JAYC Pty Ltd v Liverpool City Council

[2023] NSWLEC 1573

Land and Environment Court

New South Wales

Medium Neutral Citation:

JAYC Pty Ltd v Liverpool City Council [2023] NSWLEC 1573

Hearing dates:

Conciliation conference on 3 August and 12 September 2023

Date of orders:

29 September 2023

Decision date:

29 September 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as agreed or assessed as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is upheld.

(3) Development application DA-2/2023 for the demolition of structures and the construction of a two-storey child care centre for 120 children with basement car parking at 31 Balanada Avenue, Chipping Norton NSW 2017 is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: centre based child care facility in R3 Medium Density Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 4.3, 4.4, 5.10, 7.7

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

State Environmental Planning Policy (Transport & Infrastructure) 2021, ss 3.23, 3.26

Texts Cited:

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

Category:

Principal judgment

Parties:

JAYC Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
N Touma (Solicitor) (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Lionheart (Applicant)
Bartier Perry (Respondent)

File Number(s):

2023/60391

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 following the deemed refusal by Liverpool City Council (the Respondent) of Development Application DA-2/2023 seeking development consent for the demolition of existing structures and the construction of a two-storey child care centre for 120 children with basement car parking at 31 Balanada Avenue, Chipping Norton that is otherwise legally described as Lots 3, 4 & 5 in DP 1222715.

2. On 3 August 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided.

3. At the conciliation conference, the parties reached agreement on the matters in contention, subject to the preparation of amended plans and other documents, for which the Court granted an adjournment on two occasions.

4. A signed agreement was filed with the Court on 13 September 2023, in accordance with s 34(10) of the LEC Act.

5. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

8. The development application, lodged on 6 January 2023, is supported by the written consent of the owner. The Council advertised the development application between 24 January - 9 February 2023 during which one submission was received.

9. The Site is located within the R3 Medium Density Residential zone according to the Liverpool Local Environmental Plan 2008 (LLEP), in which centre based child care facilities are permitted with consent, where consistent with the following objectives of the zone:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for a concentration of housing with access to services and facilities.

•  To provide for a suitable visual transition between high density residential areas and lower density areas.

•  To ensure that a high level of residential amenity is achieved and maintained.

10. The height standard applicable to the Site is 8.5m under cl 4.3 of the LLEP with which the proposal complies.

11. Likewise, the proposed development complies with the Floor Space Ratio standard of 0.5:1 at cl 4.4(2) of the LLEP.

12. The site is not identified as an item of heritage significance, and is not within a heritage conservation area within the terms of cl 5.10 of the LLEP. Nor is the site within an area of Acid Sulfate Soils and so the provisions of cl 7.7 do not apply.

State Environmental Planning Policy (Transport & Infrastructure) 2021

13. Section 3.23 of State Environmental Planning Policy (Transport & Infrastructure) 2021 (Infrastructure SEPP) requires consideration of the provisions of the Child Care Planning Guidelines (the Guidelines) before determining a development application.

14. On the basis of the assessment of the proposal against the relevant provisions of the Guidelines that is set out at pp 33-57 of the Statement of Environmental Effects prepared by Think Planners dated 16 December 2022, I accept that the Guidelines have been considered.

15. Included in the assessment against the Guidelines is an assessment of the indoor and outdoor unencumbered space requirements that are the subject of the non-discretionary standards at s 3.26 of the Infrastructure SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. On the basis of the conclusions recorded in the Preliminary Environmental Site Investigation prepared by Environmental Consulting Services dated 16 December 2022, I consider the site suitable for the development proposed pursuant to s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021.

Conclusion

17. 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.

18. 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.

19. The Court notes:

1. that Liverpool City Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicants amending Development Application DA-2/2023, in accordance with the following plans and documents:

