Goorkiz v Liverpool City Council

[2021] NSWLEC 1050

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Goorkiz v Liverpool City Council [2021] NSWLEC 1050

Hearing dates:

21 and 22 December 2020

Date of orders:

24 February 2021

Decision date:

29 January 2021

Jurisdiction:

Class 1

Before:

Chilcott C and Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No DA-690/2019 seeking approval for the Torrens Title subdivision of land at 45 Fifth Avenue, Austral, also known as Lot 1101 in DP2475, from one lot into two lots, as well as the construction of a 162 place child care centre with basement car parking and associated works, is determined by the grant of consent, subject to the conditions attached at Annexure ‘A’.

(3) The exhibits are returned, with the exception of Exhibits A, B and 1.

Catchwords:

DEVELOPMENT APPLICATION – Subdivision of land – construction of a child care centre – whether proposed development is compatible with the character of the local area – whether the bulk and scale of the proposed development is acceptable – whether imposition of proposed conditions is reasonable – application of Newbury test

Legislation Cited:

Conveyancing Act 1919

Education and Care Services National Regulations

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (No 2-1997)

Cases Cited:

Newbury District Council v Secretary of State for the Environment [1981] AC 578

Texts Cited:

Austral and Leppington North Precincts Transport Assessment

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (July 2020)

Department of Planning and Environment, Liverpool Growth Centres Precincts Development Control Plan, 2013

NSW Department of Planning and Environment, Child Care Planning Guideline, 2017

Category:

Principal judgment

Parties:

George Goorkiz (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2020/179165

Publication restriction:

No

Judgment

1. COMMISSIONERS: Mr George Goorkiz (the Applicant) has appealed the refusal by Liverpool City Council of his development Application No. DA-690/2019 seeking consent for the Torrens title subdivision of land from one lot into two lots, as well as for construction of a 162 place child care centre, with basement car parking and associated works, and tree removal (the Proposed Development) at 45 Fifth Street, Austral, (also identified as Lot 1101 in DP 2475) (the Subject Site).

2. The Subject Site is located within an area currently characterised by small scale agricultural uses and rural residential living. However, the Subject Site and surrounding areas within the suburb of Austral are located within Sydney’s south-west growth centre and are subject to the provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP).

3. More specifically the Subject Site is:

1. located on the northern side Fifth Ave, Austral, and forms a corner lot with Browns Road;

2. located within the Austral Precinct, and is subject to the provisions of the Liverpool Growth Centres Precinct Plan which forms Appendix 8 to the Growth Centres SEPP;

3. zoned R2 Low Density Residential under the provisions of the Growth Centres SEPP and the Liverpool Growth Centres Precinct Plan;

4. situated opposite land on the southern side of Fifth Avenue that is zoned R3 Medium Density Residential under the provisions of the Growth Centres SEPP and the Liverpool Growth Centres Precinct Plan.

4. Development for the purposes of a child care centre is permissible with consent on the Subject Site under its R2 land use zoning.

5. The Applicant has filed the appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), and it is determined pursuant to the provisions of s 4.16 of the EP&A Act.

6. By notice of motion the Applicant sought leave to amend its development application and to rely on amended plans and that leave was granted by the Court on 17 September 2020. Those plans, referred to in the hearing as “Revision R” plans, are now the subject of the appeal.

7. The Respondent confirmed that the development application had been notified as required under the EP&A Act, and the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation), and one submission had been received in response to that notification.

8. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, no site view was undertaken prior to the commencement of the hearing, and the hearing was conducted by Microsoft Teams.

9. At the commencement of the hearing the Parties agreed that, on the basis of the Applicant’s amended plans:

1. the Proposed Development was compliant with all applicable development standards within the Growth Centres SEPP and, in particular, with the development standards within the Liverpool Growth Centres Precinct Plan which is an Appendix 8 of that SEPP;

2. the Proposed Development was compliant with all applicable controls within the Liverpool Growth Centres Precincts Development Control Plan (LDCP), or where it did not meet those controls it satisfied the controls’ objectives such that it represented a reasonable alternative solution to which flexibility in the application of those controls should be applied pursuant to the provisions of s 4.15(3A) of the EP&A Act;

3. the principle matters remaining in contention in the appeal related to the acceptability or otherwise of the character, and the bulk and scale, of the Proposed Development, particularly in relation to the provisions of the Child Care Planning Guideline 2017.

10. The Parties also confirmed that a number of proposed conditions of consent remained in dispute between them and would require resolution by the Court (see below at [44]].

Statutory context

Environmental Planning and Assessment Act 1979

11. Section 4.15(3A) of the EP&A Act provides as follows:

(3A) Development control plans

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c)  may consider those provisions only in connection with the assessment of that development application.

12. Section 4.17(1) of the EP&A Act establishes the reasons for which conditions of development consent can generally be imposed and provides as follows:

(1) A condition of development consent may be imposed if -

(a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or

(b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or

(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or

(d) it limits the period during which development may be carried out in accordance with the consent so granted, or

(e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or

(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or

(g) it modifies details of the development the subject of the development application, or

(h) it is authorised to be imposed under section 4.16(3) or (5), subsections (5)–(9) of this section or section 7.11, 7.12, 7.24 or 7.32.

13. Section 7.11 of the EP&A Act establishes the basis upon which a condition may be imposed in relation to a development consent requiring a contribution to be made towards the provision or improvement of amenities or services, and s 7.11(1) states that:

(1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring—

(a) the dedication of land free of cost, or

(b) the payment of a monetary contribution,

or both.

14. Section 7.13 concerns the circumstances under which a condition of the form identified in s 7.11 of the EP& A Act can be imposed, and provides as follows:

(1) A consent authority may impose a condition under section 7.11 or 7.12 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).

(2) However, in the case of a consent authority other than a council—

(a) the consent authority may impose a condition under section 7.11 or 7.12 even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but

(b) the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out.

(3) A condition under section 7.11 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction.

(4) A condition under section 7.12 that is of a kind allowed by, and determined in accordance with, a contributions plan (or a direction of the Minister under this Division) may not be disallowed or amended by the Court on appeal.

