JKPB Investments Pty Ltd v The Council of Camden

[2023] NSWLEC 1441

Land and Environment Court

New South Wales

Medium Neutral Citation:

JKPB Investments Pty Ltd v The Council of Camden [2023] NSWLEC 1441

Hearing dates:

Conciliation conference on 1 August 2023

Date of orders:

10 August 2023

Decision date:

10 August 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on the amended Development Application.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the Applicant being allowed to rely upon the amended Development Application agreed in the amount of $2,000, within 28 days of these Orders.

(3) The appeal is upheld.

(4) Development Application No. DA/2022/1027/1, as amended, for the construction of a two-storey 80-place centre-based child care facility with basement car parking and associated site works at 19 Sultana Avenue, Leppington (Lot 55 DP 1260747) is determined by the grant of development consent subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of new 80-place child care centre – conciliation conference – amended plans and information – agreement between the parties – orders made

Legislation Cited:

Education and Care Services National Regulations, regs 107, 108

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15(3)

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, s 6.6

State Environmental Planning Policy (Precincts - Western Parkland City) 2021, Appendix 5, s 6.1

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

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

Cases Cited:

Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223

Texts Cited:

Camden Council Community Participation Plan

Child Care Planning Guideline

Category:

Principal judgment

Parties:

JKPB Investments Pty Ltd (Applicant)
The Council of Camden (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
L Raffaele (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
Bartier Perry Pty Ltd (Respondent)

File Number(s):

2023/37308

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant, JKPB Investments Pty Ltd, against the deemed refusal of their development application 2022/1027/1. The development application, as amended, seeks consent for the construction of a two-storey 80-place centre-based childcare facility with basement car parking and associated site works at 19 Sultana Avenue, Leppington.

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 1 August 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The development application was made by Janssen Designs as agent for JKPB Investments Pty Ltd with the written consent of the owners of the land: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [43].

2. The development application was notified in accordance with the Camden Council Community Participation Plan for a period of 36 days from 14 December 2022 until 18 January 2023. Three submissions were received in objection to the development application. I am satisfied that those public submissions have been taken into account in the determination of the development application.

3. State Environmental Planning Policy (Precincts - Western Parkland City) 2021 (WPC SEPP) applies to the site. The site is zoned C4 Environmental Living in Appendix 5 Camden Growth Centre Precinct Plan under the WPC SEPP. The proposed development (centre based child care facility) is permissible with consent in the C4 Environmental Living zone. In determining the development application, I have had regard to the objectives of the zone which are:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

4. Section 6.1 of Appendix 5 (Public Utility Infrastructure) applies to the site. I am satisfied that adequate arrangements have been made to ensure that electricity, water and sewer will be available to the site when required.

5. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. As part of the development application the Applicant has provided a Preliminary Site Investigation report prepared by GCA dated 19 May 2023 (PSI). The PSI concludes that the site is suitable for the proposed development subject to the implementation of the recommendations in Section 14 of the PSI. The annexed conditions require compliance with the recommendations of the PSI. I am satisfied that the requirements of s 4.6 of the RH SEPP are met.

6. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the site as it is in the Hawkesbury-Nepean Catchment. In determining the development application, I have given consideration to the matters referred to in s 6.6(1) of the BC SEPP. I accept the agreement of the parties that based on the documents accompanying the development application, including the stormwater plans and report, I can be satisfied of the matters in s 6.6(2) of BC SEPP.

7. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) concerns educational establishments and child care facilities and applies to the proposed development. Section 3.22 of SEPP TI requires concurrence of the Regulatory Authority in the event that the proposed development does not comply with the unencumbered indoor or unencumbered outdoor space requirements of reg 107 or 108 of the Education and Care Services National Regulations. I am satisfied with the agreed position of the parties that the proposed development complies with regs 107 & 108 and therefore concurrence from the Regulatory Authority is not required.

8. Section 3.23 of the SEPP TI requires the consent authority to consider “any applicable provisions of the Child Care Planning Guideline” in determining the development application. The development application sets out a consideration of those matters in the Statement of Environmental Effects (SEE) In accordance with s 3.23 and based on the SEE, I have considered the applicable provisions of the Child Care Planning Guideline.

9. Section 3.26(2) of SEPP TI sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. In particular, s 3.26(2)(b) of SEPP TI provides the requirements for indoor or outdoor space. The proposed development provides at least 3.25sqm of unencumbered indoor play space per child and at least 7sqm of unencumbered outdoor play space per child, consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations. The proposed development otherwise complies with the non-discretionary development standards.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

6. The Court notes that:

1. Camden Council, as the relevant consent authority has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA/2022/1027/1 to rely upon the following amended plans and documents:

1. Architectural Plan Nos. DA000, DA001, DA002, DA003, DA004, DA005, DA006, DA007, DA008, DA009, DA010, DA011, DA012, DA013, DA015, DA016, DA017, DA018, DA019 all Revision D and all dated 21 July 2023 prepared by Janssen Design together with Schedule of Amendments dated 23 June 2023 and updated 21 July 2023;

2. Landscape Plan Nos. L01 & L02 all Revision D all dated 20 July 2023 prepared by OutsideIn Design Group.

3. Letter from Capital Engineering Consultants dated 7 June 2023.

4. Stormwater Management Plans Nos SW001, SW010, SW020 & ER001 all Revision B and all dated 7 June 2023 prepared by Capital Engineering Consultants.

5. Civil Works Plans Nos CIVL001, CIVL010, CIVL011 and CIVL020 all Revision B and all dated 7 June 2023 prepared by Capital Engineering Consultants.

6. Environmental Noise Impact Assessment Report 7512-2.1 Rev A dated 23 June 2023 prepared by Day Design Pty Limited.

7. Updated Traffic & Parking Impact Assessment dated June 2023 prepared by Stanbury Traffic Planning.

8. Plan of Management dated 26 July 2023 prepared by Janssen Designs.

7. The Court orders that:

1. The Applicant is granted leave to rely on the amended Development Application.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the Applicant being allowed to rely upon the amended Development Application agreed in the amount of $2,000, within 28 days of these Orders.

3. The appeal is upheld.

4. Development Application No. DA/2022/1027/1, as amended, for the construction of a two-storey 80-place centre-based child care facility with basement car parking and associated site works at 19 Sultana Avenue, Leppington (Lot 55 DP 1260747) is determined by the grant of development consent subject to the conditions of consent in Annexure A.

D M Dickson

Commissioner of the Court

**********

Annexure A

Decision last updated: 10 August 2023