JS Architects Pty Ltd v Blacktown City Council

[2023] NSWLEC 1473

Land and Environment Court

New South Wales

Medium Neutral Citation:

JS Architects Pty Ltd v Blacktown City Council [2023] NSWLEC 1473

Hearing dates:

Conciliation conference on 16 March 2023

Date of orders:

22 August 2023

Decision date:

22 August 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders:

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

(2) The appeal is upheld.

(3) Development consent is granted to Development Application DA-22-01027, as amended, for the demolition of existing structures, tree removal, and construction of a childcare centre for 109 children and 24 staff, with basement carparking, associated earthworks, retaining walls, stormwater and landscaping works.

Catchwords:

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

Legislation Cited:

Blacktown Local Environmental Plan 2015, cll 4.1, 4.3,

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, s 37

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021

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

Texts Cited:

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

Category:

Principal judgment

Parties:

JS Architects Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
V Conomos (solicitor) (Applicant)
L Raffaele (solicitor)(Respondent)

Solicitors:
Conomos Legal (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2022/301560

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of Blacktown City Council’s deemed refusal of Development Application DA-22-01027 (the DA) seeking consent for demolition of existing structures, tree removal and construction of a centre-based child care facility, ground level and basement car parking, with associated earthworks, retaining walls, stormwater and landscaping works at 13 – 21 Lyton Street, Blacktown, legally known as, Lots 1 - 5 DP 31018 (the Site). These proceedings have been brought pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 March 2023. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached an in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the Development Application.

4. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted several further adjournments so that those amendments agreed to between the parties could be incorporated into agreed conditions of consent.

5. This agreement between the parties involves the Court upholding the appeal and granting development consent to the DA subject to those agreed conditions of consent.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 26 July 2023.

7. The parties ask me to approve their decision as 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.

8. 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 they have been satisfied. From this I note the following:

1. Owner’s consent was provided with the Class 1 application.

2. The Development Application was notified and advertised from 19 October 2022 to 2 November 2022, and no submissions were received.

3. The Development Application, as amended, before the Court, seeks development consent for a centre based childcare centre. The parties submit and I agree that proposed development is permissible in the R2 – Low Density Residential zone under the Blacktown Local Environmental Plan 2015 (BLEP).

4. Clause 4.1 specifies a minimum lot size of 450m². The parties submit and I accept that the proposed development complies with this requirement.

5. Clause 4.3 of the BLEP prescribes a height of building development standard of 9m. The parties submit and I agree that the proposed development does not exceed the height limit.

6. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the Site. Chapter 3 - Educational establishments and child care facilities of the SEPP applies to the proposed development. Section 3.23 of the SEPP requires a consent authority to consider the Department of Planning, Industry and Environment, Childcare Planning Guideline, October 2021 (Childcare Planning Guideline) when determining a development application. The parties submit and I am satisfied that the matters for consideration under the Childcare Planning Guideline have been addressed in the Statement of Environmental Effects (SEE) and the proposal complies with the non-discretionary standards for centre-based childcare facilities at s 3.26 of the Transport and Infrastructure SEPP. I am also satisfied that the proposal complies with the relevant matters under the Child Care Planning Guidelines and the Education and Care Services National Regulations 2011.

7. The Development Application was accompanied by a Preliminary Site Investigation report prepared by Geotesta and dated 15 July 2022. Based on the Preliminary Site Investigation and the parties’ submission, I am satisfied that the Site is suitable for the proposed use pursuant to the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021.

9. For the above reasons 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 am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notes

10. The Court notes that:

1. Blacktown City Council, the Respondent, as the relevant consent authority has agreed, under clause 37(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA-22-01027:

1. The following amended architectural plans prepared by JS Architects:

Drawing No.	Drawing Title	Date
A000, issue H	Cover Page	6 July 2023
A001, issue H	Site Plan	6 July 2023
A002, issue H	Site Analysis	6 July 2023
A003, issue H	Demolition Plan	6 July 2023
A100, issue H	Basement Plan	6 July 2023
A101, issue H	Ground Floor Plan	6 July 2023
A102, issue H	First Floor Plan	6 July 2023
A103, issue H	Roof Plan	6 July 2023
A200, issue H	Elevations 01	6 July 2023
A201, issue H	Elevations 02	6 July 2023
A202, issue H	Sections 01	6 July 2023
A203, issue H	Sections 02	6 July 2023
A204, issue H	Sections 03	6 July 2023
A205, issue H	Door & Window Schedule	6 July 2023
A300, issue H	Detail Section	6 July 2023
A301, issue H	Detail Section	6 July 2023
A302, issue H	Detail Section	6 July 2023
A303, issue H	Detail Section	6 July 2023
A400, issue H	Materials & Finishes	6 July 2023
A401, issue H	8m Height Limit Diagram	6 July 2023
A402, issue H	Floor Area Diagrams	6 July 2023
A403, issue H	Unencumbered Floor Area Calculation	6 July 2023
A501, issue H	Waste Room	6 July 2023
A504, issue H	Cut & Fill Diagram	6 July 2023
A505, issue H	Site Coverage Diagram	6 July 2023
A506, issue H	Shadow Diagram 01	6 July 2023
A507, issue H	Shadow Diagram 02	6 July 2023
A508, issue H	Shadow Diagram 03	6 July 2023
A509, issue H	Shadow Diagram 04	6 July 2023
A510, issue H	Shadow Diagram 05	6 July 2023
A511, issue H	Shadow Diagram 06	6 July 2023
A512, issue H	Shadow Diagram 07	6 July 2023

2. The Following updated landscape plans prepared by NADDI Designs Pty Ltd:

Drawing No.	Drawing Title	Date
LA00, Rev E	Cover Sheet	11 May 2023
LA01, Rev E	Materials and Finishes Plan	11 May 2023
LA02, Rev E	Landscape Planting Plan	11 May 2023
LA03, Rev E	Planting Schedule	11 May 2023
LA04, Rev E	Areas of Irrigation Plan	11 May 2023
LA05, Rev E	Landscape Details – Sheet 1	11 May 2023
LA06, Rev E	Landscape Details – Sheet 2	11 May 2023
LA07, Rev E	Landscape Maintenance & Specification Notes	11 May 2023

3. The following stormwater Plans prepared by MBR Consulting Engineers Pty Ltd:

Drawing No.	Drawing Title	Date
MBR22101-000, Rev F	Cover Sheet, Note & Drawing Index	22 May 2023
MBR22101-101, Rev F	Stormwater Concept Plan – Basement	22 May 2023
MBR22101-102, Rev F	Stormwater Concept Plan – Roof	22 May 2023
MBR22101-103, Rev F	Stormwater Concept Plan – Level 1	22 May 2023
MBR22101-104, Rev F	Stormwater Concept Plan – Ground – Sheet 1 of 2	22 May 2023
MBR22101-105, Rev F	Stormwater Concept Plan – Ground – Sheet 2 of 2	22 May 2023
MBR22101-106, Rev F	OSD & RWT Details & Calculation Sheet 1 of 3	22 May 2023
MBR22101-107, Rev F	OSD & RWT Details & Calculation Sheet 2 of 3	22 May 2023
MBR22101-108, Rev F	OSD & RWT Details & Calculation Sheet 3 of 3	22 May 2023
MBR22101-109, Rev F	Pump-out Tank Details & Calculation Sheet	22 May 2023
MBR22101-110, Rev F	Miscellaneous Details Sheet	22 May 2023

4. Acoustic Report prepared by Acousticworks dated 2 May 2023.

5. Operational Plan of Management for Childcare Centre dated July 2023.

6. Emergency Management Plan prepared by FS Group Pty Ltd undated.

Conclusion

11. 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.

12. 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.

Orders

13. The Court orders:

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

2. The appeal is upheld.

3. Development consent is granted to Development Application DA-22-01027, as amended, for the demolition of existing structures, tree removal, and construction of a childcare centre for 109 children and 24 staff, with basement carparking, associated earthworks, retaining walls, stormwater and landscaping works.

L Sheridan

Acting Commissioner of the Court

annexure A

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