Environmental Planning and Assessment Regulation 2000

15. The following provisions of the EP&A Regulation are of relevance in this appeal:

1. section 49(1), which requires that, inter alia, a development application must be made by an owner of the land that is the subject of the application or with the consent of the owner of the land;

2. section 77(1), which concerns notification of development applications as follows:

As soon as practicable after a development application is lodged with the consent authority, the consent authority must -

(a) publish notice of the application on the consent authority’s website, and

(b) give notice of the application to -

(i) the public authorities (other than relevant concurrence authorities or approval bodies) that, in the opinion of the consent authority, may have an interest in the determination of the application, and

(ii) in the case of a development application other than designated development - the persons that, in the opinion of the consent authority, own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development).

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

16. Development on the Subject Site is subject to the provisions of the Growth Centres SEPP.

17. In particular, the provisions of Appendix 8 of that document relating to development within the Leppington Growth Centre Precincts, applies, inter alia, to the Austral Precinct within which the Subject Site is located.

18. The Subject Site is zoned R2 Low Density Residential under the provisions of cl 2.3 of Appendix 8 of the Growth Centres SEPP, and development for the purposes of a child care centre is permissible with consent in that zone.

19. The objectives of the R2 Low Density Residential zone are:

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 allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

20. The Residential Density Map within the Growth Centres SEPP applicable to the Subject Site (Sheet RDN_012) sets a minimal dwelling density of 20 dwellings per hectare for the Subject Site.

State Environmental Planning Policy No 55 - Remediation of Land

21. Clause 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) requires:

7 Contamination and remediation to be considered in determining development application

(1) 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.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4) The land concerned is -

(a) land that is within an investigation area,

(b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital – land -

(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

22. The Applicant has confirmed that a Detailed Site Investigation Report had been prepared by Envirotech dated 2 August 2019 in fulfillment of the requirements of cl 7 of SEPP 55, and the Subject Site was assessed to be suitable for its proposed use as a child care centre without the need for remedial action.

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

23. The Proposed Development is subject to the provisions of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017(the Child Care SEPP), which aims to facilitate the effective delivery of educational establishments and early education and care facilities across the State of NSW.

24. Clause 8(1) of the Child Care SEPP provides that:

Subject to subclause (2), if there is an inconsistency between this Policy and another environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

25. The following further provisions of the Child Care SEPP are of particular relevance in this appeal:

1. Clause 22, which provides that the consent authority must not grant development consent to development to which this clause applies except with the concurrence of the Regulatory Authority, and specifically cl 22(1) which requires that:

(1)  This clause applies to development for the purpose of a centre-based child care facility if -

(a)  the floor area of the building or place does not comply with regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, or

(b)  the outdoor space requirements for the building or place do not comply with regulation 108 (outdoor unencumbered space requirements) of those Regulations.

(2)  The consent authority must not grant development consent to development to which this clause applies except with the concurrence of the Regulatory Authority.

2. Clause 23, concerning centre-based child care facilities, the definition of which confirms the Proposed Development is such a facility, provides matters for consideration by consent authorities as follows:

Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development.

3. Clause 25, which provides non-discretionary development standards for a centre-based child care facility, as follows:

(1) The object of this clause is to identify development standards for particular matters relating to a centre-based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters.

(2) The following are non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of a centre-based child care facility—

(a) location—the development may be located at any distance from an existing or proposed early education and care facility,

(b) indoor or outdoor space

(i) for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies—the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or

(ii) for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies—the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause,

(c) site area and site dimensions—the development may be located on a site of any size and have any length of street frontage or any allotment depth,

(d) colour of building materials or shade structures—the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area.

(3) To remove doubt, this clause does not prevent a consent authority from—

(a) refusing a development application in relation to a matter not specified in subclause (2), or

(b) granting development consent even though any standard specified in subclause (2) is not complied with.

4. Clause 26, which concerns the applicability of the provisions of development control plans in relation to centre-based child care facilities, and which provides as follows:

(1) A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility -

(a) operational or management plans or arrangements (including hours of operation),

(b) demonstrated need or demand for child care services,

(c) proximity of facility to other early education and care facilities,

(d) any matter relating to development for the purpose of a centre-based child care facility contained in -

(i) the design principles set out in Part 2 of the Child Care Planning Guideline, or

(ii) the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates).

(2) This clause applies regardless of when the development control plan was made.

Child Care Planning Guideline

26. The Child Care Planning Guideline (the Guideline) states that:

“State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the SEPP) determines that a consent authority must take into consideration this Guideline when assessing a development application (DA) for a centre-based child care facility (‘child care facility’).

It also determines this Guideline will take precedence over a Development Control Plan (DCP), with some exceptions, where the two overlap in relation to a child care facility”.

27. The objectives of the Guideline are to:

“• promote high quality planning and design of child care facilities in accordance with the physical requirements of the National Regulations;

• ensure that child care facilities are compatible with the existing streetscape, context and neighbouring land uses;

• minimise any adverse impacts of development on adjoining properties and the neighbourhood, including the natural and built environment;

• deliver greater certainty to applicants, operators and the community by embedding the physical requirements for service approval into the planning requirements for child care facilities.”

28. Section 2 of the Guideline provides design quality principles for centre-based child care facilities in relation to context, built form, adaptive learning spaces, sustainability, landscape, amenity and safety. Principles 1 and 2 of the Guideline, which concern context and built form, were identified by the Respondent as being of particular relevance in this appeal. They provide as follows:

1. Principle 1 – Context

“Good design responds and contributes to its context, including the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions.

Well-designed child care facilities respond to and enhance the qualities and identity of the area including adjacent sites, streetscapes and neighbourhood.

Well-designed child care facilities take advantage of its context by optimising nearby transport, public facilities and centres, respecting local heritage, and being responsive to the demographic, cultural and socio-economic makeup of the facility users and surrounding communities”

2. Principle 2 – Built Form

“Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the surrounding area.

Good design achieves an appropriate built form for a site and the building’s purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Good design also uses a variety of materials, colours and textures.

Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

Contemporary facility design can be distinctive and unique to support innovative approaches to teaching and learning, while still achieving a visual appearance that is aesthetically pleasing, complements the surrounding areas, and contributes positively to the public realm.”

