Josam Group Pty Ltd v City of Parramatta Council

[2024] NSWLEC 1565

Land and Environment Court

New South Wales

Medium Neutral Citation:

Josam Group Pty Ltd v City of Parramatta Council [2024] NSWLEC 1565

Hearing dates:

Conciliation conferences on 22 March, 15 May and 28 June 2024

Date of orders:

17 September 2024

Decision date:

17 September 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the sum agreed or assessed, such amount to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development Application No. 70/2023 for the demolition of existing structures and the removal of Tree 3, and construction of a two-storey Centre Based Child Care Facility for 72 children and parking for 18 vehicles in a basement level, at Lot 18 DP9899 also known as 57 Ballandella Road, Toongabbie NSW 2146, is approved subject to the conditions included in Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.42, 4.15, 4.16, 4.17, 8.7, 8.15, Sch 1 Div 2 s 7

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Regulation 2021, s 38

Parramatta Local Environmental Plan 2011 (repealed), cll 2.2, 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.5, 6.6, 6.7

Parramatta Local Environmental Plan 2023, cl 1.8A

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 6.7, 6.7, 6.8, 6.9

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.23, 3.25, 3.26

Texts Cited:

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

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

Josam Group Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
K Law (Solicitor) (Respondent)

Solicitors:
Centurion Lawyers (Applicant)
Matthews Folbigg (Respondent)

File Number(s):

2023/287010

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 70/2023 (the DA) for the demolition of existing structures and the construction of a two-storey 72 place Centre-Based Child Care Facility including basement parking at Lot 18 DP 9899 known as 57 Ballandella Road, Toongabbie NSW 2146 (the site).

2. The proposal as lodged and advertised provided for basement carparking for 18 cars with two levels above.

3. 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 22 March 2024. I presided over the conciliation conference, which began with an on-site view. The objector to the proposed development did not attend the on-site view.

4. The s 34 conciliation conference was adjourned a number of times to allow for amended plans to be prepared by the Applicant and assessed by the Respondent, and to enable the parties to come to an agreement over the proposed development.

5. At the conciliation conference on 28 June 2024, the parties indicated that they had 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 amended DA subject to conditions.

6. A signed s 34 agreement with Annexure A was filed with the Court on 28 June 2024, with amended plans (the amended DA) as agreed between the parties was filed with the Court on 1 July 2024. An amended s 34 agreement was filed with the Court on 6 September 2024. The amended s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

7. The main changes made to the DA in the amended DA include the provision of:

1. Updated landscape and stormwater plans;

2. Agreed acoustic measures; and

3. Updated Plan of Management for the proposed development.

8. 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.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the amended s 34 agreement, and those requirements have been satisfied as follows below.

Jurisdictional Matters

Owner’s consent

11. The parties advise that owner’s consent has been provided in respect of the DA lodged for the site.

Community Participation (Sch 1, Div 2, s 7(1)) - Environmental Planning and Assessment Act1979

12. The DA was advertised and notified to surrounding properties by the Respondent between 15 February and 8 March 2023. One submission was received in response to the notification of the DA.

Conditions

13. The amended s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

The Parramatta Local Environmental Plan 2011

14. The parties advise that the Parramatta Local Environmental Plan 2011 (repealed) (the LEP) is the relevant local environmental planning instrument that applies to the site. The Parramatta Local Environmental Plan 2023 (the LEP 2023) does not apply to the DA as it was lodged but not finally determined prior to the LEP 2023 coming into effect (cl 1.8A of the LEP 2023). Under the LEP provisions:

1. The site is zoned R2 Low Density Residential pursuant to cl 2.2 of the LEP; and

1. Pursuant to cl 2.3 of the LEP, the proposed development for centre-based child care facilities is permissible with consent in the R2 zone; and

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

2. Clause 2.7 of the LEP provides that the demolition of a building or work requires development consent;

3. Pursuant to cl 4.3 of the LEP, the maximum height of buildings on the site is 9 metres; and

1. The maximum height of the proposed development is 9 metres, and thus complies with cl 4.3.

4. A 0.5:1 maximum floor space ratio applies to the site pursuant to cl 4.4 of the LEP. The proposed development provides a 0.43:1 floor space ratio (FSR), therefore complying with cl 4.4 of the LEP;

