Karai v Cumberland Council

[2024] NSWLEC 1145

Land and Environment Court

New South Wales

Medium Neutral Citation:

Karai v Cumberland Council [2024] NSWLEC 1145

Hearing dates:

Conciliation conference on 31 January 2024

Date of orders:

27 March 2024

Decision date:

27 March 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The applicant’s written request under clause 4.6 of the Cumberland Local Environmental Plan 2021, seeking a variation of the development standard for floor space ratio set out in section 3.25(1) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 is upheld.

(2) The appeal is upheld. 

(3) Development Application DA2022/0789 (as amended) for the demolition of the existing dwelling and associated structures and construction of a two-storey centre-based childcare facility for 124 children over basement carpark including associated site works at 33 Hawkesbury Road Westmead NSW 2145 (Lot 1 DP 8359 and Lot 2 in DP 8359) is determined by the grant of development consent, subject to the conditions set out in Annexure B.

(4) The applicant is to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in sum of $1,500 to be paid within 28 days of orders being made finalising the proceedings.

Catchwords:

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

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 39

Cumberland Local Environmental Plan 2021, cll 2.7, 4.6, 6.4, 6.7, 6.9

Education and Care Services National Regulations, regs 107, 108

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 (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.25

Category:

Principal judgment

Parties:

Friya Karai (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)

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

File Number(s):

2023/240649

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings, brought by the applicant 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 refusal of development application DA2022/0789 (DA) by Cumberland Council (Council). The DA seeks consent for the demolition of the existing dwelling and associated structures and construction of a centre-based childcare facility and associated works at 33 Hawkesbury Road Westmead (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 31 January 2024. I presided over the conciliation conference. After more time was given, the parties came to an agreement in relation to the proceedings, involving certain amendments to the original application filed with the Court.

3. Were it to be taken up, the parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA, 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 note provided to the Court on 8 March 2024 and with an update provided on 13 March 2024, explaining how they believed matters requiring a positive finding on the part of the Court have, or could be, satisfied. Below, I attend to required considerations mindful of this advice from the parties.

Jurisdiction

State Environmental Planning Policy (Transport and Infrastructure) 2021

5. 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. Therefore, the parties agree, and I accept, that no concurrence is required.

6. There is a contravention of the floor space ratio (FSR) development standard at s 3.25(1). This is attended to below.

State Environmental Planning Policy (Resilience and Hazards) 2021

7. Section 4.6 requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is, or can be made, suitable for the purpose proposed. The parties have advised of a 'Remedial Action Plan' prepared by Development Risk Management, dated 14 December 2022 and that appropriate conditions have been included to ensure the site will be suitable, after remediation, for the purpose for which the development is proposed to be carried out. I accept this advice.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

8. The parties advise that Ch 6 applies as the site falls within the “Sydney Harbour Catchment”. There are a series of matters warranting consideration in relation to water quality and quantity, under s 6.6(1). Then s 6.6(2) lists matters with which a consent authority needs to be satisfied with respect to this topic. In turn, s 6.7(1) lists matters warranting consideration in relation to aquatic ecology with s 6.7(2) listing matters with which a consent authority needs to be satisfied again with respect to this topic. Finally, of relevance, s 6.9(1) lists matters warranting consideration in relation to recreation and public access with s 6.9(2) listing matters with which a consent authority needs to be satisfied again with respect to this topic. In their jurisdictional note the parties have indicated that consideration has been given to the nominated matters listed above, and have given reasons why the Court could be satisfied in relation to those matters requiring such a finding. I accept the position argued by the parties in the jurisdictional note and find that I am satisfied with each of the matters at ss 6.6(2), 6.7(2) and 6.9(2).

Cumberland Local Environmental Plan 2021

9. The site is zoned R2 Low Density Residential and the proposed development is permissible with consent under that zone. The application proposes demolition works and this is permissible with consent under cl 2.7.

10. I accept the advice of the parties that the proposed development would not breach any development standards contained within Cumberland Local Environmental Plan 2021 (CLEP).

11. The provisions at cl 6.4 related to essential services. I accept the advice of the parties that all relevant services are available in this established urban area.