29. Section 3 of the Guideline identifies matters for consideration which support the design principles and must be considered by the consent authority when assessing a DA for a child care facility, and these include the following matters that are of relevance in this appeal:

1. Section 3.2, which concerns local character, streetscape and the public domain interface, and which includes matters for consideration including:

1. Consideration C5, which has the following objective, and detailed considerations:

“Objective: To ensure that the child care facility is compatible with the local character and surrounding streetscape

C5

The proposed development should:

contribute to the local area by being designed in character with the locality and existing streetscape;

reflect the predominant form of surrounding land uses, particularly in low density residential areas

recognise predominant streetscape qualities, such as building form, scale, materials and colours

include design and architectural treatments that respond to and integrate with the existing streetscape

use landscaping to positively contribute to the streetscape and neighbouring amenity

integrate car parking into the building and site landscaping design in residential areas.”

2. Section 3.3, which concerns building orientation, envelope and design, and which includes matters for consideration including

1. Consideration C15, which has the following objective, and detailed considerations:

“Objective: To ensure that the built form, articulation and scale of development relates to its context and buildings are well designed to contribute to an area's character.

C15

The built form of the development should contribute to the character of the local area, including how it:

respects and responds to its physical context such as adjacent built form, neighbourhood character, streetscape quality and heritage

contributes to the identity of the place • retains and reinforces existing built form and vegetation where significant

considers heritage within the local neighbourhood including identified heritage items and conservation areas

responds to its natural environment including local landscape setting and climate

contributes to the identity of place”

Liverpool Growth Centres Development Control Plan

30. Development on the Subject Site is also subject to the provisions of the LDCP.

31. Section 2.0 of LDCP provides Precinct Planning Outcomes for Precincts to which LDCP applies, including the Austral Precinct, which under section 2.2 provides Indicative Layout Plans for each precinct that set out, inter alia, the density and types of housing that are preferred in each part of the Austral Precinct.

32. Section 3.0 of LDCP provides guidance for neighbourhood and subdivision design within Precincts to which LDCP applies. As noted above (at [20]), the Subject Site is subject to minimum housing of 20 dwellings per hectare, and based on this minimum density target the following sections of LDCP apply to the Proposed Development:

1. Section 3.1.1 of LDCP, concerning residential density, which:

1. has an objective to establish the desired character of residential areas;

2. notes that an area with a dwelling density of 20 dwellings per hectares has the following typical characteristics:

“Predominantly a mix of detached dwelling houses, semi-detached dwellings and dual occupancies with some secondary dwellings.

Focused areas of small lot dwelling houses in high amenity locations.

At 20dw/Ha, the occasional manor home on corner lots.

Single and double storey dwellings.

Mainly suburban streetscapes, the occasional urban streetscape (see Figure 3-2).”

3. provides the following illustrations within Figure 3.2 that illustrate the desired future streetscape character in suburban and urban streetscapes in the surrounding area of the Subject Site:

2. Section 3.1.2 concerning block and lot layout identifies that:

1. the minimum lot frontage for front loaded lots in an area with a minimum density of 20 dwellings per hectare is 7m;

2. in density bands that are equal to, or greater than, 20 dwellings per hectare, no more than 40% of the total residential lots proposed in a street block may have a frontage of less than 10m wide; and

3. the maximum number of attached or abutted dwellings permissible in a set is six, noting that the definition of an attached dwelling in the Growth Centres SEPP states that an attached dwelling means a building containing three or more attached dwellings:

1. each attached to another dwelling by a common wall;

2. each sited on its own lot; and

3. with none of the dwellings located above any part of another dwelling.

Contentions

33. As noted above (at [9(3)]), remaining contentions in this appeal concerned the character and the bulk and scale of the Proposed Development.

34. The Court was assisted in its consideration of these questions by the joint report and oral evidence of the expert town planners, Ms Mairead Hawes, for the Applicant, and Mr Peter Oriehov, for the Respondent. These experts also provided a supplementary joint report in relation to a contention (contention 6.5) concerning the bulk and scale of the Proposed Development.

35. A further joint expert report, prepared by Ms Hawes with the Respondent’s Land Development Engineer, Mr Charlie Caraballo, was tendered as evidence at the hearing. This report had addressed a contention, referred to at the hearing as “contention 6.4”, concerning temporary vehicular access.

Evidence of Mr Caraballo

36. In response to an objection raised by the Applicant, and having considered the Respondent’s submissions in relation to the objection, the Court ruled that certain of the evidence provided by Mr Caraballo, within his joint report with Ms Hawes, had addressed matters that were not raised within contention 6.4 and should not be read. That evidence concerned the potential upgrade of existing roads in the vicinity of the Proposed Development.

37. The Respondent submitted that, notwithstanding the Court’s ruling in relation to Mr Caraballo’s evidence in the joint report, it should be permitted to put questions to Mr Caraballo, or in the alternative to Mr Oriehov, in relation to the potential upgrade of existing roads in the vicinity of the Proposed Development. In making this submission, the Respondent acknowledged that the matter of the existing roads upgrades did not fall within Mr Oriehov’s work responsibilities as a planner at Council, and nor was it a matter in which he had specific expertise.

38. In response, the Applicant said that, as a matter of procedural fairness, neither Mr Caraballo nor Mr Oriehov should be permitted to provide evidence on the subject of potential road upgrades because:

1. this would amount to introducing evidence that had not been adduced under a direction of the Court; and

2. the Applicant could not deal with such evidence being introduced so late in the proceedings.

39. Having considered the further submissions of the Parties, the Court agreed with the submission of the Applicant that the Respondent’s request to put questions to Mr Caraballo, or in the alternative to Mr Oriehov, in relation to potential upgrades to existing roads, would prejudice the Applicant, and should not be supported.

40. As a consequence of the Court’s rulings in relation to Mr Caraballo’s evidence, the Parties accepted that, consistent with the agreement of the experts, matters pertaining to temporary vehicular access could be resolved via the imposition of conditions consent, and there was no utility in either Ms Hawes and Mr Caraballo providing further oral evidence in relation to their joint report.

41. Notwithstanding the Court’s rulings in relation to Mr Caraballo’s evidence, the Court agreed that:

1. the subject of potential road upgrades in the vicinity of the Proposed Development could be the subject of legal submissions by the Parties; and

2. the Parties legal submissions in closing should address the Respondent’s proposed conditions of consent requiring that the Applicant undertake certain infrastructure works related to proposed upgrades to existing roads, and the requirement that these works should be undertaken by the Applicant at no cost to Council.

