Kakakios v Hunters Hill Council

[2023] NSWLEC 1775

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kakakios v Hunters Hill Council [2023] NSWLEC 1775

Hearing dates:

Conciliation conference on 14 December 2023

Date of orders:

20 December 2023

Decision date:

20 December 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, and as agreed, the applicants are to pay the respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $20,000, within 28 days of the date of these orders.

(2) The appeal is upheld.

(3) Development Application No. DA20220203, as amended, for the construction of a centre-based child care facility with a capacity of 39 children, including basement car parking for seven (7) vehicles at 26 Farnell Street, Hunters Hill is determined by the grant of consent subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Education and Care Services National Regulations, regs 107, 108

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15(3)

Environmental Planning and Assessment Regulation 2021, s 38(1)

Hunters Hill Local Environmental Plan 2012, cll 2.3, 2.7, 6.1, 6.2, 6.3

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 10; s 10.10

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, 3.25

Texts Cited:

Department of Urban Affairs and Planning and Environment Protection Authority, Managing Land Contamination Planning Guidelines SEPP 55—Remediation of Land (1998)

Hunters Hill Development Control Plan 2013

Category:

Principal judgment

Parties:

Con Kakakios (First Applicant)
Mary Kakakios (Second Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
M Staunton (Applicants)
P Brown (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/382176

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought by the applicants under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA20220203 (DA) by Hunters Hill Council (Council). The DA seeks consent for a centre-based child care facility with a capacity for 39 children and associated development at 26 Farnell Street, Hunters Hill, legally described as Lot A DP 391750 (site).

2. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on 14 December 2023, after the parties indicated they had come to an agreement in relation to the terms of a decision in the proceedings that would be acceptable to the parties. I presided over the conciliation conference.

3. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, as amended, and subject to agreed conditions. 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.

4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties outlined matters of relevance through a jurisdictional statement provided to the Court on 14 December 2023, explaining how they believed the jurisdictional matters have or could be satisfied. Below, I attend to jurisdictional considerations mindful of this advice from the parties.

Jurisdiction

State Environmental Planning Policy (Resilience and Hazards) 2021

5. Section 4.6 requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed. I accept the advice of the parties that given the existing residential buildings on site and no evidence of activities nominated at Table 1 in Managing Land Contamination Planning Guidelines - SEPP 55–Remediation of Land (1998), there is no reason to suspect the site is contaminated. The requirements of s 4.6 are met. No further investigation of the site is warranted on that front.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

6. The parties advise that now repealed Ch 10 (Sydney Harbour Catchment) continues to apply by virtue of savings and transitional provisions. The parties advise me that the site is identified as being located within the Sydney Harbour Catchment, and as such, is subject to assessment under s 10.10. The parties’ jurisdictional statement indicates how the relevant matters have been taken into consideration by the parties.

7. Chapter 2, in regard to vegetation in non-rural areas, also applies. The parties have explained the vegetation removal and vegetation provisioning strategies in the jurisdictional statement which is seen to be reasonable in the circumstances. Nothing turns in a jurisdictional sense on this.

State Environmental Planning Policy (Transport and Infrastructure) 2021

8. Chapter 3 deals with child care facilities. In relation to s 3.22, I accept the advice of the parties that the DA, as amended, complies with reg 107 (indoor unencumbered space requirements) and reg 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations. That is to say, at least 3.25m² of indoor space per child, and at least 7m² outdoor space would be provided per child. Therefore, the Parties agree that no concurrence is required.

9. The parties advise in the jurisdictional statement how the provisions of s 3.23 have been addressed (ie in regard to the nominated matters for consideration for centre-based child care facilities). It also indicates that the proposal would meet floor space ratio development standards under s 3.25.

Hunters Hill Local Environmental Plan 2012

10. The site is zoned R2 Low Density Residential and the proposed development is permissible with consent under that zone. I have had regard to the zone objectives as required under cl 2.3(2). The application proposes demolition works and this is permissible with consent under cl 2.7.

11. I accept the advice of the parties that the proposal does not breach any development standards contained within Hunters Hill Local Environmental Plan 2012.

12. The parties’ jurisdictional statement indicates how there has been consideration of relevant matters including in regard to cl 6.1 (in relation to acid sulfate soils) and cl 6.2 (in relation to earthworks).

13. The provisions at cl 6.3 (in relation to stormwater management) are jurisdictional. I can confirm that I accept the parties’ position and am satisfied that:

1. the development is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water – this is because of the scale of the rear outdoor play area comprising a water permeable surface.

2. the development includes, as practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water – this is because the stormwater management design includes the provision of onsite retention of water for reuse (a 22.5m² water tank is proposed within the driveway of the proposal).

3. the development avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact – this is because of the acceptability of the stormwater management plans proposed with the DA, which would collect, manage and dispose of stormwater into Council’s stormwater management system. The parties advise and I accept that the approved scheme would avoid impacts on adjoining land.

Other matters for consideration under section 4.15(1) of the EPA Act

14. Hunters Hill Development Control Plan 2013 applies. While no jurisdictional matters arise, the parties advise that relevant provisions have been considered.

15. The parties advise the proposal was notified in accordance with requirements. Objecting submissions were provided to me by Council for review (Council’s bundle of documents filed 8 December 2023). I also heard directly from a number of the objectors during the site inspection. The parties advised that a number of objections raised have been addressed in proposal amendments and proposed conditions of consent. The requirement at s 4.15(1)(d) of the EPA Act is that in determining a development application a consent authority is to “take into consideration” objecting submissions. This has been undertaken.

Conclusion

16. Based on the above details, I am satisfied that there is no jurisdictional bar and the parties’ decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

17. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

18. The Court notes the advice of the parties that:

1. Hunters Hill Council, as the relevant consent authority, has approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, the further amendment of Development Application No. DA20220203, comprising the following amended plans and documents:

1. Stormwater Engineering Plans prepared by Development Engineering Solutions:

1. Drawing No. CO1, Roof & First Floor Drainage, issue A dated 5 July 2022;

2. Drawing No. CO2, Issue B Ground Floor Drainage & Section, Issue B dated 29 September 2023; and

3. Drawing No. C03, Basement Drainage & Sections, Issue B, dated 27 September 2023.

2. Updated Building Code of Australia Report prepared by Jensen Hughes dated 1 December 2023; and

3. Fire Engineering Technical Note prepared by Jensen Hughes dated 4 December 2023

2. The applicants filed the Amended Development Application with the Court on 13 December 2023.

Orders

19. The Court orders:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, and as agreed, the applicants are to pay the respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $20,000, within 28 days of the date of these orders.

2. The appeal is upheld.

3. Development Application No. DA20220203, as amended, for the construction of a centre-based child care facility with a capacity of 39 children, including basement car parking for seven (7) vehicles at 26 Farnell Street, Hunters Hill is determined by the grant of consent subject to the conditions of consent in Annexure A.

Peter Walsh

Commissioner of the Court

Annexure A as amended 03 January 2024 (895199, pdf)

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Amendments

03 January 2024 - By consent and pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule): (1) amended version of the conditions of consent provided at Annexure A and referenced as “Annexure A (as amended 03 January 2024)” accommodating the inclusion of a Plan of Management (referenced at Condition 87) as an attachment to the conditions, and (2) correction of local environmental plan references at Legislation Cited section on the cover page and at [11].

Decision last updated: 03 January 2024