Hano Halanka Pty Ltd v Liverpool City Council

[2024] NSWLEC 1553

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hano Halanka Pty Ltd v Liverpool City Council [2024] NSWLEC 1553

Hearing dates:

Conciliation Conference 26 July, 9, 19, 26 and 29 August 2024

Date of orders:

10 September 2024

Decision date:

10 September 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Development consent is granted to No. DA-461/2023, as amended, for the amalgamation of two separate land parcels and demolish all existing structures in-order to construct a 2 storey x 110 place ‘Centre-Based Child Care Facility’ with a total of 30 car parking space over a basement level, on land legally described as Lot 5 in DP238358 and Lot 6 in DP238358 and known as 33 and 35 Stewart Avenue, Hammondville, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – centre based child care facility – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations (2011 SI 653)

Environmental Planning and Assessment Regulation 2021 ss 37, 38

Liverpool Local Environmental Plan 2008, cll 4.3, 4.4

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Part 3.3, ss 3.22, 3.23, 3.25, 3.26 and 3.27

Category:

Principal judgment

Parties:

Hano Halanka Pty Ltd ACN 649130576 (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Najem (Solicitor)(Applicant)
J Garcia (Solicitor)(Respondent)

Solicitors:
St George Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2023/464868

Publication restriction:

No

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 refusal of development application DA-461/2023 (Development Application) seeks consent for the Demolition of existing structures, Consolidation of two lots, Construction of a centre based child care facility for 110 children with Basement Parking and Landscaping (the Proposed Development) at 33-35 Stewart Avenue Hammondville legally described as Lot 5 and 6 in DP 238358 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 26 July, 9, 19, 26 and 29 August 2024. I presided over the conciliation conference.

3. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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. 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.

5. The Development Application DA-461/2023 was lodged with Liverpool Council 25 August 2023. The application was notified in accordance with the Respondent’s community Engagement Strategy 2022 between 30 August 2023 to 14 September 2023. Twenty eight (28) submissions were received during the notification period. Three (3) submissions were made by way of objections during the s34 Conciliation Conference. The objectors raised the following concerns:

1. Adverse traffic and parking impacts;

2. Visual and acoustic privacy impacts;

3. Fencing impact; and

4. Constructions impacts.

6. Pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Applicant has sought to amend the DA to incorporate amended plans and documents. Pursuant to s 38 of the EPA Regulation, the Respondent (as consent authority) has agreed to the Applicant amending the DA to incorporate amended plans and documents. The parties agree that the issues raised by objectors, where appropriate, have been particularised in the SOFAC and have been adequately addressed in the Amended DA and Conditions of Consent at Annexure ‘A’.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

8. 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 to be the terms of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. The parties explained how the jurisdictional prerequisites have been satisfied in a joint jurisdictional note.

9. The Site is owned by the Applicant.

10. The Liverpool Local Environmental Plan 2008 (LLEP) applies to the Site which site is zoned R3 Medium Density Residential under the provisions of the LLEP The Proposed Development, while permitted with consent within the R3 Medium Density Residential zone is being proposed pursuant to the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP).

11. Compliance with the LLEP is addressed generally in the Statement of Environmental Effects prepared by Think Planners dated 2 August 2023 and filed with the Class 1 Application but specific provisions are addressed below.

12. The Site is subject to a maximum height of building development standard of 8.5m pursuant to cl 4.3 of the LLEP. The height of the Proposed Development complies at 8.2m.

13. The Site is subject to a maximum Floor Space Ratio (FSR) development standards pursuant to cl 4.4 of the LLEP at 0.5:1. The total gross floor area for the Proposed Development is 702m² therefore, the a compliant FSR of 0.41:1 is proposed.

14. There are no other relevant jurisdictional matters or development standards in the LLEP that constrains the granting of development consent.

15. The relevant provisions of the Transport and Infrastructure SEPP are at Part 3.3, ss 3.22, 3.23, 3.25, 3.26 and 3.27 with which the Proposed Development complies. The development application has addressed and complies with the applicable legislative provisions as contained within the Education and Care Services National Regulations (2011 SI 653).

16. Chapter 4 (Remediation of Land) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the Site and s 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

17. The Amended DA is accompanied by an Addendum to the Preliminary Environmental Site Investigation dated 8 August 2024 which confirms that the Site had increased lead at additional locations above the Site Assessment Criteria and a remediation action plan would be required. The Amended DA is accompanied by a Remediation Action Plan dated 14 August 2024, which confirms that the Site could be made suitable for the proposed redevelopment of the Childcare facility by the implementation of the following recommendations:

• A hazardous building material survey should be undertaken by a suitably qualified consultant prior to the demolition of buildings and structures;

• A Remediation Action Plan is prepared to manage the remediation of identified lead and zinc contamination and to manage the waste material currently on the site; and

• Excavated soil material generated during redevelopment activities for off-site disposal must be classified in accordance with the NSW EPA (2014) Waste Classification Guidelines and disposed of to an appropriate and licenced facility.

18. Conditions 43 and 72 of Annexure ‘A’ ensure that the above recommendations are implemented.

19. The parties agree that the requirements of s 4.6(1) of the Resilience and Hazard SEPP are satisfied.

20. 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. I adopt the reasons given by the parties.

21. 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.