42. The Parties accepted these rulings in relation to the conduct of the proceedings.

Remaining contentions

43. As a consequence of the evidence of the expert planners and the submissions of the Parties, we have framed the remaining matters for resolution in the appeal, and the order in which they should be addressed, as follows:

1. is the character of the Proposed Development compatible with the local character and surrounding streetscape?

2. is the bulk and scale of the Proposed Development acceptable?

44. If, following consideration of these questions, it was agreed that the Proposed Development should be approved, it would then be necessary to consider the Parties’ competing submissions in relation to Respondent’s proposed conditions of consent tendered as evidence at the hearing. Those submissions concerned the following conditions:

1. Proposed conditions 10 and 11 in relation to requirements for half road construction along the frontages of proposed lots 1 and 2;

2. Proposed conditions 21 and 37 in relation to requirements for street lighting upgrade works;

3. Proposed conditions 31, 32 and 33, concerning roads and intersection treatments, which the Respondent agreed could be deleted;

4. Proposed condition 92, concerning footpaths, which the Respondent agreed was not required;

5. Proposed condition 106, concerning the provision of a splay corner at the intersection of Browns Road with Fifth Avenue, and in relation to which the Parties proposed alternate conditions;

6. Proposed condition 115, concerning overland flows and fencing, and which while the subject of a submission by the Respondent, remained agreed and unaltered in the final form of conditions filed by both Parties;

7. Proposed condition 117, concerning the requirement for a restriction as to user, pursuant to s 88B of the Conveyancing Act 1919, requiring that construction of the Proposed Development be in accordance with the consent, if granted, and which the Parties agreed could be deleted;

8. Proposed condition 118, concerning the requirement for a restriction as to user, pursuant to s 88B of the Conveyancing Act 1919 to be imposed in relation to future road construction, and in relation to which the Parties agreed that a word “condition” could be deleted as it was not required in the final condition;

9. Proposed condition 119, concerning the dedication of land in relation to a splay on the corner of Browns Road and Fifth Avenue, and in relation to which the Parties agreed could be deleted as it was superfluous subject to resolution of proposed condition 106 (see above at [44(5)]);

10. Proposed condition 121, concerning an engineering bond, which the Parties agreed could be retained in the form drafted by the Respondent;

11. Proposed condition 139, concerning the number of children between aged two and three years of age that would be permitted to be accommodated by the Proposed Development, and in relation to which the Parties agreed that a minor typographical error required correction to replace the number ‘15’ with the number ‘40’.

Is the character of the Proposed Development compatible with the local character and surrounding streetscape?

45. As noted previously (see above at [25(1)]), the Child Care SEPP requires that a consent authority must take into consideration the provisions of the Guideline when assessing a development application for a centre-based child care facility.

46. The Guideline itself notes that the provisions of the Guideline will generally take precedence over the provisions of a development control plan other than in relation to building height, side and rear setbacks and car parking rates.

47. The Guideline also notes that its design quality principles establish the broad design context for new proposals for child care facilities.

48. The requirements of Design Quality Principle 1 concerning context were provided above (at [28(1)]), and includes a statement that well designed child care facilities respond to and enhance the qualities and identity of the area including adjacent sites, streetscapes and neighbourhood.

49. Consideration C5 of the Guideline (see above at [29(1)]) gives effect to Design Principle 1 and seeks to ensure that child care facilities are compatible with the local character and surrounding streetscape, and specifically identifies the manner by which this should be assessed.

50. Within their joint report, the expert planners differed in their assessment of the compatibility of the Proposed Development with the local character and surrounding streetscape as follows:

1. Ms Hawes was of the opinion that the built form of the Proposed Development did reflect the desired future character of the local area in the vicinity of the Subject Site because it was consistent with the mix of predominantly suburban with some urban streetscapes as envisaged within LDCP for sites with a low density residential zoning and a minimum dwelling density of 20 dwellings per hectare.

2. Mr Oriehov was of the opinion that the Proposed Development did not reflect the desired future character of the local area in the vicinity of the Subject Site because, in his opinion, that desired future character would comprise predominantly single storey detached houses with similar width frontages.

51. In evidence at the hearing the Respondent’s expert planner, Mr Oriehov, agreed that, contrary to his written evidence within the joint expert report of the planners, the desired future character of the local area:

1. would be created through the combined visual catchment of a range of zones, and is not just that of the immediate R2 residential zone; and

2. was not of a single story detached built form, but included, consistent with the suburban and urban streetscapes illustrated above (at [32(1)(c)]), a two-storey built form which included attached dwellings and multi dwelling housing.

52. Mr Oriehov also conceded in oral evidence that, as stated by Mr Hawes in her written evidence the built form of the Proposed Development did reflect the desired future character of the local area in the vicinity of the Subject Site as represented within section 3.0 of LDCP that provides controls in relation to neighbourhood and subdivision design within the Liverpool Growth Centres Precincts, including the Austral Precinct.

53. In their closing submissions:

1. The Respondent said that, while attached dwellings may form part of a future desired character in the area that includes the Subject Site,

1. they would not be the predominant form of development envisaged for the area;

2. no examples of that attached dwelling character had been approved in the area of the Subject Site to date;

3. the Proposed Development had a horizontal character and the desired future character of the area of the Subject Site would have a more vertical character; and

4. for reasons provided above (at [(a)], [(b)] and [(c)]) the Proposed Development did not reflect the desired future character of the area and did not comply with consideration C5 of the Guideline;

2. The Applicant submitted that the Proposed Development was consistent with the desired future character of the area around the Subject Site because:

1. the anticipated streetscape of the area would include two storey attached dwellings of a modern terrace appearance and with a minimum length of 42m;

1. as agreed by the expert planners in their evidence:

1. while the Proposed Development had a commercial typology, the typology of buildings anticipated within the area of the Subject Site need not all be the same and need not all be of a residential typology; and

2. the form of the Proposed Development was consistent with the streetscape anticipated for the area of the Subject Site.

