Khattar v The Hills Shire Council

[2024] NSWLEC 1370

Land and Environment Court

New South Wales

Medium Neutral Citation:

Khattar v The Hills Shire Council [2024] NSWLEC 1370

Hearing dates:

11 and 12 April and 6 May 2024

Date of orders:

02 July 2024

Decision date:

02 July 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No 1339/2022/HA as amended for the demolition of all existing structures and construction of a centre based child care facility to accommodate 45 children with basement car parking for 13 vehicles and removal of trees on land at 5 Rembrandt Drive Baulkham Hills 2153 legally known as Lot 24 DP 30744, is determined by the grant of development consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – centre based child care facility – assessment of submissions balanced against expert evidence - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.53, 79, 8.7

Land and Environment Court Act 1979, s 39

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Regulation 2021, s 38

The Hills Local Environmental Plan 2019, cll 2.2, 2.3, 2.7, 4.3, 4.4, 5.10, 7.1, 7.2, 7.3, 7.4, 7.7

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 10 (repealed)

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, Ch 3, ss 2.120, 2.122, 3.23, 3.26

Cases Cited:

Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426

Texts Cited:

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

The Hills Development Control Plan 2012

The Hills Section 7.12 Contributions Plan 2022

Category:

Principal judgment

Parties:

M Khattar (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Centurion Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/60571

Publication restriction:

No

Judgment

1. COMMISSIONER: Development for the purposes of a centre based child care centre is proposed on land at 5 Rembrandt Drive Baulkham Hills 2153 (legally known as Lot 24 DP 30744) (the site).

Background

2. Development Application DA 1339/2022/HA (the DA) was lodged by the Applicant with the Hills Shire Council (the Respondent) on 7 March 2022, seeking consent for the demolition of all existing structures in order to construct a two storey x 52 place ‘Centre-based Child Care Facility” with parking for 16 vehicles within a basement level on the site.

3. The DA was notified by the Respondent to adjoining properties between 10 March and 31 March 2022. Six submissions were received by the Respondent during the notification period.

4. On 12 September 2022, the Applicant provided amended plans and documentation for the proposed development. The amended DA was re-notified by the Respondent to adjoining properties between 21 September and 12 October 2022. One submission was received by the Respondent during the re-notification period.

5. As the site is located within an area zoned R4 for High Density Housing under the Hills Local Environmental Plan 2019 (the LEP), concerns were raised by adjoining landowners about the potential impacts on orderly development and site isolation by the proposed development of the site for a child care centre, as well as concerns about traffic, parking and pedestrian safety.

6. On 16 February 2023 the Respondent refused the DA.

Evolution of the Appeal

7. On 24 February 2023 the Applicant in these proceedings, M Khattar filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

8. On 22 February 2024 the Applicant was granted leave of the Court to amend the DA. The amended DA was re-notified by the Respondent to adjoining properties between 27 February 2024 and 12 March 2024. Two submissions were received from this notification period.

9. The Court also directed the Respondent to file an Amended Statement of Facts and Contentions (SOFAC) (later marked Exhibit 1) no later than 14 March 2024, and that experts in traffic, stormwater, resource recovery, and town planning confer on the amended development application and file amended joint expert reports by 28 March 2024.

10. The hearing commenced with a site view. No submitters attended the site view. At the commencement of the hearing, the Applicant made a request to file further amended plans, which had been provided to the Respondent the night before the hearing. Mr Seton for the Respondent advised that because the latest amendments to the proposed development generally satisfied the Respondent’s contentions, he would not oppose the request. However, the Respondent needed time to review the amended plans and to re-notify submitters.

11. The full suite of expert witness reports based on the further amended plans was filed with the Court on 12 May 2024, and indicated agreement had been reached between the experts on all the contentions raised (refer to para [24]). The hearing was adjourned to 6 May 2024 to allow time for the Respondent to re-notify submitters of the further amended plans.