5. Clause 5.10 of the LEP relates to heritage. The parties advise that the site is not listed as a heritage item, nor are there any heritage items that are likely to be affected by the development;

6. The parties advise that the matters in cl 5.21 of the LEP relating to flood planning are not relevant as the site is not identified as being within flood prone land;

7. Clause 6.1 of the LEP relates to Acid Sulfate Soils. The parties advise that the site is identified as being affected by Class 5 Acid Sulfate Soils under the Acid Sulfate Soils Map in the LEP. The proposed development is not located within 500m of adjacent Class 1, 2, 3 or 4 Acid Sulphate soils; and

1. the parties submit that the proposed development will not have any adverse impact on the site or on its surrounds.

8. Clause 6.2 of the LEP relates to earthworks. The parties advise that the proposed high quality level building platform will have minimal adverse environmental or amenity impacts, and that the proposed excavation is considered unlikely due to the location of the site to lead to the disturbance of relics; and

1. The DA is supported by a Preliminary Site Investigation Report dated 23 January 2023 prepared by Environmental Consulting Services (the Site Investigation Report).

9. The parties advise that the matters in cl 6.4 of the LEP relating to Biodiversity are not relevant as the site is not identified on the Natural Resources Biodiversity Map in the LEP;

10. The parties advise that the matters in cl 6.5 of the LEP relating to Water Protection are not relevant as the site is not identified on the Natural Resources Riparian Land and Waterways Map;

11. The parties advise that matters in cl 6.6 of the LEP relating to Development on Landslide risk land are not relevant as the site is not identified as being subject to landslide risk; and

12. The parties advise that the matters in cl 6.7 of the LEP relating to Foreshore building line are not relevant as the site is not within close proximity of the foreshore and is not located within the foreshore building line.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) contains planning rules and controls relating to the clearing of native vegetation in NSW on land zoned for urban and environmental purposes.

16. The amended DA proposes the removal of one tree (Tree 3 as identified in the Arboricultural Impact Assessment and Tree Management Plan dated 14 December 2022 prepared by Horticultural Management Services) to facilitate the proposed development. The matters arising under Ch 2 of the Biodiversity SEPP do not apply to the proposed development, and as such, are not a jurisdictional requirement for the Court to consider. This is because the Applicant has not applied to remove the tree under permit, but rather seeks development consent to remove the trees under the EPA Act.

17. The parties advise that the Court can be satisfied that consent can be granted because:

1. the Arboricultural Impact Assessment and Tree Management Plan dated 14 December 2022 (the Arboricultural Report) prepared by Horticultural Management Services concludes based on the findings of their investigations that existing trees must be removed and landscaping embellishing works including the planting of new trees in the setback areas which will improve and enhance the site and positively contribute to the cohesiveness and visual appreciation of the area, providing that the recommendations in Section 12 of the Aboricultural Report are undertaken for the development and tree retention.

18. Chapter 6 of the Biodiversity SEPP applies to the proposed development as the site is located within the Sydney Harbour Catchment. The Biodiversity SEPP seeks to manage and promote integrated catchment management policies. The parties advise that:

1. The site is more than 350 metres from Darling Mills Creek and more than 1 kilometre from Parramatta River;

2. The site is not flood prone and an appropriate detailed drainage concept and erosion and sediment controls are proposed;

3. The Court can be satisfied as to the matters contained in ss 6.6(2), 6.7(2), 6.8(2) and 6.9(2) of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out; and the parties advise that:

1. There is no indication that the site is contaminated. There is no immediate site condition which warrants further investigation in relation to contamination; and

2. The Site Investigation Report confirms that based on the findings of their investigation, the site is considered suitable for proposed redevelopment and land use, providing that the recommendations in Section 10 of the Site Investigation Report are undertaken to address any potential hazardous material prior to demolition and a hazardous building material survey should be undertaken by a suitably qualified consultant.

20. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

21. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport and Infrastructure SEPP) aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW; and

1. Section 3.23 of the Transport and Infrastructure SEPP requires that the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines, before determining a development application;

2. Section 3.25 of the Transport and Infrastructure SEPP provides that development consent must not be granted for the purposes of a centre-based child care facility in Zone R2 Low Density Residential if the FSR for the building on the site of the facility exceeds 0.5:1. The parties advise that the proposed development provides a 0.43:1 FSR, thus complying with this requirement;

3. Section 3.26 of the Transport and Infrastructure SEPP 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; and

4. The parties submit that the amended DA complies with Ch 3, s 3.26 of the Transport and Infrastructure SEPP.

Education and Care Service National Regulations 2011

22. The Education and Care Services National Regulations 2011 (the Regulations) provide extensive controls and requirements in addition to that of Local Environmental Plans and Development Control Plans and includes licensing and approvals processes, including documentation requirements; facilities and equipment requirements; staffing requirements; child number requirements; operational requirements; administrative requirements; and probity check requirements; and

1. The parties advise compliance with the requirements of the Regulations has been assessed and is detailed in the Statement of Environmental Effects (the SEE) supporting the proposed development.

Child Care Planning Guideline 2021

23. The Child Care Planning Guideline 2021 establishes the assessment framework to deliver consistent planning outcomes and design quality for centre based child care facilities in NSW. Section 3.23 of the Transport and Infrastructure SEPP requires that the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline 2021 before determining a development application; and

1. The parties advise that the amended DA complies with the Child Care Planning Guideline 2021 as detailed in the SEE.

The Parramatta Development Control Plan 2011

24. The Parramatta Development Control Plan 2011 (the DCP) applies to the site; and

1. The parties advise that compliance with the DCP as it relates to child care centres within the Local Government Area is set out in the SEE accompanying the DA, although noting that the provisions of a development control plan made for the purposes of s 3.42(1) of the EPA Act are not, of themselves, statutory requirements.

Conclusion

25. Having considered the advice of the parties provided above at [11]-[24], I am satisfied that:

1. The Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. Approval of the proposed development is in the public interest.

26. Further, 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.

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.

28. The Court notes:

1. That the City of Parramatta Council, as consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application No. 70/2023 made on 28 June 2024 to rely on the documents and plans specified below (the amended development application):

