Gu v Campbelltown City Council

[2023] NSWLEC 1485

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gu v Campbelltown City Council [2023] NSWLEC 1485

Hearing dates:

Conciliation conference on 11 and 31 July 2023

Date of orders:

29 August 2023

Decision date:

29 August 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $8,850 within 14 days of the date of these orders.
(2) The appeal is upheld.
(3) Development Application No 4705/2022/DA-C, seeking development consent for the demolition of existing structures and the construction of a two storey child care centre over basement level parking on land legally described as Lot 12 in Deposited Plan 771244 and known as 32 Minto Road, Minto, NSW, 2566, is determined by the grant of development consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – child care centre – amended plans – conciliation conference – agreement reached – orders

Legislation Cited:

Campbelltown Local Environmental Plan 2015, cll 5.21, 7.4, 7.10.
Education and Care Service National Regulations 2011
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15
Environmental Planning and Assessment Regulation, 2021, s 38
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6
State Environmental Planning Policy (Resilience and Hazards), s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Chs 2, 3, s 3.23

Texts Cited:

NSW Department of Planning, Industry and Environment, Child Care Planning Guidelines, 2017

Category:

Principal judgment

Parties:

Yue Gu (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
K Arthur (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2023/58589

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Yue Gu (the Applicant) against Campbelltown City Council’s (the Respondent) deemed refusal of Development Application No 4705/2022/DA-C which was lodged on 28 November 2022.

2. The Development Application seeks development consent for the demolition of existing structures and the construction of a two storey child care centre over basement level parking. The proposed development is to be undertaken on land legally described as Lot 12 in Deposited Plan 771244 and known as 32 Minto Road, Minto, NSW, 2566.

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 11 and 31 July 2023. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The terms of that agreement are that development consent be granted, subject to conditions.

4. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the agreement of the parties if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the Development Application subject to conditions.

6. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court. The Respondent has approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending the development application in accordance with the discussions during the conciliation conference.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

8. 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Campbelltown Local Environmental Plan 2015 (CLEP 2015), the subject site is zoned R2 Low Density Residential. Centre-based child care facilities are permissible, with Development Consent, in the R2 zone. In determining the Development Application, the parties and I have had regard to the objectives of the zone.

2. The proposed development does not contravene a development standard in the CLEP 2015, nor in any other applicable Environmental Planning Instrument.

3. Clause 5.21 (Flood Planning) applies to the Site as it is identified as flood prone land. The site is considered by the parties to have minor affectation with the 1% AEP level with the required free board being 41.7 to 42 metres. The levels of the Site are 41.5 to 43 metres which confirms that the Site is already largely above the AEP level. The Development provides the required finished floor level of 42.15 metres and includes a driveway crest to 42.45 metres to avoid water entering the basement car park. An assessment against the provisions of cl 5.21 is also included in the Statement of Environmental Effects accompanying the application.

4. Clause 7.4 (Salinity) applies to the Site as it is identified as being affected by moderate salinity potential. A Salinity and Aggressivity Report which assesses the salinity of the Site and provides recommendations to mitigate the adverse impacts from the Development has been prepared by the Applicant and considered by the Respondent.

5. The requirements of cl 7.10 of CLEP 2015, that require the consent authority to be satisfied that certain essential services will be met, have been adequately considered and satisfied. The application is accompanied by the following searches and documents which confirm that the required essential services are available to the Site:

1. Sewer Service Diagram from Sydney Water;

2. Dial Before You Dig (DBYD) searches from Endeavour Energy, Jemena Gas Networks, NBN, Optus, RGM Property Surveys, and Sydney Water;

3. Deposited Plan 771244; and

4. Stormwater Management Plans prepared by Stormwater Engineers Pty Ltd dated July 2023.

6. The parties agree that essential services will be available to the proposed development and appropriate conditions, ensuring the required outcomes, are included in the Development Consent forming Annexure A.

7. The Development Application was notified 6 December 2022 until 27 January 2023. No submissions were received during the notification period.

8. Consideration has been given to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP). The parties agree that required considerations in the BC SEPP have been met in respect to the provisions relating to the Georges River Catchment (Ch 6). As a result of these deliberations, I am also satisfied that the BC SEPP requirements have been met.

9. Consideration has been given to whether the Site is contaminated as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. A Preliminary & Detailed Site Investigation and a Detailed Site Investigation Addendum have been prepared for the Site. Based on these investigations, remediation of the Site will be required in order for the Site to be considered to be suitable for the proposed use as a child care centre. A Remediation Action Plan has been prepared for the Site which provides a plan to properly remediate and manage the contamination identified across the Site. Appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

10. The required consideration has been given to State Environmental Planning Policy (Transport and Infrastructure) 2021 (ISEPP). The parties agree that Ch 2 of the ISEPP, Infrastructure, has been considered. The parties agree that the proposed development does not trigger referrals, or the provision for written advice to authorities, given the nature and location of the development. Therefore, the requirements of Ch 2 have been met.

11. The parties also agree that the Development Application has addressed the necessary matters in Ch 3 of the ISEPP which relate to Educational establishments and child care facilities. This includes compliance assessments and responses to the various considerations, and numerical requirements, in the NSW Department of Planning, Industry and Environment, Child Care Planning Guidelines, 2017, as required under s 3.23 of the ISEPP. The statement of environmental effects accompanying the application includes a compliance assessment with the relevant guidelines. Where appropriate, the parties have agreed conditions around the operation of the proposed centre and these are included in Annexure A. I am therefore satisfied that the various aspects of the ISEPP have been met.

12. The Education and Care Service National Regulations 2011 also apply to the development. The required assessment of compliance has been undertaken.

9. As the parties decision is a decision that the Court could have made in the proper exercise of its functions, I am required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties’ agreement.

10. 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.

Orders

11. Pursuant to s 34(3) of the Land and Environment Court Act 1979, to give effect to the parties’ agreement, I make the following orders.

12. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $8,850 within 14 days of the date of these orders.

2. The appeal is upheld.

3. Development Application No 4705/2022/DA-C, seeking development consent for the demolition of existing structures and the construction of a two storey child care centre over basement level parking on land legally described as Lot 12 in Deposited Plan 771244 and known as 32 Minto Road, Minto, NSW, 2566, is determined by the grant of development consent, subject to the conditions set out in Annexure A.

Stuart Harding

Acting Commissioner of the Court

Annexure A

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Decision last updated: 29 August 2023