54. Having considered the evidence of the expert planners, including the oral evidence of Mr Oriehov at the hearing, as well as the submissions of the Parties, we have concluded that, consistent with the evidence of the expert planners (see above at [50(1)], [51] and [52]) the character of the Proposed Development:

1. is compatible with the local character and surrounding streetscape envisaged for the Subject Site within the Growth Centres SEPP and LDCP; and

2. achieves the objective of consideration C5 of the Guideline (see above at [29(1)(a)]) and is consistent with Design Principle 1 of the Guideline (see above at [28(1)]).

Is the bulk and scale of the Proposed Development acceptable?

55. The requirements of Design Quality Principle 2 concerning built form were provided above (at [28(2)]) and includes a statement that good design achieves a scale, bulk and height appropriate to the existing or desired future character of the surrounding area.

56. Consideration C15 of the Guideline (see above at [29(1)(b)]) gives effect to Design Principle 2 and seeks to ensure that the built form of a development should contribute to the character of the local area, and identifies the manner by which this should be assessed.

57. The bulk and scale of the Proposed Development was the subject of evidence within the joint report of the expert planners as well as oral evidence from these experts at the hearing.

58. Within their supplementary joint report, the Respondent’s expert planner, Mr Oriehov, confirmed that, for reasons enunciated within the Respondent’s contentions, the proposed Development was inconsistent with the provisions of consideration C15 of the Guideline.

59. The Applicant’s expert planner, Ms Hawes, said it was her view that the bulk and scale of the Proposed Development was acceptable on the basis that:

1. as she stated within the supplementary report concerning contention 6.5:

1. the Proposed Development is of a scale commensurate with the applicable controls and has been designed to ensure that it does not result in any amenity impacts in terms of noise, privacy, overshadowing, access and car parking;

2. the Subject Site is a corner block and presents as an articulated and varied built form to provide visual interest along both Browns Road and Fifth Avenue at a scale that reflects the applicable building height development standard of 9m as well as the setbacks required under LDCP;

3. the land to the south of the Subject Site on Fifth Avenue is zoned R3 Medium Density Residential with a height of buildings development standard of 12m, and the Proposed Development provides a transition between higher density residential areas to lower density residential areas located north of the Subject Site;

4. the Proposed Development has a predominant single storey built form with an upper level on its eastern side that does not result in any potential overlooking or noise related impacts;

5. the bulk and scale of the proposed Development is consistent with the desired future character envisaged for the Subject Site and the surrounding area;

2. as she explained in oral evidence it was her opinion that:

1. the planning controls within LDCP envisaged a built form of up to six terrace style attached dwellings each sitting on its own lot with a minimum lot frontage of 7m and together representing a minimum total length of 42m;

2. although the length of the Proposed Development was, in her estimation, 55.6m in length and this exceeded the minimum total length of 42m identified above, the 7m lot frontage was a minimum, and that it was possible that a row of six terrace style attached dwellings might have a length similar to that of the Proposed Development;

3. the design of the Proposed Development included articulations along its southern and northern elevations which broke up the presentation of the building into three elements and that this provided an acceptable response to Principle 2 of the Guideline concerning built form;

4. while the typology of the Proposed Development differed to that of a residential building, it was her opinion that this was to be expected and, indeed, was appropriate as the Proposed Development was a commercial development that, while being compatible with the desired future character of the area, ought to have a typology reflecting its purpose; and

5. the built form of the Proposed Development:

1. was reflective of the desired future character of the surrounding area of the Subject Site;

2. reflected the building’s purpose;

3. included a satisfactory level of articulation and manipulation of building elements, including a 600mm deep recess to a portion of the southern elevation to visually separate the building forms and create a shadow line;

4. included the use of a variety of materials, colours and textures; and

5. for the reasons provided above (at [i] to[iv]), satisfied Design Principle 2 within the Guideline.

60. In oral evidence, the Respondent’s expert planner, Mr Oriehov, agreed with the Applicant that:

1. the Proposed Development does not give rise to any amenity impacts, other than in relation to bulk and scale;

2. the Proposed Development complies with all numerical controls applicable to development on the Subject Site;

3. development on the Subject Site does not need to be of residential form, although it should be compatible with the character of the surrounding area;

4. the controls applicable to the Subject Site permit a variety of building typologies on the Subject Site including development with a commercial typology;

5. development on the Subject Site:

1. could include a built form of two or more storeys; and

2. contrary to his written evidence in the joint expert report with Ms Hawes, would not include a predominantly single storey built form.

61. Mr Oriehov concluded his evidence by stating that, in his opinion:

1. the Proposed Development would be perceived as having a monolithic built form; and

2. he would expect that a building with a built form length of the Proposed Development to include breaks along its length.

62. In closing submissions:

1. the Respondent said that:

1. although attached dwellings, such as a row of terraces, may represent a permissible built form on the Subject Site, and may form part of the future character of the surrounding area, such forms of development had not currently been approved, and would not be the predominant form of development in the area of the Subject Site;

2. approval of the Proposed Development would establish a poor precent for development in the area of the Subject Site;

2. the Applicant said that:

1. the built form of development on the Subject Site was required to be compatible with the character of the surrounding area, as envisaged within LDCP, but did not have to be of a particular building typology;

2. the typology of the Proposed Development was not required to be residential in form, and could reflect a commercial typology;

3. bulk and scale of the Proposed Development, including its length, was consistent with that envisaged under the controls applicable to the Subject Site in LDCP;

4. the design of Proposed Development, while not including breaks, did include high levels of modulation that reduced the visual impact of its length including articulations, height, materials and finishes and changes in roof form.

