Hourigan v Cumberland Council

[2024] NSWLEC 1770

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hourigan v Cumberland Council [2024] NSWLEC 1770

Hearing dates:

Conciliation Conference held on 11 November 2024

Date of orders:

29 November 2024

Decision date:

29 November 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent is granted to DA2023/0551 for the demolition of existing structures, the consolidation of allotments and the construction of a 90 place centre based child care facility on the land at 33 Heather Street and 157-159 Girraween Road, Girraween, subject to the conditions of consent at Annexure ‘A’.

(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the development application, in the agreed sum of $1,000 within 28 days of these Orders being made.

Catchwords:

DEVELOPMENT APPEAL – child care centre – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.15, 8.7, Sch 1, Pt 2, s 23

Fisheries Management Act 1994

Land and Environment Court Act 1979, s 34

Water Management Act 2000

Children (Education and Care Services) Supplementary Provisions Regulation 2012

Cumberland Local Environmental Plan 2021, ss 4.3, 4.4, 5.1, 5.1A, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.9, 6.10, 6.14, 6.16

Education and Care Services National Regulations, regs 107, 108

Environmental Planning and Assessment Regulation 2021, s 38

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.25, 3.26, 3.3

Sydney Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, 6.5, 6.6, 6.7, 6.8, 6.9, 6.11, 6.12, 6.13, 6.14, 6.60

Category:

Principal judgment

Parties:

Paul Hourigan (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
A Seton (Solicitor)(Applicant)
C McFadzean (Solicitor)(Respondent)

Solicitors:
Marsdens Law Group (Applicant)
Cumberland Council (Respondent)

File Number(s):

2024/235097

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 refusal of Development Application DA2023/0551 seeking consent for the demolition of existing structures, the consolidation of allotments and the construction of a 90 place childcare centre with basement car park and associated site and landscaping works (Proposed Development) at 33 Heather Street and 157- 159 Girraween Road, Girraween legally described as Lot 2 in DP 508526, Lot 4 in DP 513689 and Lot 45 in DP 508726. (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 11 November 2024 and adjourned to 20 November 2024 by which time the parties had filed an agreement pursuant to s 34 of the LEC Act. I presided over the conciliation conference.

3. The parties’ experts agree that all contentions raised in the Statement of Facts and Contentions (SOFAC) filed by the Respondent on 9 July 2024 have been resolved by the preparation amended plans and documents referred to in the notations below at [35] and agreed conditions of consent.

4. 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.

5. 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.

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

7. Three public submissions were received in response to the notification of the Proposed Development, as summarised at par 57 of the SOFAC. A number of objectors also made oral submissions on site on the day of the conciliation conference. The parties say that on the matters raised by the objectors have either been addressed by the amended plans, are resolved by conditions or do not warrant refusal of the application. The amendments to the Proposed Development were not renotified as the Respondent formed the view that the amendments to the development did not increase its environmental impacts, in accordance with Sch 1, Pt 2, s 23 of the EPA Act.

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 Ch 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure), Ch 6 of the Sydney Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) and a number of provisions in the Cumberland Local Environmental Plan 2021 (CLEP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed written document.

9. The Site is zoned R2 Low Density Residential pursuant to the CLEP and centre-based child care facilities are permitted with consent in the R2 zone. Advertisements and advertising structures are prohibited in the R2 zone, but in the circumstances of this application are permissible as development that is ancillary to the centre-based child care facility.

10. The Site is subject to a maximum building height of 9 metres (m) under cl 4.3 of the CLEP and the proposed building height complies at 5.44m. The Site is not subject to a maximum floor space ratio (FSR) development standard under cl 4.4 of the CLEP. Section 3.25 of the SEPP Transport and Infrastructure sets a maximum FSR of 0.5:1 and the Proposed Development is compliant as the proposed FSR is 0.33:1.

11. The Site is not marked on the following maps pursuant to the CLEP:

1. the Land Reservation Acquisition Map (cll 5.1 and 5.1A);

2. the Acid Sulfate Soils Map (cl 6.1);

3. the Foreshore Building Line Map (cl 6.3);

4. the Biodiversity Map (cl 6.5);

5. the Riparian Lands and Watercourses Map (cl 6.6);

6. the Site Specific Provisions Map (cl 6.10);

7. the Design Excellence Map (cl 6.14);

8. the Key Sites Map (cl 6.16); and

9. Council’s flood mapping does not identify the Site as being below the flood planning area (SOFAC, at par 47) and on that basis, development consent is not required under cl 5.21(2) of the CLEP.

