Ibrahim v Canterbury-Bankstown Council

[2023] NSWLEC 1645

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ibrahim v Canterbury-Bankstown Council [2023] NSWLEC 1645

Hearing dates:

Conciliation Conference 7 and 29 September and 3 October 2023

Date of orders:

01 November 2023

Decision date:

01 November 2023

Jurisdiction:

Class 1

Before:

Espinosa 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 s 8.15(3) Environmental Planning and Assessment Act 1979 in the agreed sum of $5,500 within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development Consent is granted to Development Application DA-450/2022 for demolition of all structures on the site, removal of 7 trees (including 2 street trees) and the construction a 3-storey Childcare centre (for 81 children) with basement car parking, associated landscaping, connection to drainage easement and lot consolidation at 43-45 Graham Street, Narwee subject to conditions annexed and marked Annexure A.

Catchwords:

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

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.120, Ch 3, ss 3.3, 3.22, 3.23, 3.26, 3.27

Education and Care Services National Regulations 2011, regs 102, 107, 108, 109, 110, 111, 112, 113, 114, 115

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

Canterbury-Bankstown Local Environmental Plan 2023, cll 1.1AA, 1.8A

Canterbury Local Environmental Plan 2012, cll 2.7, 6.4, 6.6

Texts Cited:

Canterbury-Bankstown Community Participation Plan 2022

Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

Managing Land Contamination Planning Guidelines SEPP 55–Remediation of Land

Category:

Principal judgment

Parties:

Mariam Ibrahim (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

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

Solicitors:
Mills Oakley (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2023/111775

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 No DA-450/2022 for Demolition of all structures on the site, removal of seven (7) trees and the construction a three (3) storey centre-based child care facility for 84 children with one (1) basement level for car parking and planting of three (3) street trees (the Proposed Development) at 43 - 45 Graham Road, Narwee legally described as Lot 7 in DP 18954, Lot 6 in DP 18954, Lot Y in DP 3997814 (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 7 and 29 September and 3 October 2023. 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. In response to the matters raised in the Statement of Facts and Contentions filed by the Respondent on 9 May 2023 (SOFAC) and the matters discussed between the parties at the conciliation conference, the Applicant has made a series of amendments to the Proposed Development (Amended Application) which include the following amendments:

1. Provision of additional acoustic barriers to elevated play spaces;

2. Revised building materiality and design including the introduction of a pitched roof and provision of additional building cladding and façade louvres;

3. Reconfiguration of the outdoor play area to improve sight lines;

4. Provision of a 1m isle adjacent to parking space 19 to assist in vehicle manoeuvrability to parking space 12; and

5. Relocation of the Onsite Detention (OSD) tank to the north-eastern corner of the site.

5. The parties advise that the Amended Application does not require re-notification as the relevant officer of the Respondent has formed the opinion that the environmental impact of the amendments will be the same or lesser than the original Development Application, and that the impact on the owners and occupiers of adjoining land will not be detrimentally affected in any manner described in the relevant section of Council’s Community Participation Plan 2022.

6. 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.

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 provisions of the Education and Care Services National Regulations 2011 (Education and Care Regulation). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note to which I have had regard in setting out my reasons for how each jurisdictional prerequisite has been satisfied.

9. The Education and Care Regulation generally regulates the operation of Childcare centres and includes the following prescriptive controls with which the Proposed Development complies:

1. a minimum of 3.25m² of unencumbered indoor space is provided for each child (reg 107);

2. a minimum of 7m² of unencumbered outdoor space is provided for each child (reg 108);

3. adequate toilet facilities are provided in the development (reg 109);

4. the development is provided with indoor spaces that are adequately ventilated, have access to natural light and are capable of being maintained at a suitable temperature (reg 110);

5. adequate administrative and nappy change spaces are provided (regs 111-112); and

6. the development is designed with outdoor spaces that allow children to play and explore, with suitable shading and overall facilitates supervision (regs 113-115).

10. Pursuant to s 2.120 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), as the Site is located approximately 30m from the M2 Motorway the consent authority must take into consideration the associated Child Care Planning Guidelines 2021 (the Guidelines).