Description	Drawing No.	Rev No.	Prepared by	Date
Architectural Plans
Compliance Table, Location Plan	01	C	Baini Design Pty Ltd	4 August 2023
Site Plan	09	C	Baini Design Pty Ltd	4 August 2023
Basement Floor Plan	10	C	Baini Design Pty Ltd	4 August 2023
Ground Floor Plan	11	C	Baini Design Pty Ltd	4 August 2023
First Floor Plan	12	C	Baini Design Pty Ltd	4 August 2023
Roof Plan	13	C	Baini Design Pty Ltd	4 August 2023
Elevations	14	C	Baini Design Pty Ltd	4 August 2023
Elevations	15	C	Baini Design Pty Ltd	4 August 2023
Sections	16	C	Baini Design Pty Ltd	4 August 2023
Callout Elevations	17	C	Baini Design Pty Ltd	4 August 2023
Kitchen & Laundry Details	18	C	Baini Design Pty Ltd	4 August 2023
Schedule of Finishes	22	C	Baini Design Pty Ltd	4 August 2023
GF Gross Floor Calculation Plan	23	C	Baini Design Pty Ltd	4 August 2023
FF Gross Floor Calculation Plan	24	C	Baini Design Pty Ltd	4 August 2023
GF Outdoor Play Area Calculation Plan	25	C	Baini Design Pty Ltd	4 August 2023
FF Outdoor Play Area Calculation Plan	26	C	Baini Design Pty Ltd	4 August 2023
Solar Access Plans	27	C	Baini Design Pty Ltd	4 August 2023
Calculation Plan – 0-2 Indoor Play Area	28	C	Baini Design Pty Ltd	4 August 2023
GF – Fencing Details	31	C	Baini Design Pty Ltd	4 August 2023
FF – Fencing Details	32	C	Baini Design Pty Ltd	4 August 2023
Streetscape Elevations	34	C	Baini Design Pty Ltd	4 August 2023
Accessible Detail – Basement Floor	35	C	Baini Design Pty Ltd	4 August 2023
Accessible Detail – Ground Floor	36	C	Baini Design Pty Ltd	4 August 2023
Accessible Detail – First Floor	37	C	Baini Design Pty Ltd	4 August 2023
Stormwater Plans – Drainage Plans
Specifications Sheet	S101	3	Deboke Engineering Consultants	21 August 2023
Basement Plan	S200	3	Deboke Engineering Consultants	21 August 2023
Ground Floor Plan 1 of 2	S201	3	Deboke Engineering Consultants	21 August 2023
Ground Floor Plan 2 of 2	S202	3	Deboke Engineering Consultants	21 August 2023
First Floor Plan	S203	3	Deboke Engineering Consultants	21 August 2023
Roof Plan	S204	3	Deboke Engineering Consultants	21 August 2023
Details Sheet 1 of 4	S300	3	Deboke Engineering Consultants	21 August 2023
Details Sheet 2 of 4	S301	3	Deboke Engineering Consultants	21 August 2023
Details Sheet 3 of 4	S302	3	Deboke Engineering Consultants	21 August 2023
Details Sheet 4 of 4	S303	3	Deboke Engineering Consultants	21 August 2023
Erosion and Sediment Control Plan	S400	3	Deboke Engineering Consultants	21 August 2023
Stormwater Plans – Civil Plans
Specifications Sheet	S101	1	Deboke Engineering Consultants	11 August 2023
General Arrangement Plan	S200	1	Deboke Engineering Consultants	11 August 2023
Grading Plan	S300	1	Deboke Engineering Consultants	11 August 2023
Slope Analysis Plan	S301	1	Deboke Engineering Consultants	11 August 2023
Bulk Earthwork Plan	S302	1	Deboke Engineering Consultants	11 August 2023
Driveway Long Sections	S400	1	Deboke Engineering Consultants	11 August 2023
Council Standard Drawings	S500	1	Deboke Engineering Consultants	11 August 2023
Council Standard Drawings	S501	1	Deboke Engineering Consultants	11 August 2023
Landscape Plans
Landscape Concept	L - 01	B	Outside In Design Group	22 August 2023
Landscape Concept First Floor	L - 02	B	Outside In Design Group	22 August 2023
Streetscape Elevation Balanada Avenue	L - 03	B	Outside In Design Group	22 August 2023

Description	Rev	Prepared by	Date
Plan of Management	Version 2	Think Planners	22 August 2023
Accessibility Compliance Statement	B	Access Link Consulting Pty Ltd	22 August 2023
Traffic & Parking Statement – Post Section 34	-	Hemanote Consultants Pty Ltd	22 August 2023
Vehicle Swept Paths	-	Hemanote Consultants Pty Ltd	22 August 2023
Environmental Noise Assessment 7609-1.1	Rev A	Day Design Pty Ltd	23 August 2023

2. The Applicant filed the Amended Plans and other documents with the Court on 13 September 2023.

Orders

20. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as agreed or assessed as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development application DA-2/2023 for the demolition of structures and the construction of a two-storey child care centre for 120 children with basement car parking at 31 Balanada Avenue, Chipping Norton NSW 2017 is determined by the grant of development consent subject to the conditions in Annexure A.

T Horton

Commissioner of the Court

**********

Annexure A

Decision last updated: 29 September 2023