Ibrahim v Georges River Council

[2021] NSWLEC 1595

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ibrahim v Georges River Council [2021] NSWLEC 1595

Hearing dates:

Conciliation Conference on 28 September 2021

Date of orders:

14 October 2021

Decision date:

14 October 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Approval is granted to modification application MOD2020/0178, to modify development consent DA/2014/1197 to increase the number of children permitted at the centre from 48 to 58, adopt a new plan of management, make changes to the physical layout of the driveway entrance and basement parking and changes to the acoustic treatment and design of the existing building on the property known as 10 Lawrence Street, Peakhurst subject to the conditions of consent in Annexure B.

Catchwords:

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

Legislation Cited:

Education and Care Services National Regulations

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Hurstville Local Environmental Plan 2012, cl 2.3

Land and Environment Court Act 1979, ss 34, 39

Land and Environment Court Rules 2007, r 3.7

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 5, 22, 23

Texts Cited:

Child Care Planning Guideline

Hurstville Development Control Plan No 1

Category:

Principal judgment

Parties:

Mariam Ibrahim (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
J Lazarus SC (Applicant)
J Farrell (Respondent)

Solicitors:
Mills Oakley (Applicant)
Georges River Council (Respondent)

File Number(s):

2020/336594

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) being an Appeal against the deemed refusal of an application to modify a development consent MOD2020/0178 seeking to modify DA2014/1197 (the Proposed Modification) by seeking approval for amendments to an approved child care centre, including alterations and additions, an increase in total number of children from 48 to 58, landscaping and associated works on land identified as Lot 114 of Deposited Plan 36368 known as 10 Lawrence Street, Peakhurst (the Site).

2. The hearing of the proceedings commenced on 27 September 2021 and evidence was heard from an objector.

3. 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 28 September 2021. I have presided over the conciliation conference.

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 approval to modify the development consent 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. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to approve the modification to the development consent. 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 4.55 of the EPA Act to modify a consent, the provisions of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP) relating to development applications also apply to modification applications (cl 5(5)).

6. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed statement and I include the explanation of the parties below.

Jurisdictional Prerequisites

Owners’ consent

7. The owners of the Land are Mr Tarek Ibrahim and Ms Mariam Ibrahim. The Modification Application was made with the consent in writing of the owners of the Land (as evidenced in the Modification Application form at page 6 behind the Class 1 application).

Notification of the Modification Application

8. The Modification Application as originally lodged was notified in accordance with Council’s notification policy for 15 days and 13 submissions were received within the notification period, from 6 residents. Five further submissions were received after the close of the notification period, to 29 January 2021. These submissions were received, and considered, by the Respondent and are contained under Tab 14 of the Respondent’s Bundle of Documents.

9. The Modification Application was amended with consent of the Council on 12 August 2021 (First Amendment). The First Amendment did 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 proposal 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.

10. The Modification Application was further amended with the consent of the Council on 23 September 2021 (Second Amendment) (Notice of Motion filed on 22 September 2021 and Exhibit A). The Second Amendment did 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 proposal 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.

11. Two additional submissions were received by the Council prior to the hearing and these are also contained under Tab 14 of the Respondent’s bundle of documents filed with the Court and an oral submission was made on the first day of the hearing.

12. The Modification Application is finally amended in accordance with the s 34 agreement (Final Amendment). The Final Amendment 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 proposal 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.

Section 4.55(2) and (3) EPA Act

13. The Proposed Modification is a modification application pursuant to s 4.55(2) of the EPA Act.

14. Pursuant to s 4.55(2)(a), the Court is satisfied that the Modification Application as amended is substantially the same development as the 2016 Consent (Tab 7 of the Court book at page 16). For the purposes of subss 4.55(c) and (d), the Court is satisfied that the Modification Application as amended has been properly notified and submissions have been taken into consideration as set out above in this judgment.

15. For the purposes of s 4.55(3):

1. the matters referred to in s 4.15(1) “as are of relevance to the development the subject of the application” are dealt with below; and

2. the Court may approve the Modification Application as amended taking into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. I have read and considered the Assessment Report for 2016 Consent at folio 922 of the Respondent’s Bundle of Documents.

16. The Amended Statement Of Facts and Contentions (ASOFAC) filed 27 August 2021 refers to a number of environmental planning instruments as being relevant to the Development.

17. The first is the Hurstville Local Environmental Plan 2012 (HLEP) which applies to the Land and is of relevance to the Development. The Land is zoned R3 Medium Density under the HLEP and development for the purposes of a child care centre is permissible in the zone. Clause 2.3(2) of the HLEP requires that regard be had to the zone objectives. The parties agree that the Modification Application can be approved having regard to the objectives of the zone.

18. The second environmental planning instrument is the Child Care SEPP and the provisions of the Child Care SEPP relating to development applications also apply to modification applications (cl 5(5)).

19. For the purposes of cl 22, the concurrence of a regulatory authority is required because the outdoor play areas do not comply with Regulation 108 (Education and Care Services National Regulations). Although concurrence has not been granted, the Court can grant consent pursuant to section 39(6) of the LEC Act. The parties otherwise agree that the provision of outdoor play area including simulated outdoor play area in the Modification Application as amended is acceptable on the merits.

20. For the purposes of cl 23 the applicable provisions of the Child Care Planning Guideline have been considered.

21. Lastly, the Hurstville Development Control Plan No 1 (DCP) was identified in the ASOFAC as the relevant development control plan that applies to the Land. The parties agree that the Modification Application as amended can be approved having regard to the DCP.

Remaining matters in section 4.15(1) of the EPA Act

22. The parties agree that the Modification Application as amended can be approved taking into consideration the matters in s 4.15(1)(b) – (e) of the EPA Act.

23. The parties agree that the submissions of objectors are a relevant consideration under s 4.15(1)(d) of the EPA Act. The parties agree that the submissions of objectors can be taken into account and the Modification Application as amended approved.

24. 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 refer to and adopt the reasons given by the parties.

25. 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.

26. The Court notes that a copy of the amended application was uploaded on NSW Planning Portal on 28 September 2021 and is filed in these proceedings, comprising the documents set out in Annexure “A”.

27. The Court notes the agreement of the parties that the Applicant is to pay the Respondent’s costs in the agreed sum of $8,000 pursuant to r 3.7 of the Land and Environment Court Rules 2007 in satisfaction of all costs orders in these proceedings within 14 days of the date of the s 34 Agreement being, within 14 days of 28 September 2021.

Orders

28. The Court orders that:

1. The appeal is upheld.

2. Approval is granted to modification application MOD2020/0178, to modify development consent DA/2014/1197 to increase the number of children permitted at the centre from 48 to 58, adopt a new plan of management, make changes to the physical layout of the driveway entrance and basement parking and changes to the acoustic treatment and design of the existing building on the property known as 10 Lawrence Street, Peakhurst subject to the conditions of consent in Annexure B.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (215710, pdf)

Annexure B (338379, pdf)

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Decision last updated: 14 October 2021