63. Having considered the evidence of the expert planners and the submissions of the Parties, we have concluded as follows:

1. a built form with a bulk and scale of the Proposed Development is not inconsistent with the controls within LDCP because:

1. while the Applicant, supported by the evidence of Mr Oriehov, had submitted that the Proposed Development should include breaks in its built form for that form to be acceptable:

1. there is no control within LDCP that would limit the maximum lot frontage in relation to a terrace style development on the Subject Site, or elsewhere in the Austral Precinct on land zoned R2;

2. Mr Oriehov accepted that a built form length reflective of a series of up to six attached terraces each on its own lot with Each lot having a minimum lot frontage of 7m was envisaged by the controls in LDCP;

3. as identified above (at [32(2)(b)]), LDCP does state that in density bands that are equal to, or greater than, 20 dwellings per hectare, no more than 40% of the total residential lots proposed in a street block may have a frontage of less than 10m wide;

4. LDCP envisages that the form of development, on at least some lots in the area of the Subject Site, would reflect a built form of at least 10m width;

2. as submitted by the Applicant (see above at [62(2)(d)]), the Proposed Development does include a variety of modulations that assist in reducing any visual impact that may arise from the bulk and scale of the Proposed Development;

3. consistent with evidence of Mr Hawes above (at [59]) and with the agreements of Mr Oriehov in his oral evidence above (at [60]), the bulk and scale of the Proposed Development is consistent with a form of development that is consistent with that envisaged for the Subject Site and its surrounding area within the Austral precinct; and

4. based on the conclusions above at [a], [b] and (c), the Proposed Development achieves the objective of consideration C15 of the Guideline because its built form, articulation and scale relates to the desired future context of its surrounding area and the typologies of buildings envisaged for that area.

64. Based on our conclusions above (at [63]), we further conclude that the bulk and scale of the Proposed Development is acceptable.

The Applicant’s Proposed Development should be approved

65. As we have concluded that the Proposed Development is compatible with its envisaged future local character and surrounding streetscape (see above at [54]), and that its bulk and scale are also acceptable (see above at [64]) we further conclude that the Proposed Development should be approved, subject to conditions.

Conditions of consent

66. During the hearing the Respondent tendered its proposed conditions of consent for the application should the Court conclude that the appeal be determined through a grant consent to the Applicant’s Proposed Development.

67. As the Court has so concluded, it is necessary to resolve matters raised at the hearing in relation to the Respondent’s proposed conditions of consent. The conditions that were the subject of submissions by the Parties were identified above (at [10] and [44]). We have considered the submissions of the Parties in relation each of the conditions and we have concluded as follows:

Proposed condition 2

68. The Parties agreed that the proposed condition 2 should be worded as follows:

“All roadworks and drainage works required to effect the consented development shall be undertaken at no cost to Liverpool City Council”.

Proposed conditions 10 and 11

69. The Parties agreed that:

1. paragraph (b) of proposed condition 10 should be deleted, but the Respondent pressed the imposition of the remainder of proposed condition 10, as amended, which would then read:

“10. Prior to the issue of a Construction Certificate for building or subdivision works the Certifying Authority shall ensure that a S138 Roads Act application, including the payment of application and inspection fees, has been lodged with Liverpool City Council (being the Roads Authority under the Roads Act), for provision of:

Half road construction, concrete footpath/share paving, concrete 150mm kerb and guttering, stormwater drainage, street trees and associated works in the Browns Road (site frontage of proposed lot 2) and Fifth Avenue (site frontage of proposed lot 1 & 2), Austral.

Engineering plans are to be prepared in accordance with the development consent, Liverpool City Council’s Design Guidelines and Construction Specification for Civil Works, Austroads Guidelines and best engineering practice.

Road No.	Road Reserve Width	Carriageway	Verge	Concrete Footpath paving	ESA
Browns Road along frontage of development for 35 metres to the north of its intersection with Fifth Avenue.	20.115m	Width 6m (half road), 3% crossfall	4.55m, 3% crossfall	2.5m share path	2x106
Full frontage of site along Fifth Avenue	20.115m	Width 4.5m (half road), 3% crossfall	5.55m, 3% crossfall	1.5m	3x105

Note:

Stormwater drainage shall be taken to the western side of Browns Road, with appropriate tail out measures.

Where Liverpool City Council is the Certifying Authority for the development the Roads Act approval for the above works may be issued concurrently with the Construction Certificate.

All works shall be undertaken at no cost to Liverpool City Council.”

2. proposed condition 11 should only be imposed if proposed condition 10, as amended, were imposed.

70. In their submissions concerning proposed condition 10, as amended,:

1. the Respondent said that:

1. the proposed condition was not of the form identified under the provisions of s 7.11 of the EP&A Act as it was not a condition that sought either the dedication of land free of cost, or the payment of a monetary contribution, or both;

2. as the condition was not one with the form provided for under s 7.11 of the EP&A Act it was also not subject to the provisions of s 7.13 of the EP&A Act;

3. the proposed condition was one that could be imposed by Court pursuant to the provisions of s 4.17(1) of the EP&A;

4. it was reasonable to impose proposed condition 10 because:

1. the Applicant’s Traffic and Parking Impact Statement, prepared by Thompson Stanbury Associates (the TSA Report), projected an increase in use of the Fifth Avenue and Browns Road as a consequence of the Proposed Development as follows:

• 130 morning peak hour vehicle trips; and

• 114 evening peak hour vehicle trips.

2. the upgrade of the roads that would be required under proposed condition 10 is required to facilitate access to the child care centre by staff or customers who arrive at the centre by foot or who park on the street outside the Proposed Development;

2. the Applicant said that:

1. while the Proposed Development would benefit from any upgrade of Fifth Avenue and Browns Road, the Proposed Development does not generate a need for the upgrades sought by the Respondent through imposition of proposed condition 10;

2. both Fifth Avenue and Browns Road are adequate to service the needs of customers and staff travelling to and from the Proposed Development;

3. all staff and customers travelling to and from the Proposed Development prior to the broader development of the area as a residential precinct will do so by car and, as required under the Applicant’s proposed plan of management, will access the child care centre by parking in the basement car park and using internal access routes;

4. while proposed condition 10 could be imposed pursuant to the provisions of s 4.17(1) of the EP&A Act, it could only be imposed in circumstances where it was consistent with the so-called Newbury tests identified in Newbury District Council v Secretary of State for the Environment [1981] AC 578 (at [599] to [600]), including the second Newbury test that the proposed condition should fairly and reasonably relate to the needs of the Proposed Development. For reasons provided above (at [(a)], [(b)]and [(c)]) the Applicant said the Proposed Development did not generate a need for the works required under proposed condition 10, and so could not be reasonably imposed as a condition of consent for the Proposed Development;

5. the Respondent had structured proposed condition 10 to bypass the provisions of ss 7.11 and 7.13 of the EP&A Act. The Applicant said that these sections of the EP&A Act provided the proper basis for the Respondent to propose the imposition a condition requiring the provision of, or increase in, the demand for public amenities and public services within the local area of the Proposed Development.

