Kaya v The Hills Shire Council

[2024] NSWLEC 1552

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kaya v The Hills Shire Council [2024] NSWLEC 1552

Hearing dates:

Conciliation conferences on 27 February, 11 April and 19 June 2024

Date of orders:

10 September 2024

Decision date:

10 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 agreed amount of $9,000, such amount to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development Application No 1587/2023/HA, for the demolition of existing structures and identified trees and construction of a 2-storey centre based child care facility for 78 children with car parking over basement level on land legally described as Lot 30 in Deposited Plan 1219827 and known as 123 Arnold Avenue, Kellyville, NSW, 2155, is determined by the grant of development consent, 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 4.15, 4.16, 4.17, 4.46, 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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Pt 6.2

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 2.48, 3.23, 3.25, 3.26

The Hills Local Environmental Plan 2019, cll 2.2, 2.3, 2.7, 4.3, 4.4, 7.2,

Texts Cited:

The Hills Development Control Plan 2012

The Hills Community Participation Plan 2024

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

Category:

Principal judgment

Parties:

Zafer Kaya (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/229119

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No 1587/2023/HA (the DA) for the demolition of all existing structures and to construct a 2-storey, 90 place ‘Centre-Based Child Care Facility’ with a total of 22 car parking spaces within a basement level parking area comprising of 12 staff parking spaces and 10 visitor parking spaces (including 1 accessible parking space) at Lot 30 in Deposited Plan 1219827, also known as 123 Arnold Avenue, Kellyville, NSW, 2155 (the site).

2. The proposal as lodged and advertised provided for a 2-storey centre-based child care facility for 90 children and a basement car parking level, accessed from Arnold Avenue.

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 27 February 2024. I presided over the conciliation conference, which began with an on-site view. One objector attended the on-site view and made a verbal submission to the Court.

4. The s 34 conciliation conference was adjourned to 11 April 2024 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. The s 34 conciliation conference was further adjourned a number of times to enable the parties to come to an agreement over the proposed development, including renotification of the amended plans.

5. At the conciliation conference on 19 June 2024 the parties indicated that they had generally 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 25 June 2024, with amended plans (the amended DA) as agreed between the parties filed with the Court on 8 July 2024. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

7. The changes made to the DA include:

1. Reduction in the number of children from 90 to 78;

2. Amendments to the proposed built form;

3. Increase to a 3 metre setback to the rear boundary of the site;

4. Provision of a noise management plan; and

5. Provision of an amended 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 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 exhibited between 28 April and 19 May 2023 in accordance with the requirements of The Hills Community Participation Plan 2024. Ten submissions were received in response to the notification of the DA.

13. The parties advise that having regard to amendments proposed in the amended DA, there was a renotification of the proposed development in accordance with The Hills Community Participation Plan 2024 between 15 April and 30 April 2024. Four submissions (two from the same property) were received in response to the notification of the amended DA.

14. The parties submit that the issues raised by objectors in the two notification periods have been adequately addressed in the amended DA and the agreed Conditions of Consent.

Integrated Development

15. The parties advise that the DA is not integrated development as defined under s 4.46 of the EPA Act.

Referral Agencies

16. The parties advise that the DA was referred to Endeavour Energy pursuant to s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) (refer to [23] below). The referral was made as the site is located within 5 metres of an exposed overhead electricity power line. Section 2.48(2) of the Transport and Infrastructure SEPP requires that, before granting consent, a consent authority must give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and take into consideration any response to the notice that is received. Endeavour Energy raised no objections to the DA subject to Endeavour Energy requirements.

Conditions

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

The Hills Local Environmental Plan 2019

18. The Hills Local Environmental Plan 2019 (the LEP) is the relevant local environmental planning instrument that applies to the site. 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 10 metres; and

1. The height of the proposed development is less than 10 metres, and thus complies with cl 4.3.

4. There is no applicable maximum floor space ratio (FSR) for the site under the LEP pursuant to cl 4.4 of the LEP. However, under s 3.25 of the Transport and Infrastructure SEPP 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 (Refer to [24] below]. The parties advise that the proposed development has a FSR of 0.45:1, thus complying with s 3.25 of the Transport and Infrastructure SEPP.

