Keda Property Investments Pty Ltd v Hawkesbury City Council

[2023] NSWLEC 1681

Land and Environment Court

New South Wales

Medium Neutral Citation:

Keda Property Investments Pty Ltd v Hawkesbury City Council [2023] NSWLEC 1681

Hearing dates:

Conciliation conference on 6 September 2023

Date of orders:

14 November 2023

Decision date:

14 November 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs that have been thrown away as a result of the amendment of the applicant for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $1500 within 28 days of the date of these orders.

(2)   The appeal is upheld.

(3)   Development consent is granted to development application DA0036/23 for the demolition of existing structures, construction of a 75-place centre-based child care facility, outdoor play areas, basement car parking and landscaping at 6 Keda Circuit, North Richmond NSW 2754, subject to the conditions of consent at Annexure A.

Catchwords:

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

Legislation Cited:

Education and Care Services National Regulations 2011
Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.11, 8.15
Environmental Planning and Assessment Regulation 2021, s 38
Hawkesbury Local Environmental Plan 2012, cll 2.3, 4.3
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.9

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Department of Planning, Industry and Environment, Childcare Planning Guideline, 2017

Category:

Principal judgment

Parties:

Keda Property Investments Pty Ltd (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
R Frangi (Solicitor) (Applicant)
A Seton (Solicitor)(Respondent)

Solicitors:
Fortis Law (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/217328

Publication restriction:

Nil

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 deemed refusal of development application No. DA0036/2023 for the demolition of existing structures, construction of a 75-place centre-based child care facility, outdoor play areas, basement car parking and landscaping at 6 Keda Circuit, North Richmond, legally known as Lot 17 DP 255010 (development application).

2. 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 6 September 2023. I have presided over the conciliation conference.

3. Further information and amended plans were filed with the Court on 27 September 2023. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA0036/2023 in accordance with the documents listed at [20] (amended application). The key amendments are:

• Increase in the size of the outdoor play area; and

• Further information and/or updated reports relating to planning, stormwater drainage, contamination, landscaping and traffic.

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 for the amended application and granting development consent to the amended application subject to conditions of consent.

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

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

Jurisdictional Prerequisites

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 the jurisdictional prerequisites have been satisfied. 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, as set out below.

9. I am satisfied that owners consent accompanied the development application.

10. The subject site is zoned R3 Medium Density Residential pursuant to the Hawkesbury Local Environmental Plan 2012 (HLEP), where the proposed development is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

11. Clause 4.3 Height of buildings of the HLEP applies, which allows a maximum height of 10m. The parties agree and I accept on the basis of the Revised Statement of Environmental Effects prepared by Think Planners (Revised SEE) dated 14 September 2023 that the amended application is less than 10m in height, at 8.6m.

12. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The proposed development is accompanied a Preliminary Site Investigation Report prepared by Geotechnical Consultants Australia dated 3 June 2020 (PSI), which makes recommendations on managing potential contamination. The PSI and recommendations have been included in the conditions of consent at Annexure A. Accordingly, the parties agree, and I am satisfied, that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

13. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Ch 6 applies as the subject site is located within the Hawkesbury-Nepean Catchment. In accordance with the Revised SEE, I accept the evidence of the parties and am satisfied that ss 6.6, 6.7 and 6.9 of SEPP BC have been met.

14. Chapter 3 Educational establishments and child care facilities of State Environmental Planning Policy (Transport and Infrastructure) 2021(SEPP Transport and Infrastructure) applies to the proposed development.

15. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 of SEPP Transport and Infrastructure. Based on the Revised SEE, I have considered the provisions of ss 3.22, 3.23, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

16. The Respondent notified the development application between 6 April 2023 and 27 April 2023. Twenty-one submissions were received as a result of the notification period. At the onsite viewing of the conciliation conference, the Court and consent authority heard oral submissions from objectors. The written and oral submissions have been considered by the consent authority.

Conclusion

17. 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.

18. 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.

19. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

20. The Court notes that the respondent has approved, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA/0036/23 to rely upon the following amended plans and documents:

1.	Architectural Plans
	Cover Page	00	Baini Design	U	16 Aug 2023
	Compliance Table	01	Baini Design	U	16 Aug 2023
	Demolition Plan	02	Baini Design	U	16 Aug 2023
	Site Plan	03	Baini Design	U	16 Aug 2023
	Basement Plan	04	Baini Design	U	16 Aug 2023
	Ground Floor Plan	05	Baini Design	U	16 Aug 2023
	First Floor Plan	06	Baini Design	U	16 Aug 2023
	Elevations	07	Baini Design	U	16 Aug 2023
	Sections	08	Baini Design	U	16 Aug 2023
	Schedule of Finishes Drawing No. 10	Baini Design	U	16 Aug 2023
2.	Landscape Plans
	Landscape Concept	L – 01	Outside In Design	H	23 Aug 2023
	Front Fence Detail	L – 02	Outside In Design	H	23 Aug 2023
	Front Fence Detail	L – 03	Outside In Design	H	23 Aug 2023
	Landscape Structural Works	L – 04	Outside In Design	H	23 Aug 2023
	Landscape Concept First Floor Play Area	L – 05	Outside In Design	H	23 Aug 2023
3.	Stormwater Plans
	Cover Sheet	SW001	Capital Engineering Consultants	08	22 Aug 2023
	Standard Drainage Notes & Details	SW002	Capital Engineering Consultants	08	22 Aug 2023
	Basement Plan, Notes & Details	SW010	Capital Engineering Consultants	08	22 Aug 2023
	Suspended Basement Drainage Plan & Details	SW011	Capital Engineering Consultants	08	22 Aug 2023
	Ground Floor Plan & Details	SW020	Capital Engineering Consultants	08	22 Aug 2023
	OSD Notes & Details	SW021	Capital Engineering Consultants	08	22 Aug 2023
	First Floor & Roof Plan & Details	SW030	Capital Engineering Consultants	08	22 Aug 2023
	Erosion & Sediment Control Plan, Notes & Detail	ER001	Capital Engineering Consultants	08	22 Aug 2023
4.	Traffic & Parking Statement with Swept Path s		Hemanote	-	22 Aug 2023
5.	Acoustic
Supplementary Letter to Environmental Noise Impact Assessment	7618-2.1L REV A	Day Design	-	15 Sept 2023
6.	Plan of Management		2	15 Sept 2023
7.	Statement of Environmental Effects		Think Planners	-	14 Sept 2023

21. The Applicant filed the amended application on 27 September and final s 34 agreement with the Court on 6 November 2023.

Orders:

22. The Court orders:

1. The applicant is to pay the respondent’s costs that have been thrown away as a result of the amendment of the applicant for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $1500 within 28 days of the date of these orders.

2. The appeal is upheld.

3. Development consent is granted to development application DA0036/23 for the demolition of existing structures, construction of a 75-place centre-based child care facility, outdoor play areas, basement car parking and landscaping at 6 Keda Circuit, North Richmond NSW 2754, subject to the conditions of consent at Annexure A.

……………………….

S Porter

Commissioner of the Court

Annexure A (433324, pdf)

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Decision last updated: 14 November 2023