71. Our conclusions in relation to the Respondent’s proposed imposition of condition 10, as amended, are:

1. the condition as drafted cannot be imposed pursuant to s 7.11 of the EP&A Act as any such condition must be of a form that requires either the dedication of land or the payment of money, and proposed condition 10 does not require either of these actions;

2. while we agree that proposed condition 10 could be imposed pursuant to the provisions of s 4.17 of the EP&A Act, we agree with the Applicant that the proposed condition does not satisfy the second Newbury test as the proposed condition does not fairly and reasonably relate to the needs of the Proposed Development for the reasons provided in its submission (above at [70(2)(a)], [70(2)(b)] and [70(2)(c)] which we adopt and because:

1. in our assessment both Browns Road and Fifth Avenue provide a 6m wide pavement between unsealed shoulders which will facilitate adequately the arrival and departure of vehicles bringing staff and customers to the Proposed Development;

2. all staff and customers of the Proposed Development would be required, under the Applicant’s proposed plan of management, to park within the child care centre’s basement carpark when arriving at, or departing from, the Proposed Development;

3. as identified within the TSA Report, the broader traffic impacts of development within the Austral Precinct have been separately assessed in the Austral and Leppington North Precincts Transport Assessment and within which the future transport needs of the Precinct have also been addressed. In our assessment, this further reduces any nexus that the Respondent might have sought to establish between the Proposed Development and proposed upgrades both Browns Road and Fifth Avenue.

72. As a consequence of our conclusions above (at [71]) we have further concluded that proposed condition 10, as amended, should not be imposed with the grant of consent for the Proposed Development.

73. As proposed condition 10 is not to be imposed as part of the grant of consent, as identified above at [69(2)], proposed condition 11 should also not be imposed with the grant of consent.

Proposed conditions 21 and 37

74. The Respondent has proposed the imposition of proposed condition 21, concerning the provision of street lighting, should the Court conclude that the Proposed Development be subject to the grant of consent. Proposed condition 21 is:

21. The applicant/developer shall upgrade the street lighting system for entire frontage of the development including any side streets. Any street light poles shall be multi-function poles including all necessary accessories. The specification and accessories details are to be obtained from the Infrastructure and Environment Group of Council. The applicant/developer shall engage services of Endeavour Energy accredited ASP Level 3 service provider to prepare electrical design and obtain certification from Endeavour Energy. The electrical design shall include undergrounding of existing aerial power lines and communication cables for entire frontage of the development including frontage to side streets. The approved design shall be submitted to Council for review and approval prior to any construction works

75. The Respondent had submitted that this condition should be imposed because the street lighting identified in the condition would be required in mid-winter by customers and staff of the child care centre for the purposes of access to the centre from the street.

76. The Applicant said that, consistent with its submissions in relation to proposed condition 10 (see above at [70(2)]),:

1. the street lighting envisaged under proposed condition 21 would not be required by either its customers or staff because all those using the Proposed Development were required under its plan of management to access the property, including at mid-winter, via its basement car park which would be well lit.

1. as the Applicant’s proposed plan of management:

1. requires that staff and customers access the Proposed Development by parking in its basement car park;

2. its structure and content are consistent with the planning principles for plans of management enunciated within the decision in Renaldo plus 3, it would be unreasonable to assume non-compliance with the proposed plan of management;

3. as it would be unreasonable to assume non-compliance with the proposed plan of management, and as no access to the Proposed Development is proposed from Browns Road, it would be unreasonable to impose proposed condition 21 as part of a grant of consent for the Proposed Development;

77. The Applicant also submitted that proposed condition 21, if imposed, would require the installation of street lighting along all frontages of the Subject Site, including on Browns Road which is a side road, for the purposes of facilitating access to the Proposed Development, but no access is proposed to the child care centre via Brown’s Road.

78. Having considered the submissions of the Parties we have concluded that proposed condition 21 should also not be imposed with the grant of consent for the Proposed Development, for the reasons identified by the Applicant (see above at [76] and [77]) which we adopt.

79. The Parties agreed at the hearing that proposed condition 37, which also concerned street lighting, should not be imposed, and as a consequence of our conclusion above (at [78]) its imposition would, in any case, be otiose.

Proposed condition 106

80. As noted above (at [44(5)]), proposed condition 106 concerns the splay envisaged for future construction at the corner of Browns Road and Fifth Avenue.

81. As also identified above (at [44(5)]), the Parties provided alternate versions of proposed condition 106, each of which seeks to ensure that the land required for these future works remains unencumbered by the Proposed Development albeit though differing mechanisms, as follows:

1. the Respondent sought imposition of proposed condition 106 in the following form:

1. Prior to the issue of an Occupation Certificate a 6m x 6m splay corner at the intersection of Browns Road with Fifth Avenue is to be dedicated as road to Liverpool City Council on a plan of subdivision registered with the Land & Property Information Division of the Land & Property Management Authority.

In the alternative, a restriction as to user is to be imposed requiring the area designated as a splay on the south eastern corner of proposed lot 2 in DA 101 revision R preventing the erection of any structure or planting of any vegetation (other than grass) in that area. The restriction is to require the area to be maintained by the owner of lot 2. The restriction is to be lodged with the subdivision certificate application.

2. the Applicant sought imposition of proposed condition 106 in the following form:

This consent does not authorise the carrying out of any works or the installation of any landscaping in the 6m x 6m splay.

82. Having considered the alternate versions of proposed condition 106 provided by the Parties, we have concluded that the version drafted by the Respondent should be imposed with the grant of consent for the Proposed Development, for the following reasons:

1. the version of proposed condition 106 provided by the Respondent:

1. is specific in relation to the location of the land to which the condition applies;

2. provides certainty in relation to the limitations on future use of the land to which the condition would apply such that the intent of the condition with respect to the future use of the land can be assured;

3. provides the Applicant with reasonable alternatives as to how the planning purpose of the condition can be attained;

2. the version of proposed condition 106 provided by the Applicant:

1. lacks the specificity and certainty of the condition as provided by the Respondent’s version; and

2. is not, in our assessment, specific in terms of its proposed planning intent, particularly when compared with the version of the condition provided by the Respondent.

Other conditions

83. The remaining conditions of consent were the subject to agreement by the Parties and reflected the outcome of submissions made by them at the hearing (see above at [44]).