5. Clause 7.2 of the LEP relates to earthworks. The extent of the earthworks proposed by the development relates to the excavation for the basement level. The parties advise that the Court can be satisfied that the matters arising under cl 7.2(3) have been considered; and

1. The proposed development will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability in the area;

2. The proposed excavation is consistent with the site’s context and is in accordance with Council’s current and proposed planning strategies;

3. The destination of any excavated material is to be in accordance with the Conditions of Consent;

4. It is considered unlikely that excavation will lead to the disturbance of relics as the site is not known to be situated within an area of archaeological significance; and

5. The earthworks are unlikely to impact on any watercourse, drinking water catchment or environmentally sensitive areas due to the location of the site.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. The amended DA proposes removal of trees to facilitate the proposed development. The parties advise that the matters arising under Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (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 trees under permit, but rather seeks development consent to remove the trees under EPA Act.

20. Chapter 6 of the Biodiversity SEPP applies to the proposed development as the site is located within the Hawkesbury-Nepean Catchment. The Biodiversity SEPP seeks to manage and promote integrated catchment management policies. The parties advise that the relevant matters in Pt 6.2 of the Biodiversity SEPP have been considered in the following materials accompanying the amended DA, and that the Court can be satisfied that the impact on waterflow and water quality on the catchment is acceptable:

1. Stormwater Management Plan prepared by Capital Engineering Consultants dated 14 May 2024;

2. Letter on water sensitive urban design matters prepared by Capital Engineering Consultants dated 26 September 2023;

3. Arboricultural Impact Assessment prepared by Hugh The Arborist dated 21 February 2024;

4. Preliminary Site Investigation prepared by Geotechnical Consultants Australia dated 7 February 2023; and

5. Waste Management Plan dated 30 March 2023.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. 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. The site has a historical residential use with no known prior land uses and is located within an established residential locality. Based on historical records, there is no suggestion that the site would have been contaminated. There are no immediate site conditions which would require remediation of the site.

2. The Preliminary Site Investigation prepared by Geotechnical Consultants Australia dated 7 February 2023 confirms that the potential for significant contamination of onsite soil is low and the site is suitable for the proposed development, subject to recommendations.

3. The recommendation for a hazardous materials survey and unexpected finds protocol to be prepared have been included in the Conditions of Consent.

22. 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

23. The parties advise that the DA was referred to Endeavour Energy pursuant to s 2.48 of the Transport and Infrastructure SEPP. The site is located within 5 metres of an exposed overhead electricity power line. Endeavour Energy raised no objections to the DA subject to Endeavour Energy requirements.

24. Chapter 3 of 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 3.25 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 amended DA has a FSR of 0.45:1, thus complying with this requirement;

2. Section 3.26 of the Transport and Infrastructure SEPP in particular contains non-discretionary development standards for centre based child care centres; and

3. The parties submit that the amended DA complies with Ch 3, ss 3.25 and 3.26 of the Transport and Infrastructure SEPP.

Education and Care Service National Regulations 2011

25. 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

26. 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.

The Hills Shire Development Control Plan 2012

27. The Hills Shire Development Control Plan 2012 (the DCP) applies to the site; and

1. The parties advise that the amended DA can be approved taking into consideration the matters in ss 4.15(1)(b) – (e) of the EPA Act.

Conclusion

28. Having considered the advice of the parties provided above at [11]-[27], 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.

29. 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.

30. 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.