Notations:

22. The Court notes:

1. The Respondent, as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA-461/2023 in accordance with the following amended plans (Amended Development Application):

Plan Name	Project No.	Sheet No.	Date	Revision	Prepared by
Cover Page	23019	00	01/05/24	B	Baini Design
Compliance Table, Location Plan	23019	01	01/05/24	B	Baini Design
Site Context Plan	23019	02	01/05/24	B	Baini Design
Site Analysis Plan	23019	03	01/05/24	B	Baini Design
Shadow Diagrams	23019	04	01/05/24	B	Baini Design
Site Plan & Demolition	23019	05	01/05/24	B	Baini Design
Basement Floor Plan	23019	06	01/05/24	B	Baini Design
Ground Floor Plan	23019	07	01/05/24	B	Baini Design
First Floor Plan	23019	08	01/05/24	B	Baini Design
Roof Plan	23019	09	01/05/24	B	Baini Design
Elevations	23019	10	01/05/24	B	Baini Design
Elevations	23019	11	01/05/24	B	Baini Design
Sections	23019	12	01/05/24	B	Baini Design
Callout Elevations	23019	13	01/05/24	B	Baini Design
Kitchen and Laundry Details	23019	14	01/05/24	B	Baini Design
Typical Nappy Change	23019	15	01/05/24	B	Baini Design
Typical Bottle Prep Detail	23019	16	01/05/24	B	Baini Design
Typical Craft Bench Detail	23019	17	01/05/24	B	Baini Design
Schedule of Finishes	23019	18	01/05/24	B	Baini Design
Solar Access Diagrams	23019	19	01/05/24	B	Baini Design
Outdoor Calc. Plan - GF	23019	20	01/05/24	B	Baini Design
Outdoor Calc. Plan - FF	23019	21	01/05/24	B	Baini Design
Indoor Calc. Plan-0-2	23019	22	01/05/24	B	Baini Design
Indoor Calc. Plan-2-3	23019	23	01/05/24	B	Baini Design
Indoor Calc. Plan-3-5 (GF)	23019	24	01/05/24	B	Baini Design
Indoor Calc. Plan-3-5 (FF)	23019	25	01/05/24	B	Baini Design
Fencing Detail – Ground Floor	23019	26	01/05/24	B	Baini Design
Fencing Detail – First Floor	23019	27	01/05/24	B	Baini Design
Fencing Details	23019	28	01/05/24	B	Baini Design
3D Perspectives	23019	29	01/05/24	B	Baini Design
Streetscape Elevation	23019	30	01/05/24	B	Baini Design
Accessible Details - Basement	23019	31	01/05/24	B	Baini Design
Accessible Details – Ground Floor	23019	32	01/05/24	B	Baini Design
Accessible Details – First Floor	23019	33	01/05/24	B	Baini Design
Cover Sheet, Notes and Legend	22798	000	20/07/2023	B	Telford Civil
Stormwater Concept Plan Basement Level Sheet 1 of 2	22798	101	20/07/2023	B	Telford Civil
Stormwater Concept Plan Basement Level Sheet 2 of 2	22798	102	20/07/2023	B	Telford Civil
Stormwater Concept Plan Ground Floor Plan	22798	103	20/07/2023	B	Telford Civil
Stormwater Concept Plan Level 1 & Roof Plan	22798	104	20/07/2023	B	Telford Civil
Stormwater Concept Plan WSUD Catchment Plan	22798	105	20/07/2023	B	Telford Civil
OSD & WSUD Details and Calculations Sheet 1 of 2	22798	106	20/07/2023	B	Telford Civil
OSD & WSUD Details and Calculations Sheet 2 of 2	22798	107	20/07/2023	B	Telford Civil
DRAINS Model and Calculation Sheets	22798	108	20/07/2023	B	Telford Civil
Miscellaneous Details Sheet	22798	108	20/07/2023	B	Telford Civil
Proposed Childcare Centre – Landscape Plan 1	08.23/019’A’	One/Two	25.07.23	A	iScape Landscape Architecture
Proposed Childcare Centre – Landscape Plan 2	08.23/020’A’	Two/Two	25.07.23	A	iScape Landscape Architecture

Report Name	Job Number	Date	Revision	Prepared by
Arboricultural Impact Assessment	F592	03 March 2023	DRAFT	Creative Planning Solutions – James Hume-Grimm
Parking and Traffic Impact Assessment (excluding Appendix 1 – Architectural Plans)	22-223	July 2023	-	Stanbury Traffic Planning
Waste Management Plan	22321	July 2023	-	Dickens Solutions Pty Ltd
Plan of Management – 110 Place Child Care Facility	PoM: 33-35 Stewart Avenue, Hammondville	06 August 2024	Final	Think Planners Pty Ltd
Social Impact Comment: Child Care Facility	Child Care Facility: 33-35 Stewart Avenue, Hammondville	08 May 2024	-	Think Planners Pty Ltd
Addendum to Preliminary Site Investigation	33-35 Stewart Avenue, Hammondville	08.08.2024	1	Environmental Consulting Services Pty Ltd
Remediation Action Plan	33-35 Stewart Avenue, Hammondville NSW 2170	14.08.2024	1	Environmental Consulting Services Pty Ltd

Orders:

23. The Court orders:

1. The Appeal is upheld.

2. Development consent is granted to No. DA-461/2023, as amended, for the amalgamation of two separate land parcels and demolition of all existing structures in-order to construct a 2 storey x 110 place ‘Centre-Based Child Care Facility’ with a total of 30 car parking spaces over a basement level, on land legally described as Lot 5 in DP238358 and Lot 6 in DP238358 and known as 33 and 35 Stewart Avenue, Hammondville, subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

464868.23 Annexure A

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Decision last updated: 11 September 2024