Helweh v Canterbury Bankstown Council

[2025] NSWLEC 1102

Land and Environment Court

New South Wales

Medium Neutral Citation:

Helweh v Canterbury Bankstown Council [2025] NSWLEC 1102

Hearing dates:

Conciliation conference on 22 November and 12 December 2024

Date of orders:

25 February 2025

Decision date:

25 February 2025

Jurisdiction:

Class 1

Before:

Thorpe AC

Decision:

The Court orders:

(1) The Applicant is granted leave to rely upon the amended plans and documents referred to in Note 2 of the s 34 Agreement.

(2) The appeal is upheld.

(3) Development Consent No. DA-1169/2022 is modified in the terms in Annexure A.

(4) Development Consent No. DA-1169/2022 as modified by the Court is contained in Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification of development consent – child care centre – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9

Land and Environment Court Act 1979, s 17, 34

Canterbury-Bankstown Local Environmental Plan 2023 cll 4.3, 4.4, 5.21, 6.2

Environmental Planning and Assessment Regulation 2021 s 113

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 6

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

State Environmental Planning Policy (Transport and Infrastructure) 2021 Ch 3

Texts Cited:

Canterbury-Bankstown Community Participation Plan

Category:

Principal judgment

Parties:

Malik Helweh (Applicant)
Canterbury Bankstown Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Canterbury Bankstown Council (Respondent)

File Number(s):

2024/303231

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns an application to modify a development consent for the demolition of existing structures and construction of a two storey centre-based childcare facility for 40 children and parking for 10 passenger vehicles in a basement level (approved development) at 77 Orchard Road, Bass Hill, legally described as Lot 23 in DP 30974 (site).

2. The original development application was granted approval subject to conditions of consent on 7 December 2022. Subsequently a modification application was lodged on 29 May 2024, which seeks consent to reconfigure and enlarge the facility to cater for an additional 10 children and an additional 2 basement parking spaces with an associated increase in staff from 6 to 8. Canterbury-Bankstown Council (Council) determined the modification application by way of refusal on 10 July 2024.

3. The subject appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 17(d) of the Land and Environment Court Act 1979 (Court Act). The final orders in this appeal are made as a result of an agreement between the parties that was reached at a conciliation conference.

4. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34 of the Court Act. The conciliation conference was held on 22 November and 12 December 2024. I presided over the conciliation conference.

5. Through the conciliation conference, an agreement under s 34(3) of the Court Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects Council's approval of amendments to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

6. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.56(1) of the EPA Act. The signed agreement is supported by an agreed statement of jurisdictional prerequisites (statement). Based on the statement, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.56(1A) of the EPA Act. As the original consent was granted by the Court pursuant to an agreement reached in conciliation, no reasons were given by the consent authority for the grant of the consent that is sought to be modified.

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I formed this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the following reasons:

8. Qualitatively, the proposal will not radically alter or transform the external form or appearance of the approved development, or its physical relationship with surrounding properties in terms of the key considerations of overshadowing, privacy, views, and visual bulk. The proposal involves a number of minor reconfigurations, with improvements to the outdoor play areas and pedestrian access from Orchard Road, a slight reduction in the fence height and the introduction of additional windows to the office and staff room and a more traditional pitched roof will have a positive impact on the streetscape. Gross floor area is reduced. The proposed modifications will have no material impact on the privacy or views enjoyed by the surrounding properties. The parties agree and I accept that the development will appear substantially the same.

9. Quantitatively, the proposed development as modified provides relatively small increases as outlined in the following table (jurisdictional statement, p 4):

10. The calculations for internal and outdoor storage and unencumbered indoor and outdoor play areas remain compliant with the relevant planning controls and Childcare Planning Guideline. The operational aspects of the childcare centre have been amended slightly to consider the increase in capacity but otherwise the proposed operating hours remain unchanged.

11. Having regard to the original and modified application I consider that the fundamental characteristics and essence of the proposed development remain unchanged by the proposed modification, and that the changes are not significant when considered qualitatively or quantitatively in the context of the development as a whole.

12. I have considered the relevant clauses of the Canterbury-Bankstown Local Environmental Plan 2023 (LEP). The amended application remains compliant with the height and floor space ratio controls in cll 4.3 and 4.4. The stormwater concept plans and geotechnical investigation have been updated, and I am satisfied that the requirements of cl 5.21 (flood planning) and 6.2 (earthworks) are met.

13. Although not relevant to an assessment of a modification application, I note that Chapter 3 of State Environmental Planning Policy (Transport and Infrastructure) 2021, s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, and ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 were considered in the grant of the original consent. The modified application remains compliant with these.

14. The modification application was notified in accordance with Council's Community Participation Plan. One submission was received and was considered in the preparation of Council's statement of facts and contentions. In accordance with Council's Community Participation Plan, the amended modification application was not re-notified as Council formed the opinion that the amendments had the same or lesser impacts on adjoining properties.

Conclusion

15. Based on the above details, 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. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

16. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.56(1A) and 4.15(1) of the EPA Act.

17. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders:

18. The Court orders:

1. The Applicant is granted leave to rely upon the amended plans and documents referred to in Note 2 of the s 34 Agreement.

2. The appeal is upheld.

3. Development Consent No. DA-1169/2022 is modified in the terms in Annexure A.

4. Development Consent No. DA-1169/2022 as modified by the Court is contained in Annexure B.

A Thorpe

Acting Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 25 February 2025