31. The Court notes:

1. That Hills Shire Council, as the 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 1587/2023/HA made on 25 June 2024 to rely on the documents and plans specified below (the amended development application):

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No. A000 Issue C	Cover Page	Janssen Designs	13 March 2024
	Drawing No. A001 Issue C	Calculations & LEP Controls		13 March 2024
	Drawing No. A002 Issue C	Site Context Plan		13 March 2024
	Drawing No. A003 Issue C	Demolition Plan		13 March 2024
	Drawing No. A004 Issue C	Site Analysis Plan		13 March 2024
	Drawing No. A004B Issue C	Site Plan		13 March 2024
	Drawing No. A005 Issue C	Basement Plan		13 March 2024
	Drawing No. A006 Issue E	Ground Floor Plan		6 May 2024
	Drawing No. A007 Issue E	First Floor Plan		6 May 2024
	Drawing No. A008 Issue C	Roof Plan		13 March 2024
	Drawing No. A009 Issue D	North (Streetscape) & West Elevation		6 May 2024
	Drawing No. A010 Issue C	South & East Elevation		13 March 2024
	Drawing No. A011 Issue C	Sections		13 March 2024
	Drawing No. A012 Issue C	Shadow Diagram 9am June 21st		13 March 2024
	Drawing No. A013 Issue C	Shadow Diagram 12noon June 21st		13 March 2024
	Drawing No. A014 Issue C	Shadow Diagram 3pm June 21st		13 March 2024
	Drawing No. A015 Issue C	Solar Access Diagram 9am June 21st		13 March 2024
	Drawing No. A016 Issue C	Solar Access Diagram 10am June 21st		13 March 2024
	Drawing No. A017 Issue C	Solar Access Diagram 11am June 21st		13 March 2024
	Drawing No. A018 Issue C	Solar Access Diagram 12noon June 21st		13 March 2024
	Drawing No. A019 Issue C	Emergency Evacuation Plan - Ground Floor Plan		13 March 2024
	Drawing No. A020 Issue C	Emergency Evacuation Plan - First Floor Plan		13 March 2024
	Drawing No. A021 Issue D	Cut and Fill Diagram		6 May 2024
	Drawing No. A022 Issue C	Kitchen Detail Plan		13 March 2024
	Drawing No. OPA001 Issue D	Outdoor Play Area Diagram - Ground Floor Plan		13 March 2024
	Drawing No. OPA002 Issue D	Outdoor Play Area Diagram - First Floor Plan		13 March 2024
Landscape Plans
2	Drawing No. 01 Issue E	Ground Floor Landscape Concept	Outside In Design Group	16 May 2024
	Drawing No. L-02 Issue E	First Floor Landscape Concept		16 May 2024
Stormwater Plans
3	Drawing No. SW001 Revision E	Stormwater Layout Plan Cover Sheet	Capital Engineering Consultants	14 May 2024
	Drawing No. SW002 Revision E	Stormwater Layout Plan Typical Drainage Notes & Details		14 May 2024
	Drawing No. SW010 Revision E	Stormwater Layout Plan Basement Plan, Notes & Details		14 May 2024
	Drawing No. SW020 Revision E	Stormwater Layout Plan Ground Floor Plan, Notes & Details		14 May 2024
Survey
4	Reference No. 22338-22 DET ID Revision V2	Detail & Boundary Identification Survey of Lot 30 in DP 1219827, Located at No.123 Arnold Avenue, Kellyville	C&A Surveyors	11 May 2024
Reports / documents
5	Arboricultural Impact Assessment		Hugh The Arborist	21 February 2024
6	Letter regarding Stormwater Management Plan		Capital Engineering Consultants	28 September 2023
7	Environmental Noise Impact Assessment		Day Design Pty Ltd	11 April 2024
8	Letter regarding Outdoor Open Space		Think Planners	21 May 2024
9	Operational Plan of Management		Janssen Designs	23 April 2024
10	Traffic and Parking Impact Assessment		McLaren Traffic Engineering & Road Safety Consultants	21 March 2024
11	Registered Quantity Surveyor’s Detailed Cost Report		MY QS Property Consultants	5 June 2024

32. 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 agreed amount of $9,000, such amount to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. Development Application No 1587/2023/HA, for the demolition of existing structures and identified trees and construction of a 2-storey centre based child care facility for 78 children with car parking over basement level on land legally described as Lot 30 in Deposited Plan 1219827 and known as 123 Arnold Avenue, Kellyville, NSW, 2155, is determined by the grant of development consent, subject to the conditions included in Annexure A.

G Kullen

Acting Commissioner of the Court

2023.229119 Annexure A

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Decision last updated: 10 September 2024