GVE Investment Pty Ltd ATF GVE Investment Family Trust v Willoughby City Council

Case •

[2025] NSWLEC 1528

•

23 July 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: GVE Investment Pty Ltd ATF GVE Investment Family Trust v Willoughby City Council [2025] NSWLEC 1528
Hearing dates: Conciliation conference 18 July 2025
Date of orders: 23 July 2025
Decision date: 23 July 2025
Jurisdiction:Class 1
Before: Porter C
Decision:

The Court orders:

(1) The Applicant shall pay the Respondent’s costs thrown away by reason of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $30,000, which is to be paid within 28 days of orders being made.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA-2024/74 for alterations and additions to the existing building for use as a child care centre with basement car parking, landscaping and associated works at 338 Mowbray Road, Artarmon, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – centre-based child care centre – 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 2011

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.6, 6.9, 6.10

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 2.48, 2.119, 2.120, 3.22, 3.23, 3.26

Willoughby Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.4A, 5.10, 6.2, 6.3

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245

Texts Cited:

Child Care Planning Guideline 2021

Category:Principal judgment
Parties: GVE Investment Pty Ltd ATF GVE Investment Family Trust (Applicant)
Willoughby City Council (Respondent)
Representation:

Counsel:
M Jaku (Solicitor) (Applicant)
M Winram (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
Maddocks (Respondent)
File Number(s): 2024/420897
Publication restriction: Nil

JUDGMENT

  1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of DA-2024/74 (DA) for alterations and additions to the existing building for use as a child care centre with basement car parking, landscaping and associated works at 338 Mowbray Road, Artarmon (Lot 1 in Deposited Plan 735680) (site).

  2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 July 2025. I have presided over the conciliation conference.

  3. The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-2024/74 in accordance with the documents listed below:

  1. Architectural plans prepared by ArtMade Architects:

Drawing No.

Drawing Name

Date

DA02.01, Issue C

Demolition Plan

23.05.2025

DA02.02, Issue C

Site Plan

23.05.2025

DA03.01, Issue C

Parking Level Plan & Cross Sections

23.05.2025

DA03.02, Issue C

Ground Floor Plan

23.05.2025

DA03.03, Issue A

Roof Plan

28.04.2025

DA03.04, Issue B

Cut and Fill Plan

23.05.2025

DA03.10, Issue B

Calculations

23.05.2025

DA04.01, Issue C

External Elevations

23.05.2025

DA04.02, Issue B

Fence Elevations & Driveway Sections

23.05.2025

DA04.03, Issue A

Photomontage

28.04.2025

DA05.01, Issue C

Sections & External Finishes

23.05.2025

DA05.02, Issue C

Driveway Sections & Building Height Plane

23.05.2025

DA10.01, Issue A

JNR WC 1 & Nappy Change

28.04.2025

DA10.02, Issue A

JNR WC 2 & 3

28.04.2025

  1. List of plan amendments prepared by ArtMade Architects dated 29 April 2025;

  2. List of plan amendments prepared by ArtMade Architects dated 23 May 2025;

  3. Landscape plans prepared by Melissa Wilson Landscape Architects:

Drawing No.

Drawing Name

Date

LS00, Issue E

Cover Page

27.05.25

LS01, Issue E

Site Plan

27.05.25

LS02, Issue E

Layout + Planting Plan

27.05.25

LS03, Issue E

Mood Board

27.05.25

LS04, Issue E

Plant Species

27.05.25

LS05, Issue E

Notes

27.05.25

LS06, Issue E

Typical Details

27.05.25

  1. Civil engineering plans prepared by Greenview Consulting:

Drawing No.