11. The proposed building meets the definition of a ‘centre-based child care facility’, as defined in s 3.3 of the Transport and Infrastructure SEPP. Accordingly, the DA is subject to assessment under Chapter 3 (‘Educational Establishments and Child Care Facilities’) of the Transport and Infrastructure SEPP. The Proposed Development complies with the development controls for early education and care facilities in Part 3.3 of the Transport and Infrastructure SEPP as follows:

1. Section 3.22 (Centre-based childcare facility—concurrence of Regulatory Authority required for certain development) – the Development Application complies with reg 107 (indoor unencumbered space requirements) and reg 108 (outdoor unencumbered space requirements);

2. Section 3.23 (Centre-based childcare facility—matters for consideration by consent authorities) - The Proposed Development has been designed and assessed in accordance with the provisions of the Child Care Planning Guideline (the Guidelines) as set out below; and

3. Section 3.26 (Centre-based child care facility—non discretionary development standards) – the development complies with the following standards:

1. Location – the development is not located in close proximity to an existing or proposed early education and care facility;

2. Indoor space – the development provides 3.25m² of indoor space for each child, in accordance with reg 107 of the Education and Care Regulations.

3. Outdoor Space – the development provides 7m² of outdoor space for each child, in accordance with reg 108 of the Education and Regulations.

4. Site area and site dimensions – the Site is not subject to any minimum area or dimension controls; and

5. Colour of building materials or shade structures – the development is not subject to any colour or building material controls.

4. Section 3.27 (Centre-based child care facility—development control plans) – the development is not subject to any Development Control Plan controls that regulate ages, age ratios, groupings, numbers or the like.

12. The Guidelines identifies issues that must be taken into consideration when assessing the Proposed Development. The Statement of Environmental Effects prepared by Dickson Rothschild dated June 2022 filed with the Class 1 Application at Tab 3, demonstrates that the Development Application meets each principle. The parties agree that the site is appropriate against all principles in the Guidelines as follows:

1. Principle 1 (Context) – there is adequate vehicular access via Graham Road, the design will integrate into the character of the medium-density residential area.

2. Principle 2 (Built Form) – the amended design achieves a scale and bulk that is in context with the surrounding locality through the additional articulation of the rear balconies incorporated into the design;

3. Principle 3 – (Adaptive Learning Spaces) – outdoor play spaces are included that are well designed and achieve a high level of amenity for children and staff, see Architectural Plans and Landscape Plans (Tab 7 and 8 of the amended Application);

4. Principle 4 – (Sustainability) - building form allows for cross ventilation, as well as acceptable solar access to the play areas, see Architectural Plans (Tab 8 of the amended Application);

5. Principle 5 – (Landscape) - updated Landscape Plans detail combined outdoor play areas with a total unencumbered area of 569m². The unencumbered outdoor area has been designed for diverse function and use, and offers age-appropriate play spaces and amenity, see updated Landscape Plans (Tab 7 of the Amended Application);

6. Principle 6 – (Amenity) - provides appropriate and efficient indoor and outdoor learning spaces, access to sunlight, natural ventilation, outlook, storage, service areas, and accessible areas. The parties rely on the following documents:

1. Amended Acoustic Impact Assessment Report prepared by Day Design (Tab 4 of the Amended Application);

2. Amended Architectural Plans prepared by Dickson Rothschild (Tab 8 of the Amended Application);and

3. Amended Landscape Plans prepared by Zenith Landscape Designs (Tab 7 of the Amended Application.

7. Principle 7 – (Safety) – evacuation explained within the Plan of Management prepared by Smarties Early Learning Centre (Tab 13 of the Class 1).

13. Pursuant to s 4.6(2) and 4.6(4), of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) as the development proposes a childcare centre, the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. A Preliminary Site Investigation (PSI) has been prepared by Coleman Adams Environmental in accordance with the Managing Land Contamination Planning Guidelines SEPP 55–Remediation of Land (Contaminated land planning guidelines). The PSI states that (page 6):

“Historical review has indicated that the site has been predominantly residential since at least 1955. Since being developed, the site and surrounding area has had minimal change, being predominantly residential.”

14. The PSI also considers an analysis of 5 soil samples from the site and concludes at page 6 that:

“The results of the chemical analyses indicate that the site does not present a risk to human health or the environment in a ‘commercial/industrial’ setting.”