Drawing No.	Revision	Title	Prepared By	Date
Architectural Drawings
01	D	Compliance Table	Baini Design	07/06/2024
02	D	Site Context Plan	Baini Design	07/06/2024
03	D	Site Analysis Plan	Baini Design	07/06/2024
04	D	Demolition Plan	Baini Design	07/06/2024
05	D	9AM Shadow Diagram	Baini Design	07/06/2024
06	D	12PM Shadow Diagram	Baini Design	07/06/2024
07	D	3PM Shadow Diagram	Baini Design	07/06/2024
08	D	Site Plan	Baini Design	07/06/2024
09	D	Basement Floor	Baini Design	07/06/2024
10	D	Ground Floor	Baini Design	07/06/2024
11	D	First Floor Plan	Baini Design	07/06/2024
12	D	Roof Plan	Baini Design	07/06/2024
13	D	Elevations	Baini Design	07/06/2024
14	D	Elevations	Baini Design	07/06/2024
14.1	D	Sections – OSD tank	Baini Design	07/06/2024
15	D	Kitchen & Laundry Details	Baini Design	07/06/2024
16	D	Typical Nappy Change	Baini Design	07/06/2024
17	D	Craft Bench Detail	Baini Design	07/06/2024
18	D	Bottle Prep Detail	Baini Design	07/06/2024
19	D	Schedule of Finishes	Baini Design	07/06/2024
20	D	Ground FSR	Baini Design	07/06/2024
20.1	D	Cal.Plan - Ground Floor Deep Soil	Baini Design	07/06/2024
20.2	D	Cal.Plan - Ground Floor Landscaping	Baini Design	07/06/2024
20.3	D	Cal.Plan - Ground Floor Outdoor Plan	Baini Design	07/06/2024
21	D	First Floor FSR	Baini Design	07/06/2024
21.1	D	Calc.Plan - First Floor Landscaping	Baini Design	07/06/2024
21.2	D	Calc.Plan - First Floor Outdoor Play	Baini Design	07/06/2024
22	D	Calc.Plan 0-2 Indoor Play Area	Baini Design	07/06/2024
23	D	Calc.Plan 2-3 Indoor Play Area	Baini Design	07/06/2024
24	D	Calc.Plan 3-5 Indoor Play Area	Baini Design	07/06/2024
25	D	Shading Diagrams – Ground Floor	Baini Design	07/06/2024
26	D	Shading Diagrams – First Floor	Baini Design	07/06/2024
26.1	D	Solar Study	Baini Design	07/06/2024
27	D	Fencing Details – Ground Floor	Baini Design	07/06/2024
28	D	Fencing Details – First Floor	Baini Design	07/06/2024
28-1	D	Fencing Details	Baini Design	07/06/2024
29	D	3D Perspective	Baini Design	07/06/2024
30	D	Streetscape Elevation	Baini Design	07/06/2024
31	D	Access Detail-Basement	Baini Design	07/06/2024
32	D	Access Detail – Ground Floor	Baini Design	07/06/2024
33	D	Access Detail – First Floor	Baini Design	07/06/2024
34	D	10AM Overshadowing Diagram	Baini Design	07/06/2024
35	D	11AM Overshadowing Diagram	Baini Design	07/06/2024
36	D	12PM Overshadowing Diagram	Baini Design	07/06/2024
37	D	1PM Overshadowing Diagram	Baini Design	07/06/2024
Landscape Plans
1	B	Landscape Plan 1	Iscape Landscape Architecture	30/04/2024
2	B	Landscape Plan 2	Iscape Landscape Architecture	30/04/2024
Stormwater Plans
000	D	Cover Sheet Plan	Telford Civil Design & Construction Excellence	24/04/2024
101	D	Stormwater Concept Plan Basement Level Sheet 1 of 2	Telford Civil Design & Construction Excellence	24/04/2024
102	D	Stormwater Concept Plan Basement Level Sheet 2 of 2	Telford Civil Design & Construction Excellence	24/04/2024
103	D	Stormwater Concept Plan	Telford Civil Design & Construction Excellence	24/04/2024
104	D	WSUD Catchment Plan, Music Model & Results	Telford Civil Design & Construction Excellence	24/04/2024
105	D	WSUD Tank Detention Details and Calculation Sheets	Telford Civil Design & Construction Excellence	24/04/2024
106	D	On-site Detention Details and Calculation Sheets	Telford Civil Design & Construction Excellence	24/04/2024
107	D	Storage Tank Details and Calculation Sheets	Telford Civil Design & Construction Excellence	24/04/2024
108	D	Sediment & Erosion Control Plan	Telford Civil Design & Construction Excellence	24/04/2024
109	D	Miscellaneous Details Sheet	Telford Civil Design & Construction Excellence	24/04/2024
Supplementary / Additional Reports
Statement of Environmental Effects	Think Planners	21/12/2022
1	Preliminary Environmental Site Investigation	Environmental Consulting Services	23/01/2023
22-198-2	Updated Parking & Traffic Impact Assessment	Stanbury Traffic Planning	15/04/2024
7675-1.1R	C	Environmental Noise Impact Assessment	Day Design Pty Ltd	17/05/2024
Plan of Management	Think Planners	17/05/2024
Stormwater & OSD Documentation DA Checklist	24/04/2024

2. That Tree 3 is identified in the Arboricultural Impact Assessment and Tree Management Plan dated 14 December 2022 prepared by Horticultural Management Services in support of the DA.

29. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the sum agreed or assessed, such amount to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. Development Application No. 70/2023 for the demolition of existing structures and the removal of Tree 3, and construction of a two-storey Centre Based Child Care Facility for 72 children and parking for 18 vehicles in a basement level, at Lot 18 DP9899 also known as 57 Ballandella Road, Toongabbie NSW 2146, is approved subject to the conditions included in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 17 September 2024