Drawing Name

Date

C01, Revision 3

Notes & Legends

27.05.2025

C02, Revision 5

Parking Level Drainage Plan

27.05.2025

C03, Revision 5

Ground Floor Drainage Plan

27.05.2025

C04, Revision 3

MUSIC Modelling

27.05.2025

C05, Revision 3

Catchment Plan

27.05.2025

C06, Revision 2

OSD Catchment Plan

27.05.2025

C07, Revision 3

Site Stormwater Details Sheet 1

27.05.2025

  1. Addendum to Heritage Impact Statement prepared by Weir Phillips Heritage and Planning dated 29 April 2025.

  2. Structural Letter (Preliminary/Concept Shoring Design) prepared by Greenview Consulting.

  3. Addendum to Environmental Noise Impact Assessment prepared by Day Design Pty Ltd dated 27 May 2025.

  4. Arboricultural Impact Assessment prepared by Bellevue Tree Consultants dated 27 May 2025.

  5. Air Quality Monitoring Report prepared by Zephyr Environmental dated 28 April 2025.

  6. Addendum to Air Quality Monitoring Report prepared by Zephyr Environmental dated 27 May 2025.

  7. Plan of Management dated 12 June 2025.

  8. Updated Parking & Traffic Impact Assessment prepared by Stanbury Traffic Planning dated 27 May 2025.

  9. Vehicle Management Plan prepared by Stanbury Traffic Planning dated 27 May 2025.

  10. Waste Management Plan prepared by Dickens Solutions dated 28 May 2025.

  11. Preliminary and Detailed Site Investigation and Remediation Action Plan prepared by Broadcrest Consulting Pty Ltd dated 21 March 2025.

  12. Emergency Management Plan prepared by Greg Muir dated 6 April 2025.

  13. Assessment against clause 6.2 of the Willoughby Local Environmental Plan 2012 prepared by Think Planners dated 1 May 2025.

  1. As part of the conciliation conference process the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent under s 4.16 of the EPA Act.

  2. 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. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

Jurisdictional Prerequisites

  1. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

  2. I am satisfied that owner’s consent has been provided for the DA as the Applicant is the owner. The Respondent notified the DA from 22 April 2024 to 21 May 2024 where five submissions were received. The amended DA was notified for objectors on an information without prejudice basis from 20 to 27 June 2025. Three submissions were received.

  3. As the parties have entered into an agreement, the Court’s role is limited to ensuring that there is jurisdiction/power to grant consent, and not the merits of the issues raised (Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [217]).

  4. In reaching agreement, the parties have advised the Court that they considered the concerns raised in the objections.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  1. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies as the site is located in the Sydney Harbour Catchment. I accept the parties’ agreement the provisions have been satisfied on the basis of the:

  1. Stormwater management plans prepared by Greenview Consulting dated 25 August 2023 and updated stormwater management plans prepared by Greenview Consulting dated 27 May 2025 (stormwater plans);

  2. Geotechnical Report prepared by Broadcrest Consulting Pty Ltd dated 12 February 2024;

  3. Preliminary Site Investigation, Detailed Site Investigation and Remediation Action Plan (prepared by Broadcrest Consulting Pty Ltd) (contamination reports); and

  4. Jurisdictional Statement.

  1. I accept the parties’ agreement that ss 6.6, 6.9 and 6.10 are satisfied in that the proposed stormwater system will not increase impacts on site, to adjoining properties or waterways, will have a neutral or beneficial impact on water quality and that there will be minimal or no impacts on natural waterbodies, aquatic ecology, wetlands and recreational areas.

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site in relation to contamination. The amended DA is accompanied by a Preliminary Site Investigation, Detailed Site Investigation and Remediation Action Plan prepared by Broadcrest Consulting Pty Ltd dated March 2025 which demonstrate that the site can be made suitable for the proposed use subject to recommendations. The recommendations have been included in the conditions of consent at Annexure A. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI)

  1. Section 2.48 applies due to the proposal’s proximity to Ausgrid’s infrastructure. The proposal was referred to Ausgrid, who raised no objection and provided conditions of consent. These conditions have been included in the conditions of consent (condition 3) of Annexure A.