12. In relation to cl 6.7(2) and stormwater management, I accept the advice of the parties that the proposed development has been designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water and that it avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters. The parties also advise that it is not practicable to include on-site stormwater retention for use as an alternative water supply. The parties referred me to landscape architectural drawings and the stormwater management plan for the proposal to support the position that they have adopted. The requirements of cl 6.7(2) are met.

13. Clause 6.9 applies as the site is identified on CLEP’s Salinity Map. In this instance, Council’s Statement of Facts and Contentions, filed with the Court on 22 August 2023 (paragraph 40), indicates that Council is satisfied with respect to the provisions at cl 6.9(4). In the jurisdictional note, the parties indicate reaffirmation of this position. On this basis I too and am satisfied with respect to the matters listed at cl 6.9(4).

Clause 4.6 – Exceptions to development standards

14. The applicant relies on a written request under cl 4.6 of CLEP to seek the grant of consent despite contravention of the FSR development standard as applicable under s 3.25(1) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure). The written request was included behind Tab 11 to the bundle of documents provided to the Court on 7 March 2024. I accept the advice of the parties that cl 4.6 as existing at the time of the making of the application is relevant.

15. The parties advise of their agreed position that the written request satisfies the requirements of cl 4.6(3). I agree with this position. The written request satisfies me that compliance with the development standard is unreasonable or unnecessary, in the circumstances, because the objectives of the development standard are achieved notwithstanding the contravention of this standard. This is achieved through the written request’s contextual analysis and the demonstration of compatibility of the proposal. I am also satisfied that the written request has demonstrated that there are sufficient environmental planning grounds to justify the contravention of the FSR standard. This is essentially again through its contextual analysis and its indication of the urban design attributes of the proposal which respond effectively to context. This means the requirements of cl 4.6(4)(a)(i) are satisfied.

16. I am also satisfied that the development is in the public interest, with respect to cl 4.6(4)(a)(ii). I adopt the reasoning provided in the written request in regard to consistency with the objectives behind the relevant FSR standard. I am also satisfied that the development is consistent with the applicable R2 zone objectives. This is because the proposed development will: (1) help meet day to day needs of residents as a consequence of its provision of child care services, and (2) minimise impacts on the amenity of a low-density residential environment as a consequence contextually responsive design. With the above findings, the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

Conclusion in regard to development standard contravention

17. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act, but should still consider the matters in cl 4.6(5). I have considered these matters and find nothing of significance arises.

18. In accordance with the above findings, the conditions which are required to be satisfied before the permissive power in cl 4.6(2) is enlivened have been met. Consequently, there is power for the Court to grant consent to the proposal notwithstanding the contravention of the FSR standard at s 3.25(1) of SEPP Infrastructure.

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

19. Council’s Statement of Facts and Contention advised of the notification of the proposal and that one objection was received. In this instance, I also had the opportunity to hear from an objector during a site inspection with the parties. The parties advise that due consideration has been given to objecting submissions. The requirements of s 4.15(1)(d) of the EPA Act have been met.

Conclusion

20. 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.

21. 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

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

1. The respondent, as the relevant consent authority has agreed, under s 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending development application DA2022/0789 to rely on the plans and documents listed in the schedule at Annexure A.

2. The applicant has filed the amended plans and documents listed in Annexure A with the Court.

Orders

23. The Court orders that:

1. The applicant’s written request under clause 4.6 of the Cumberland Local Environmental Plan 2021, seeking a variation of the development standard for floor space ratio set out in section 3.25(1) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 is upheld.

2. The appeal is upheld. 

3. Development Application DA2022/0789 (as amended) for the demolition of the existing dwelling and associated structures and construction of a two-storey centre-based childcare facility for 124 children over basement carpark including associated site works at 33 Hawkesbury Road Westmead NSW 2145 (Lot 1 DP 8359 and Lot 2 in DP 8359) is determined by the grant of development consent, subject to the conditions set out in Annexure B.

4. The applicant is to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in sum of $1,500 to be paid within 28 days of orders being made finalising the proceedings.

Peter Walsh

Commissioner of the Court

240649.23 Annexure A

240649.23 Annexure B

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Decision last updated: 27 March 2024