12. The Site does not contain a heritage item, is not within a heritage conservation area and is not in immediate proximity to a heritage item (cl 5.10, CLEP).

13. The Site is marked as potential moderate salinity on the Salinity Map. In relation to cll 6.9(3) and 6.9(4) of the CLEP and having regard to the topographic location of the Site, the parties agree that:

1. the development is not likely to have an adverse impact on salinity processes on the land;

2. salinity is not likely to have an impact on the development in any meaningful way;

3. the development’s design and siting will avoid any potential significant adverse environmental impact with regard to salinity; and

4. no conditions of consent are required to minimise or mitigate salinity related impacts.

14. Clause 6.4 of the CLEP requires the consent authority to be satisfied of the availability of various essential services, or that adequate arrangements have been made to make available access to the essential services. The Council is satisfied that services are available or can be made available for water supply, electricity supply, the disposal and management of sewage, stormwater drainage and suitable vehicular access.

15. Development consent is sought under cl 6.2 of the CLEP for the proposed basement excavation earthworks and in relation to the matters listed for consideration in cl 6.2(3), the parties’ position is that:

1. The excavation is unlikely to disrupt of detrimentally effect drainage patterns and soil stability in the locality.

2. The excavation is part of the Proposed Development of the Site and will not of itself stymie the Site’s future use or redevelopment.

3. The quality of soil to be excavated is of de minimis importance and not of determinative weight. Conditions 71 and 72, of the agreed conditions of consent at Annexure A, ensure the use of clean fill and disposal of excavated material to an appropriate destination.

4. The excavation is unlikely to have any discernible effect on the likely amenity of adjoining properties.

5. The likelihood of disturbing relics is low.

6. The Site is not proximate to a waterway, drinking water catchment of environmentally sensitive area.

7. Adverse impacts from earthworks can be managed by conditions of consent, including the provision and maintenance of sediment and erosion control measures at conditions 11 and 88.

16. In relation to stormwater management, cl 6.7(2) of the CLEP lists matters of which the consent authority must be satisfied prior to granting development consent. Those matters are satisfied for the reasons given in response to satisfaction of Ch 6 of the Biodiversity and Conservation SEPP below.

17. The Proposed Development is defined as a centre-based child care facility under s 3.3 of the SEPP Transport and Infrastructure. Concurrence of the Secretary of the Department of Education is not required for the Proposed Development pursuant to s 3.22 of the SEPP Transport and Infrastructure because the design of the indoor and outdoor play areas complies with regs 107 and 108 of the Education and Care Services National Regulations.

18. Section 3.26(2) SEPP Transport and Infrastructure contains non-discretionary development standards being:

(a)  location—the development may be located at any distance from an existing or proposed early education and care facility,

(b)  indoor or outdoor space

(i)  for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies—the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or

(ii) for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies—the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause,

(c)  site area and site dimensions—the development may be located on a site of any size and have any length of street frontage or any allotment depth,

(d)  colour of building materials or shade structures—the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area.

19. The development complies with (a), (b)(i), (c) and (d). Compliance with (b)(ii) is not required because the Children (Education and Care Services) Supplementary Provisions Regulation 2012 has been repealed.

20. Consistent with s.4.15(2) of the EPA Act, the consent authority is not entitled to take those standards into further consideration or refuse the application on those grounds or impose of conditions of consent to the effect of those standards.

21. Consideration of whether the Site is contaminated is required pursuant to s 4.6 of the Resilience and Hazards SEPP. By reference to s.4.6(4), the land does not contain a use referred to in Table 1 to the contaminated land planning guidelines but formerly included a market garden which is capable of falling within a Table 1 use for agricultural / horticultural activities.

22. Section 4.6(2) obliges the preparation and consideration of a preliminary site investigation report before determining the application. The Applicant relies on a Preliminary Site Investigation report, a Detailed Site Investigation (DSI) report and a Remediation Action Plan (RAP) all prepared by Martens Consulting Engineers and filed with the Class 1 Application. Subject to implementation of the RAP, the DSI concludes that the Site can be made suitable for the proposed child care centre. Based upon that conclusion together with consent conditions 64, 73 and 108, the parties are satisfied that the land will be remediated and suitable for the proposed use.