  2. The parties advise that the application was referred to Transport for NSW (TfNSW) pursuant to ss 2.119 and 2.120 as the site has frontage to a classified road. TfNSW raised no concerns and the recommended conditions have been included in the conditions of consent (condition 2) of Annexure A. The amended DA is accompanied by:

  1. Structural Letter (Preliminary/Concept Shoring Design) prepared by Greenview Consulting (structural letter).

  2. Addendum to Environmental Noise Impact Assessment prepared by Day Design Pty Ltd dated 27 May 2025.

  3. Air Quality Monitoring Report prepared by Zephyr Environmental dated 28 April 2025.

  4. Addendum to Air Quality Monitoring Report prepared by Zephyr Environmental dated 27 May 2025.

  5. Updated Parking & Traffic Impact Assessment prepared by Stanbury Traffic Planning dated 27 May 2025.

  6. Vehicle Management Plan prepared by Stanbury Traffic Planning dated 27 May 2025.

  7. Waste Management Plan prepared by Dickens Solutions dated 28 May 2025.

  1. On the basis of these reports, I accept vehicular access is not provided via the classified road, that the safety, efficiency and ongoing operation of the classified road will not be impacted and the noise and emissions impacts of the road on the proposed development have been adequately ameliorated by the recommendations of the above reports.

  2. I accept that ss 2.48, 2.119 and 2.120 have been satisfied.

  3. Chapter 3 Educational establishments and childcare facilities of SEPP TI applies to the proposed development.

  4. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 and 3.26 of SEPP TI as shown on the architectural plans and outlined in the jurisdictional statement. Further, based on the agreed submissions from the parties in the jurisdictional statement and Statement of Environmental Effects, I have considered the provisions of ss 3.22, 3.23, 3.26, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

Willoughby Local Environmental Plan 2012

  1. The subject site is zoned R2 Low Density Residential, where the proposed use for a centre-based child care facility is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

  2. Clause 2.7 demolition permits demolition with consent, as sought by the amended DA.

  3. Clause 4.3 height of buildings applies and allows two different height limits of 8m (towards the front of the site along Mowbray Road) and 8.5m. The architectural plans prepared by ArtMade Architects with various dates (architectural plans) demonstrate that the amended proposal is below the respective height limits.

  4. Clauses 4.4(2) and 4.4A(2) floor space ratio (FSR) provide a maximum FSR of 0.4:1 for the proposed development. The amended DA complies, at 0.29:1, as shown on the architectural plans (drawing DA03.10).

  5. Clause 5.10 heritage conservation applies as the site is located within the South Chatswood Heritage Conservation Area and is a contributory building. The site is also located in close proximity to the Artarmon Heritage Conservation Area and in the vicinity of a number of heritage items. On the basis of the Heritage Impact Statement prepared by Weir Phillips Heritage and Planning dated August 2023 and Addendum to the Heritage Impact Statement prepared by Weir Phillips Heritage and Planning dated 29 April 2025, I accept that the heritage impacts have been considered by the parties.

  6. Clause 6.2 earthworks applies to the proposal. The DA is accompanied by a Geotechnical Report prepared by Broadcrest Consulting Pty Ltd dated 12 February 2024, contamination reports, stormwater plans, architectural plans (cut and fill plan), structural letter, and assessment of cl 6.2 prepared by Think Planners dated 1 May 2025. The jurisdictional statement details how each of the provisions have been met, which I accept.

  7. For the abundance of caution given the types of development cl 6.3 urban heat applies to, the parties have confirmed that cl 6.3 urban heat has been considered.

Heads of consideration

  1. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

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

  2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

  3. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

  1. The Court orders:

  1. The Applicant shall pay the Respondent’s costs thrown away by reason of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $30,000, which is to be paid within 28 days of orders being made.

  2. The appeal is upheld.

  3. Development consent is granted to Development Application No. DA-2024/74 for alterations and additions to the existing building for use as a child care centre with basement car parking, landscaping and associated works at 338 Mowbray Road, Artarmon, subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

Annexure A (727 KB, pdf)

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Decision last updated: 23 July 2025

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245