Jurisdictional matters

84. The Parties provided the following advice at the conclusion of the hearing, which we accept, in relation to other jurisdictional matters that must be satisfied in order that the Court’s powers to grant consent are enlivened:

Environmental Planning and Assessment Regulation 2000

85. Pursuant to the provisions of s 49(1) of the Regulation, owner’s consent has been provided in relation to the Applicant’s development application No DA-690/2019;

86. Pursuant to the provisions of s 77(1) of the EP&A Regulation:

1. the Applicant’s development application No DA-690/2019 was notified;

2. one submission was received in response to that notification; and

3. the matters raised in that submission have been considered in the assessment of the Proposed Development.

State Environmental Planning Policy No.55 – Remediation of Land

87. The provisions of cl 7 of SEPP55, concerning the contamination and remediation of land, were provided above at [21], and as noted above at [22] these have been considered, and in relation to this:

1. a detailed site investigation has been undertaken by Envirotech Pty Ltd in 2019 which concluded that the soil samples taken on site were below the thresholds of the adopted human health and ecological assessment criteria for the proposed land use as specified under the NEPM (2013) and the soil does not require remedial actions.

2. the Subject Site is considered suitable for its proposed land use as a child care centre.

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

88. In relation to the provisions of the Growth Centres SEPP:

1. the Subject Site is located within the R2 Low Density Residential zone pursuant to the provisions of Appendix 8 of the Growth Centres SEPP.

2. the Proposed Development is defined as a centre-based child care facility which is permissible with consent within the R2 Low Density Residential zone applicable to the Subject Site.

3. the proposed development complies with all development standards under the Appendix 8 of Growth Centres SEPP including the maximum height of buildings development standard within cl 4.3 of Appendix 8 of the Growth Centres SEPP;

4. pursuant to the provisions of cl 6.1 of Appendix 8 of the Growth Centres SEPP:

1. adequate arrangements have been made for the public utility infrastructure required to service the development; and

2. an agreed condition of consent (proposed condition 120), relating to the provision of evidence of suitable arrangements for water, sewage and electricity, is proposed for imposition with the grant of consent.

State Environmental Planning Policy (Educational Establishments and Child CareFacilities) 2017

89. Part 3 of the Child Care SEPP contains provisions which apply to centre based child care facilities, and specifically:

1. clause 22 provides that the consent authority must not grant development consent to development to which this clause applies except with the concurrence of the Regulatory Authority, and in relation to this:

1. the provisions of cl 22(1) of the Child Care SEPP were provided above (at [25(1)]), and:

1. the Proposed Development complies with the requirements of cl 107 of the Education and Care Services National Regulations in that the architectural plans indicate compliance, in particular drawing DA-08 specifies that the required indoor space to be 3.25m² per child being a total of 526.5m² whereas the indoor space provided exceeds this by providing 603.4m²;

2. the Proposed Development complies with cl 108 of the Education and Care Services National Regulations in that drawing DA-08 indicates the required outdoor space to be 7m² per child being a total of 1,134m² whereas the indoor space provided exceeds this by providing 1,274m².

2. as the Proposed Development complies with the provisions of cll 107 and 108 of the Education and Care Services National Regulations, the concurrence of the Regulatory Authority is not required.

Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (No 2- 1997)

90. The proposed development is consistent with the aims of Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (No 2-1997) which seeks to protect the environment of the Hawkesbury-Nepean River system).

Conclusion

91. Having considered the evidence of the experts and the submissions of the Parties in these proceedings we have concluded that the Applicant’s development application No DA-690/2019 should be determined by the grant of consent, subject to conditions, because:

1. as agreed by the Parties (see above at [9]):

1. the Proposed Development is compliant with all applicable development standards within the Growth Centres SEPP and in particular with the development standards within Appendix 8 of that SEPP;

2. the Proposed Development was compliant with all applicable controls within the LDCP, or where this was not the case it satisfied the objectives of those controls such that it represented a reasonable alternative solution to which flexibility in the application of those controls should be applied pursuant to the provisions of s 4.15(3A) of the EP&A Act;

2. we have concluded (see above at [65]) that the Proposed Development is compatible with its envisaged future local character and surrounding streetscape and as its bulk and scale are also acceptable;

3. we agree that all other jurisdictional matters that must be satisfied in order that the Court’s powers to grant consent are enlivened have been so satisfied (see above at [84] to [90]);

4. all matters relating to the differing submissions of the Parties in relation to conditions of consent to be imposed with the grant of consent have been resolved in the appeal (see above at [66] to [83]).

92. As is evident from the judgment, it will be necessary that the Parties undertake some further work to finalise agreed conditions of consent, consistent with our findings in the appeal, in order that final orders can be made to dispose of the appeal. To that end we make the following directions.

Directions

93. The Court directs:

1. the Parties are to file with the Court final agreed conditions of consent, reflecting the conclusions of this judgment above at [91], and consistent with the Court’s most recent guidance in relation to the required format of conditions, by no later than on Friday 12 February 2021;

2. the matter is listed for mention on Monday 15 February 2021 at 4:15pm;

3. if direction (1) above is complied with, orders will be made granting development consent and the mention on 15 February 2021 will be vacated.

Addendum made on 24 February 2021

94. On 29 January 2021, the Parties were directed to agree, and file with the Court, by no later than Friday 12 February 2021, settled conditions of consent, reflecting the conclusions in the Court’s judgment in this matter.

95. The Parties have now agreed settled conditions of consent reflecting the conclusions in the Court’s judgment. As the Parties’ agreed conditions of consent have now been filed, the Court is able to make final orders.

Orders

96. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. DA-690/2019 seeking approval for the Torrens Title subdivision of land at 45 Fifth Avenue, Austral, also known as Lot 1101 in DP2475, from one lot into two lots, as well as the construction of a 162 place child care centre with basement car parking and associated works is determined by the grant of consent, subject to the conditions attached at Annexure ‘A’.

3. The exhibits are returned, with the exception of Exhibits A, B and 1.

..………………………..

M Chilcott

Commissioner of the Court

..………………………..

E Washington

Acting Commissioner of the Court

Annexure A (369415, pdf)

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Amendments

24 February 2021 - See Addendum at [94]-[96]

Decision last updated: 24 February 2021