JMJ Homes Pty Ltd v Cumberland Council

[2024] NSWLEC 1386

Land and Environment Court

New South Wales

Medium Neutral Citation:

JMJ Homes Pty Ltd v Cumberland Council [2024] NSWLEC 1386

Hearing dates:

Conciliation conference 27 May 2024

Date of orders:

09 July 2024

Decision date:

09 July 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application 2023/0412, as amended, for demolition of the existing dwelling house and construction of a 124-place centre based child care facility with basement parking and associated civil and landscaping works, at 77 Smith St, Wentworthville subject to conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – centre-based child care centre – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Cumberland Local Environmental Plan 2021, cll 2.3, 2.7, 4.3, 6.2, 6.4, 6.7, 6.9

Education and Care Services National Regulations

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.9

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

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

Texts Cited:

Child Care Planning Guideline

Category:

Principal judgment

Parties:

JMJ Homes Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Cumberland Council (Respondent)

File Number(s):

2023/345927

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 deemed refusal of development application DA2023/0412 for the demolition of existing structures and construction of a centre based child care facility accommodating 124 children at 77 Smith St Wentworthville and legally described as Lot Y in DP 407866 7 (DA).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 May 2024 with subsequent material received by the Court thereafter. I have presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the Applicant amending DA2023/0412 in accordance with the documents listed at [25] (amended DA).

4. The changes are summarised as follows:

• Increased driveway setback to 2m from the eastern boundary

• Rear setback increased from 7.78m to 9m

• Internal reconfiguration

• Reduction in built form to comply with the outdoor space requirements

• Changes to the acoustic barriers

• Additional windows to room 1

5. As part of the conciliation conference process, 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 for the amended application and granting development consent to the amended application subject to conditions of consent.

6. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. 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.

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

Jurisdictional Prerequisites

9. 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 and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

10. I am satisfied that owners consent accompanied the DA. The Respondent notified the DA between 7-21 September 2023. Eight submissions were received. The Court and the parties heard oral submissions at the commencement of the s 34 conciliation conference.

11. In reaching agreement, the parties have considered the concerns raised.

Cumberland Local Environmental Plan 2021 (CLEP)

12. The subject site is zoned R2 Low Density Residential pursuant to the CLEP, where the proposed development is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 demolition applies, which is sought in the amended DA.

13. Clause 4.3 height of buildings applies, which allows a maximum height of 9m. The amended Architectural Plans prepared by Janssen Designs (architectural plans) show that the amended DA is 8.67m in height (Elevations, dwg A009).

14. Clause 6.2 earthworks applies to the proposed development. I accept the parties’ agreement that adequate consideration has been given to the provisions on the basis of the amended Architectural Plans (cut and fill diagram A020), amended stormwater drawings prepared by United Consulting Engineers Pty Ltd dated 27 May 2024 (amended SW plans), Waste Management Plan dated 5 June 2023, Statement of Environmental Effects prepared by Think Planners dated 27 June 2023 (SEE) and conditions of consent at Annexure A.

15. Clause 6.4 applies to the site. The parties agree and I accept with consideration of the SEE that adequate arrangements have been made for the required essential services.

16. Clause 6.7 applies to the site. I accept the parties’ agreement that the provisions are satisfied through incorporation of permeable deep soil areas, the reuse of water utilising watertanks and adequate stormwater management to minimise impacts to adjoining properties with consideration of the amended SW plans.

17. Clause 6.9 salinity applies to the site. With consideration of the SEE, agreed submissions of the parties and conditions of consent at Annexure A, I accept that the provisions have been satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)

18. The provisions of s 4.6 of SEPP RH apply to the site. The proposed development is accompanied by a Preliminary Site Investigation report prepared by Ideal Geotech dated 25 May 2023 (PSI) which found no contamination on site and made recommendations for further assessment post demolition works, to ensure that those demolition works do not cause any contamination. The recommendations have been included in the conditions of consent at Annexure A. Accordingly, the parties agree, and I am satisfied, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP RH)

19. Chapter 6 applies to the site, which is located in the Sydney Water Catchment. With consideration of the amended SW plans and jurisdictional statement that outlines the neutral effect on the quality of water and water flow, I accept the agreed submissions of the parties and am satisfied that ss 6.6, 6.7 and 6.9 of SEPP BC have been met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

20. Chapter 3 Educational establishments and child care facilities of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) applies to the proposed development.

21. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 of SEPP Transport and Infrastructure. Based on the SEE and agreed submissions, I have considered the provisions of ss 3.22, 3.23, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

Conclusion

22. 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.

23. 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.

24. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

25. The Court notes that the Respondent has approved, as the relevant consent authority, under s 38(1) of the EPA Reg to the Applicant amending DA2023/0412 to rely upon the following amended plans and documents:

Reference/Dwg No	Title/Description	Revision	Date/s
Architectural plans prepared by Janssen Designs, Job Number 10240:
A000	Cover Page	B	15-2-2024
A001	Calculations and LEP Controls
A002	Site Context Plan
A003	Demolition Plan	C	27-05-2024
A004	Site Analysis Plan	B	15-2-2024
A005	Basement Plan	C	27-05-2024
A006	Ground Floor Plan	B	15-2-2024
A007	First Floor Plan
A008	Roof Plan
A009	Elevations	C	27-05-2024
A010	Elevations & Section	B	15-2-2024
A013	Shadow Diagram 9am June 21st
A014	Shadow Diagram 12 noon June 21st
A015	Shadow Diagram 3pm June 21st
A016	Covered Outdoor Area Diagram – Ground Floor
A017	Covered Outdoor Area Diagram – First Floor
A018	Emergency Evacuation Plan, Ground Floor
A019	Emergency Evacuation Plan, First Floor
A020	Cut and Fill Diagram
A021	Kitchen Detail Plan	6-4-23
A023	GFA Calculation Diagram – Ground Floor	B	15-2-24
A024	GFA Calculation Diagram – First Floor
A025	Acoustic Barrier Detail
A022	Colour and Finishes Schedule	A	6-4-2023
Landscape Plans prepared by Canvas Landscape Architects:
DA-L101	Landscape Plan- Ground Floor	C	10-5-2024
DA-L102	Landscape Plan- Ground Floor	B	4-4-2024
DA-L103	Landscape typical details, proposed plant schedule & maintenance program
Stormwater Plans prepared by United Consulting Engineers Pty Ltd:
23MB9222/D01, Sheet 1 of 5	Roof and Level 1 Drainage Plan	D	27/5/2024
23MB9222/D02, Sheet 2 of 5	Ground Floor Drainage Plan
23MB9222/D03, Sheet 3 of 5	Basement Drainage Plan
23MB9222/D04, Sheet 4 of 5	Drainage Sections & Details
23MB9222/D05, Sheet 5 of 5	OSD Catchment Plan
Other Documents & Reports:
7784-1.1R, Revision B	Environmental Noise Impact Assessment	Day Design Pty Ltd	10-5-2024
Revision 3	Plan of Management	-	24-5-2024

Orders

26. The Court orders:

1. The Applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

2. The appeal is upheld.

3. Development consent is granted to Development Application 2023/0412, as amended, for demolition of the existing dwelling house and construction of a 124-place centre based child care facility with basement parking and associated civil and landscaping works, at 77 Smith St, Wentworthville subject to conditions at Annexure A.

S Porter

Commissioner of the Court

**********

Annexure A

Decision last updated: 09 July 2024