15. The Respondent is satisfied that contamination has been adequately considered and the site is suitable for the proposed use in accordance with s 4.6 of the Resilience and Hazards SEPP.

16. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) details provisions regarding the preservation and management of vegetation in non-rural areas.

17. The Proposed Development seeks consent for the removal of six trees, being:

1. Four trees on the site including a Pittosporum undulatum (Sweet Pittosporum), 2 x Lagerstroemia indica (Crepe Myrtle) and an Acer negundo (Box Elder); and

2. Two Callistemon viminalis (Bottlebrush) located on the street.

18. The assessment of the parties concludes that the trees are appropriate for removal. The trees on the site do not comprise Koala Habitat Vegetation and removal will not trigger the Biodiversity offset scheme.

19. Accordingly, the removal of the trees is consistent with the Biodiversity and Conservation SEPP having regard to the tree species, integrity, level of significance and replacement planting as proposed in the landscape plans.

20. On 2 March 2023 the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP 2023) came into force, commencing on 23 June 2023 pursuant to cl 1.1AA and repealed the Canterbury Local Environmental Plan 2012 (CLEP).

21. As the Development Application had been lodged but not finally determined before 23 June 2023, the provisions of the CLEP are saved pursuant to cl 1.8A of the CBLEP 2023 and the provisions of the CBLEP 2023 operate as a draft environmental planning instrument.

22. The Proposed Development, defined as a ‘centre-based childcare facility’, is permissible with consent within the R4 High Density Residential zone.

23. The Proposed Development seeks consent for demolition pursuant to cl 2.7 of the CLEP (Drawing No DA-0-111 at Tab 5 of the Amended Application)

24. The Proposed Development has been designed and sited to mitigate any adverse environmental impact on the hydrological functions of the existing waterways and water flows by virtue of the design of the stormwater drainage solution for the site as shown in the Amended Stormwater Plans (Tab 4 of the Amended Application). Pursuant to cl 6.4(3) of the CLEP, the development:

1. is designed to maximise permeable surfaces;

2. includes stormwater filtration and retention through an OSD. Stormwater reuse on the site is not considered appropriate; and

3. avoids and mitigates significant adverse impacts of stormwater on adjoining properties, native bushland, and receiving water.

25. Development consent must not be granted unless the consent authority is satisfied that essential services for the development are available or that adequate arrangements have been made to make them available when required, pursuant to cl 6.6 of the CLEP. The development has access to the following essential services, as illustrated in the Survey plan filed with the Class 1 Application at Tab 10:

1. water;

2. electricity;

3. sewerage

4. stormwater drainage; and

5. vehicular access.

26. 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.

27. 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:

28. The Court notes that

1. Canterbury-Bankstown Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-450/2022 in accordance with the documents below:

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Architectural Plans
Cover Sheet	DA-0-001	H	14.09.2023	Dickson Rothschild
South Elevation Render	DA-0-002	B	20.06.2023	Dickson Rothschild
North Elevation Render	DA-0-003	B	20.06.2023	Dickson Rothschild
West Elevation Render	DA-0-004	B	20.06.2023	Dickson Rothschild
East Elevation Render	DA-0-005	B	20.06.2023	Dickson Rothschild
Project Summary	DA-0-006	F	20.06.2023	Dickson Rothschild
Site Location Plan	DA-0-101	B	13.06.2023	Dickson Rothschild
Site Context Plan	DA-0-102	B	13.06.2023	Dickson Rothschild
Site Context analysis	DA-0-103	B	13.06.2023	Dickson Rothschild
Site Analysis Plan	DA-0-104	B	13.06.2023	Dickson Rothschild
Demolition Plan	DA-0-111	C	13.06.2023	Dickson Rothschild
Site Plan	DA-0-121	F	14.09.2023	Dickson Rothschild
Site Plan – Details	DA-0-122	E	14.09.2023	Dickson Rothschild
Basement Plan	DA-0-210	M	14.09.2023	Dickson Rothschild
Ground Floor Plan	DA-0-211	M	14.09.2023	Dickson Rothschild
Level 1 Floor Plan	DA-0-212	M	14.09.2023	Dickson Rothschild
Level 2 Floor Plan	DA-0-213	M	14.09.2023	Dickson Rothschild
Roof Plan	DA-0-214	L	14.09.2023	Dickson Rothschild
Streetscape Elevation	DA-0-300	G	14.09.2023	Dickson Rothschild
North Elevation	DA-0-301	H	14.09.2023	Dickson Rothschild
South Elevation	DA-0-302	K	14.09.2023	Dickson Rothschild
West Elevation	DA-0-303	H	14.09.2023	Dickson Rothschild
East Elevation	DA-0-304	H	14.09.2023	Dickson Rothschild
Section 1	DA-0-401	H	14.09.2023	Dickson Rothschild
Section 2	DA-0-402	H	14.09.2023	Dickson Rothschild
Driveway Section	DA-0-403	K	14.09.2023	Dickson Rothschild
Section 3	DA-0-404	A	14.09.2023	Dickson Rothschild
GFA Diagrams	DA-0-901	E	20.06.2023	Dickson Rothschild
Indoor and Outdoor Space Diagrams	DA-0-902	E	20.06.2023	Dickson Rothschild
3D Height Plane	DA-0-921	E	14.09.2023	Dickson Rothschild
External Finishes and Materials	DA-0-941	C	13.06.2023	Dickson Rothschild
Shadow Analysis – 21st June – Sheet 1	DA-0-950	F	14.09.2023	Dickson Rothschild
Shadow Analysis – 21st June – Sheet 2	DA-0-951	F	14.09.2023	Dickson Rothschild
Shadow Analysis – 21st June – Sheet 3	DA-0-952	F	14.09.2023	Dickson Rothschild
Shadow Analysis – 21st March – Sheet 1	DA-0-953	F	14.09.2023	Dickson Rothschild
Shadow Analysis – 21st March – Sheet 2	DA-0-954	F	14.09.2023	Dickson Rothschild
Shadow Analysis – 21st March – Sheet 3	DA-0-955	F	14.09.2023	Dickson Rothschild
Views from Sun – Sheet 1	DA-0-961	F	14.09.2023	Dickson Rothschild
Views from Sun – Sheet 1	DA-0-962	F	14.09.2023	Dickson Rothschild
Amended Stormwater Plans
Basement Stormwater Plan	STO190522.1/6	E	15.09.2023	Raft Designs
Stormwater Drainage Plan	STO190522.2/6	E	15.09.2023	Raft Designs
OSD Cross Section	STO190522.3/6	E	15.09.2023	Raft Designs
First Floor Stormwater Drainage Plan	STO190522.4/6	E	15.09.2023	Raft Designs
Second Floor Stormwater Drainage Plan	STO190522.5/6	E	15.09.2023	Raft Designs
Roof Stormwater Drainage Plan	STO190522.6/6	E	15.09.2023	Raft Designs
Amended Landscape Plans
Landscape Plan	22-4682 L01	C	16.06.2023	Zenith Landscape Designs
First Floor Plan	22-4682 L02	C	16.06.2023	Zenith Landscape Designs
Existing Tree Plan	22-4682 L03	C	16.06.2023	Zenith Landscape Designs
Reports
Schedule of Amendments prepared by Dickson Rothschild dated 7 July 2023
Car Park Compliance Statement prepared by Terrafic dated 3 July 2023
Amended Acoustic Assessment prepared by Day Design dated 5 July 2023
BCA Memorandum prepared by J Squared dated 8 September 2023

2. The Applicant has filed the Amended Application with the Court on 4 October 2023.

Orders:

29. 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 s 8.15(3) Environmental Planning and Assessment Act 1979 in the agreed sum of $5,500 within 28 days of the date of this order.

2. The appeal is upheld.

3. Development Consent is granted to Development Application DA-450/2022 for demolition of all structures on the site, removal of 7 trees (including 2 street trees) and the construction a 3-storey Childcare centre (for 81 children) with basement car parking, associated landscaping, connection to drainage easement and lot consolidation at 43-45 Graham Street, Narwee subject to conditions annexed and marked Annexure A.

E Espinosa

Commissioner of the Court

Annexure A

Architectural Plans)

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Decision last updated: 01 November 2023