Kazcorp Holdings (Canterbury) Pty Ltd v Canterbury-Bankstown Council

[2023] NSWLEC 1057

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kazcorp Holdings (Canterbury) Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1057

Hearing dates:

Conciliation Conference 3 and 6 February 2023

Date of orders:

10 February 2023

Decision date:

10 February 2023

Jurisdiction:

Class 1

Before:

Espinosa C

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 (NSW) (the Act).

                     (2)      The appeal is upheld.

(3)      Development consent is granted to development consent DA-970/2021 for the construction of new lightweight roof over existing outdoor play area of an approved child care centre on the ground floor at No. G0 1 / 364 Canterbury Road, Canterbury NSW 2193 subject to the conditions of consent contained at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – child care centre – construction of new acoustic roof structure over outdoor play area - conciliation conference – agreement between the parties - orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000 cl 55

Land and Environment Court Act 1979, s 34

Canterbury-Bankstown Local Environmental Plan 2012, cll 4.3, 4.4, 6.1, 6.2

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

Texts Cited:

Canterbury Bankstown Community Participation Plan, 2019

Category:

Principal judgment

Parties:

Kazcorp Holdings (Canterbury) Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
M Bonanno (Solicitor)(Respondent)

Solicitors:
Macquarie Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2022/205029

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA-970/2021 for the construction of new lightweight roof over existing outdoor play area of an approved child care centre on the ground floor at (the Proposed Development) with respect to the premises at No G01, 364 Canterbury Road, Canterbury NSW 2193 legally described as Lot 100 SP 97362 (the Site).

2. Erected upon the Site is a mixed use residential (95 units) and commercial building. The Site is located at the ground floor and is used for the purpose of a centre based childcare centre pursuant to development consent DA-505/2014 on 29 September 2015, as amended. The development consent did not include any conditions restricting or limiting noise emissions from the childcare centre use. The Proposed Development has been designed to limit the acoustic impact of the childcare centre on the residential use above.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 3 and 6 February 2023. I presided over the conciliation conference.

4. At the conciliation conference, the parties 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 subject to conditions of consent.

5. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. 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 the parties explained how the jurisdictional prerequisites have been satisfied in a short written jurisdictional which I summarise below.

8. The proposed development includes work to the common property of Strata Plan 97362. Owners’ consent to the works was obtained, a copy of which was uploaded to the planning portal together with owners’ consent of the subject lot (100).

9. The Site is zoned B5 Business Development pursuant to the Canterbury Local Environmental Plan 2012 (CLEP). The development application before the Court seeks development consent for the structure only as the use of the Site for the purpose of a centre based childcare centre is already approved. In any event, the use is permissible in the B5 zone.

10. Clause 4.3 of the CLEP prescribes a height of building development standard of 18m. The Proposed Development does not exceed the height limit.

11. There is no floor space ratio development standard pursuant to cl 4.4 of the CLEP that applies to the Site.

12. The Site is shown on the Acid Sulfate Soils Map as being class 5 land. The works proposed do not disturb any soils and therefore the Proposed Development will not likely lower the watertable on adjacent class 1, 2, 3 or 4 land. Clause 6.1 of the CLEP is therefore not engaged.

13. No earthworks are proposed, and therefore cl 6.2 of the CLEP is not engaged.

14. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (the SEPP) requires a consent authority to:

1. Consider whether the land is contaminated;

2. 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

3. If the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

15. The Council has considered a report that was lodged with development application DA-505/2014 which notes that the Site was previously used for industrial (motor vehicle) uses, but that following an investigation the land was suitable for residential and childcare use. The Proposed Development does not disturb any soils and there are no accessible soils available to the childcare centre use. The Court is satisfied that the Site is suitable for the purpose of installing an awning over the approved childcare use. The development application does not seek to change the use of the Site and therefore s 4.6(4) of the SEPP is not engaged.

16. The Proposed Development was placed on public exhibition pursuant to the Canterbury Bankstown Community Participation Plan from 17 December 2021 to 21 January 2022. Four unique submissions were received. Objectors were provided with copies of the amended plans that now form part of the application.

17. 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 adopt the reasons given by the parties as set out above.

18. 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.

Notations:

19. The Court notes that:

1. Canterbury-Bankstown Council (the Council) as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application the subject of these proceedings DA-970/2021 and rely on the amended plans and documents as follows:

Drawing Number	Plan Name	Dated	Revision	Prepared By
A103	GA PLANS- Ground Floor	01/02/2023	F	Mackenzie Architect International
A104	GA PLANS- First Floor	01/02/2023	F	Mackenzie Architect International
A200	SECTIONS- Section A	01/02/2023	F	Mackenzie Architect International
A201	SECTIONS- Section B	01/02/2023	F	Mackenzie Architect International
A204	SECTIONS- Section E	01/02/2023	F	Mackenzie Architect International
A205	SECTIONS-Section Details	01/02/2023	F	Mackenzie Architect International
A400	ELEVATIONS- Building A Elevations	01/02/2023	F	Mackenzie Architect International
A401	ELEVATIONS- Building B Elevations	01/02/2023	F	Mackenzie Architect International
A402	ELEVATIONS- East/West Elevations	01/02/2023	F	Mackenzie Architect International
LPS4.55 21-327 (1)	LANDSCAPE PLAN [GROUND FLOOR]	08/06/2021	A	Conzept Landscape Architects
LPS4.55 21-327 (2)	LANDSCAPE PLAN [GROUND FLOOR]	08/06/2021	A	Conzept Landscape Architects
LPS4.55 21-327 (3)	SPECIFICATION + DETAILS	08/06/2021	A	Conzept Landscape Architects
LPS4.55 21-327 (4)	DETAILS	08/06/2021	A	Conzept Landscape Architects
A1206	ADDITIONAL INFORMATION- Schedule of Materials & Finishes	01/02/2023	C	Mackenzie Architect International

1. Noise Emission Assessment of Child Care Centre prepared by Renzo Tonin and Associates (TM819-01F01) (Revision 2) dated 2 February 2023; and

2. Young Academics Early Learning Centre, 364-374 Canterbury Road – Noise Management Plan prepared by Renzo Tonin and Associates (TM819-01F01) (Revision 2) dated 2 February 2023.

2. The Amended plans and documents were filed with the Court on 3 February 2023.

Orders:

20. 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 (NSW) (the Act).

2. The appeal is upheld.

3. Development consent is granted to development consent DA-970/2021 for the construction of new lightweight roof over existing outdoor play area of an approved child care centre on the ground floor at No. G0 1 / 364 Canterbury Road, Canterbury NSW 2193 subject to the conditions of consent contained at Annexure A.

E Espinosa

Commissioner of the Court

**********

Annexure A

Decision last updated: 10 February 2023