Halwe v Penrith City Council

[2021] NSWLEC 1390

Land and Environment Court

New South Wales

Medium Neutral Citation:

Halwe v Penrith City Council [2021] NSWLEC 1390

Hearing dates:

Conciliation conference on 14 May 2021 and 7 June 2021

Date of orders:

06 July 2021

Decision date:

06 July 2021

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

See judgment at [12]

Catchwords:

DEVELOPMENT APPLICATION – Alterations and additions to existing child care centre – increase in capacity – agreement between the parties – orders

Legislation Cited:

Education and Care Services National Regulations (NSW), cll 25, 107, 108

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Penrith Local Environmental Plan 2010

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cl 22

State Environment Planning Policy No 55 – Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Suzanne Halwe (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
P Saab (Solicitor) (Applicant)
M Pearce (Solicitor) (Respondent)

Solicitors:
Macquarie Lawyers (Applicant)
Penrith City Council (Respondent)

File Number(s):

2021/47081

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Penrith City Council (Respondent) of Development Application DA20/0009 for the partial demolition of existing structures and alterations and additions to existing childcare centre and increase in capacity by an additional 21 children, with associated parking, drainage and landscaping at Lot 2 in Deposited Plan 250212 and Lot 6 in Deposited Plan 250214 known as 14 Bennett Road and 2 Shane Street Colyton (Site).

2. On 14 May 2021 I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act).

3. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to amend the development application and to grant development consent.

4. On 18 June 2021, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle.

5. The amendments to the plans, together with additional material provided by the Applicant to the Council addressed the Council’s contentions.

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

7. The parties’ agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant the application to grant development consent.

8. I note:

1. The proposed development is permissible in its zone –the R2 Low Density Residential Zone under Penrith Local Environmental Plan 2010 (PLEP 2010).

2. The proposed development does not contravene any development standards in PLEP 2010.

3. Clause 7 of State Environment Planning Policy No 55 – Remediation of Land (SEPP 55) requires a consent authority to consider the contamination and remediation of land when determining a development application.

4. The Applicant has provided a Statement under reg 25(1)(d) of the Education and Care Services National Regulations (National Regulations) which confirms the Site has been used for residential purposes in the past and that the Site is suitable for use as a child care centre.

5. There is no known contamination of the Site, no further investigation of the Site is warranted, and the Site is suitable for the proposed use.

6. The Court is therefore satisfied that cl 7 of SEPP 55 has been adequately addressed.

7. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP 2017) applies to the DA.

8. Concurrence from the Department of Education under clause 22(2) of the SEPP 2017 is not required because the DA complies with:

1. cl 107 of the National Regulations (indoor unencumbered space requirements); and

2. cl 108 of the National Regulations (outdoor unencumbered space requirements).

9. Having considered the material provided to the Court 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 Court Act.

10. 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 Court Act to dispose of the proceedings in accordance with the parties’ decision.

11. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act.

12. The Court orders:

1. The applicant is granted leave to amend Development Application DA20/0009 and to rely upon the following amended plans and documents:

Drawing No.	Drawing Name	Prepared by	Revision	Date
1B	Site Plan	Cynstate Building Solutions	E	09/06/2021
2D	Ground Floor Plan	Cynstate Building Solutions	D	09/06/2021
3C	Elevations	Cynstate Building Solutions	C	10/06/2021
4B	Elevation and Section	Cynstate Building Solutions	B	30/04/2021
2019/047/1	Drainage Details and Notes	Gerard Balkin	C	28/05/2021
2019/047/2	Drainage Plan	Gerard Balkin	C	28/05/2021
5431	Landscape Plan	Monaco Designs PL	E	02/06/2021
-	Plan of Management	-	2	09/06/2021
20200494.1/1006A/R2/AW	Development Application Acoustic Assessment	Acoustic Logic	2	10/06/2021

2. The appeal is upheld.

3. Development Application No. DA20/0009 (as amended) for the partial demolition of existing structures and alterations and additions to existing childcare centre and increase in capacity by an additional 21 children, with associated parking, drainage and landscaping is approved subject to conditions at Annexure “A”.

4. The Applicant pay the Respondent’s costs thrown away in the amount of $3,500 within 28 days pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (285822, pdf)

Plans (1264542, pdf)

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Decision last updated: 06 July 2021