23. Chapter 6 of the Biodiversity and Conservation SEPP applies because the Site is within the Sydney Harbour Catchment area.

24. The Site is not mapped by council as being susceptible to the 1% annual exceedance probability flood or the probable maximum flood event (s 6.5, Biodiversity and Conservation SEPP).

25. In relation to s.6.6(1) considerations regarding water quality, it is agreed between the parties that:

1. subject to the installation and maintenance of sediment controls during building works, the development will have a neutral effect on the quality of water entering a waterway;

2. the development will not have an adverse impact on water flow in a natural waterbody;

3. the development will not increase stormwater runoff from the site;

4. the development will incorporate stormwater retention and reuse;

5. the development will have no impact on the level and quality of the water table;

6. cumulative environmental impacts from the development on the regulated catchment are negligible; and

7. the development makes adequate provision to protect the quality and quantity of groundwater.

26. Accordingly, the Court is satisfied that the effect on the quality of water entering a natural waterbody will be as close as possible to neutral and the development has negligible and satisfactory water flow impacts for a natural waterbody (s 6.6(2), Biodiversity and Conservation SEPP).

27. In relation to s.6.7(1) considerations regarding aquatic ecology, it is agreed between the parties that:

1. to the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor and not determinative of the application;

2. the development does not involve the clearing of riparian vegetation;

3. the development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway;

4. the development will not have an adverse impact on wetlands;

5. the development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures; and

6. the development does not adjoin a natural waterbody.

28. Accordingly, the Court is satisfied, pursuant to s 6.7(2) of the Biodiversity and Conservation SEPP, that:

1. any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development;

2. the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves;

3. no approval or permit is required under the Water Management Act 2000 or the Fisheries Management Act 1994;

4. the land does not abut a natural waterbody; and

5. there will be no adverse impact on wetlands.

29. In relation to s.6.8(1) considerations regarding flooding, the parties agree that the Proposed Development will have no impact on periodic flooding that benefits wetlands and other riverine ecosystems. Accordingly, the Court is satisfied that the Proposed Development will not result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody in the event of a flood nor will the Proposed Development have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems (s 6.8(2), Biodiversity and Conservation SEPP).

30. In relation to s.6.9(1) considerations regarding recreation and public access to land in the Sydney Harbour catchment area, the parties agree that:

1. the development will have no impact on recreational land uses in the Sydney Harbour catchment; and

2. the development has no impact on public access to and around foreshores.

31. Accordingly, the Court is satisfied, pursuant to s 6.9(2) of the Biodiversity and Conservation SEPP that:

1. the development has no impact on public access to and from natural waterbodies for recreational purposes;

2. the development does not involve new or existing points of public access to natural waterbodies; and

3. the land does not form part of a foreshore of a natural waterbody.

32. Finally, in relation to the Biodiversity and Conservation SEPP, the Site is not

1. within 100m of a natural waterbody (s 6.11),

2. within a riverine scenic area (s.6.12), a Hawkesbury-Nepean conservation area sub-catchment (s.6.13) or the Sydney Drinking Water Catchment (s.6.60); and

3. does not involve temporary use of land (s.6.14).

33. 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 in accordance with this judgment.

34. 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:

35. The Court notes that:

1. Cumberland Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application DA2023/0551 in accordance with the documents listed below (“the Amended Application”):

1.	Amended Architectural Plans prepared by Creative Drafting Services	12 September 2024
2.	Amended Landscaping plans prepared by Monaco Designs	26 August 2024
3.	Plan of Management, Revision 2	3 October 2024
4.	PDC Parking Design Statement	3 October 2024
5.	Amended stormwater plans prepared by Telford Civil	20 September 2024
6.	Council’s Stormwater and OSD Submission Checklist	20 September 2024
7.	Overhead Wires Compliance Assessment	18 September 2024

Orders:

36. The Court orders:

1. The appeal is upheld.

2. Development Consent is granted to DA2023/0551 for the demolition of existing structures, the consolidation of allotments and the construction of a 90 place centre based child care facility on the land at 33 Heather Street and 157-159 Girraween Road, Girraween, subject to the conditions of consent at Annexure ‘A’.

3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the development application, in the agreed sum of $1,000 within 28 days of these Orders being made.

E Espinosa

Commissioner of the Court

235097.24 Annexure A

235097.24 Architectural Plans

235097.24 Plan of Management

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Decision last updated: 29 November 2024