area	Baini Design	19/01/2024
23	F	Cal Plan – 2-3 Indoor Play Area	Baini Design	19/01/2024
24	F	Cal Plan – 3-5 Indoor Play Area	Baini Design	19/01/2024
25	F	Cal Plan – 3-5 Indoor Play Area	Baini Design	19/01/2024
26	F	Solar Study Plan – Ground Floor	Baini Design	19/01/2024
27	F	Solare Study Plan – First Floor	Baini Design	19/01/2024
28	F	Site Coverage Cal. Plan	Baini Design	19/01/2024
29	F	Fencing Detail – Ground Floor	Baini Design	19/01/2024
30	F	Fencing Detail – First Floor	Baini Design	19/01/2024
31	G	Fence Details	Baini Design	16/02/2024
32	F	Streetscape Elevation	Baini Design	19/01/2024
33	F	Access Detail - Basement	Baini Design	19/01/2024
34	F	Access Detail – Ground Floor	Baini Design	19/01/2024
35	F	Access Detail – First Floor	Baini Design	19/01/2024
Landscape Plans
L-01	E	Landscape Concept Front Setback	Outside In Design Group	5/02/2024
L-02	E	Landscape Concept Ground Floor Play Area	Outside In Design Group	5/02/2024
L-03	E	Landscape Concept First Floor Play Area	Outside In Design Group	5/02/2024
L-04	E	Elevation AA Campbell Street Streetscape	Outside In Design Group	5/02/2024
Stormwater Plans
SW001	B	Title Page, Notes and Details Drawing	Mance Arraj	20/12/2023
SW010	C	Concept Stormwater Layout Drawing Basement/ Lower Ground Level	Mance Arraj	5/02/2024
SW011	C	WSUD Catchment Plan, OSD and Bioretention Basin Section Details	Mance Arraj	5/02/2024
SW012	B	OSD Catchment Plan, OSD Tank Plan and Section Details	Mance Arraj	5/02/2024
SW020	B	Concept Stormwater Layout Drawing Ground Level	Mance Arraj	5/02/2024
SW030	B	Concept Stormwater Layout Drawing Level 1	Mance Arraj	5/02/2024
SW040	B	Concept Stormwater Layout Drawing Roof Level	Mance Arraj	5/02/2024
ER001	B	Erosion and Sediment Control Drawing and Notes	Mance Arraj	20/12/2023
Supplementary / Additional Reports
B	Traffic and Parking Assessment	Mclaren Traffic Engineering	22/12/2023
7385-1.1R	D	Environmental Noise Assessment	Day Design Pty Ltd	21/02/2024
2	Plan of Management	2/02/2024
2937	C	OSD & Drainage Calculations	Mance Arraj
B	Stormwater Quality Management Plan	Mance Arraj	12/2023

Orders

14. The Court orders:

1. The Applicant is to pay the Respondent's costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $9,000.

2. The appeal is upheld.

3. Development Application No 996/2022 for the demolition, tree removal and construction of a two-storey 'Centre Based Child Care Facility' for 83 children with 22 car spaces within the basement level at the property comprised in folio identifiers A/415121 and B/415121 and known as 11 Campbell Street, Northmead NSW 2152 and 13 Campbell Street, Northmead NSW 2152 is approved subject to the conditions included at Annexure A.

Peter Walsh

Commissioner of the Court

237489.23 Annexure A

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Decision last updated: 14 March 2024