12. With the agreement of the Respondent on 12 April 2024 the Applicant was granted leave of the Court by Notice of Motion to further amend the DA to be for the demolition of existing structures and construction of a centre based child care centre to accommodate 45 children and rely on the following amended plans and material:

1. Baini Design Architectural Drawlings Revision G dated 11 April 2024

2. Outside In Design Landscape Plans Revision J dated 12 April 2024

3. Deboke Engineering Stormwater Plans Revision J dated 12 April 2024.

4. Schedule of amendments for Revision G drawing by Baini Design.

5. Plan of Management Revision 5 dated 12 April 2024.

6. Hemanote Consultants Traffic and parking statement dated 11 April 2024 with long sections and swept paths.

7. Rodney Stevens Acoustics Consultants Noise Impact Assessment report R210459R1 Revision 3 dated 12 April 2024.

8. Deboke Engineering Excavation Methodology Report dated 11 April 2024.

13. The Court in granting the Applicant leave to rely upon the amended plans and other documents the subject of the Notice of Motion and exercised, under s 39(2) of the Land and Environment Court Act 1979 (LEC Act), the functions and discretions of The Hills Shire Council, as the relevant consent authority, to approve the amending of the DA by the Applicant, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, in accordance with the amended plans and other documents for which leave was granted.

14. The Applicant agreed to pay the costs of the Respondent thrown away as a result of the amendment of the DA allowed in this order pursuant to s 8.15(3) of the EPA Act, and that this was included in the orders of the Court dated 22 February 2024 and 12 April 2024.

The site and its context

15. The site comprises one lot, legally described as Lot 24 DP 30744, otherwise known as 5 Rembrandt Drive Baulkham Hills.

16. The site has a total area of 733m2, with a frontage of 18.595m to Rembrandt Drive and a rear boundary of 18.29m. The site has a skewed frontage resulting in a lot depth of 41.91m on the western boundary and 38.475m on the eastern boundary. The site has a cross fall from east to west of 1.2m over a distance of 18m.

17. The site currently contains a two storey residential dwelling. The surrounding locality is characterised by a mixture of low to high density housing types, on land zoned R4 Medium Density Residential Zone under the LEP. The locality is in a state of change due to its location and zoning.

18. Baulkham Hills Town Centre is located further south west of the site on the other side of Windsor Road, and includes “The Grove” shopping centre and other local amenities.

19. The site itself is located within the R4 Medium Density Residential Zone pursuant to cl 2.2 of the LEP.

20. Development for the purposes of centre based child care facilities is permissible with consent in the R4 zone pursuant to cl 2.3 of the LEP.

21. Clause 4.3 of the LEP permits a maximum height of buildings of 16m on the site.

22. The site is not subject to any maximum floor space ratio under cl 4.4 of the LEP.

Remaining Contentions (prior to further amended DA)

23. Prior to the filing of the further amended plans, there were a number of contentions raised by the Respondent that had not been fully resolved, including the following:

1. It had not been demonstrated that the proposal would not result in the isolation of adjoining properties;

2. The proposed development would result in adverse amenity impacts to adjoining properties;

3. The proposed built form was considered to be incompatible with the local character and surrounding streetscape;

4. Matters relating to the extent of earthworks had not been satisfactorily addressed as required by cl 7.2(3) of the LEP;

5. It had not been demonstrated that the proposed development would facilitate vehicular access to and from the site;

6. The proposal did not include an acceptable planting scheme or sufficient landscape screening;

7. Insufficient information had been submitted to enable a proper assessment of the likely stormwater impacts upon adjoining properties;

8. It had not been demonstrated that adequate areas had been provided on site to allow for the safe and efficient manoeuvring of delivery and service vehicles;

9. The proposal had a number of inconsistencies with the Child Care Planning Guidelines;

10. The cost of works had not been confirmed (to enable calculations for contributions in accordance with The Hills Section 7.12 Contributions Plan 2020; and

11. The proposed development represented an over-development of the site on the basis of the above contentions.

Proposed Amendments to DA for a centre based child care facility

24. As stated above at para [10], at the commencement of the hearing the Applicant applied for leave to further amend the DA (as noted in [9-10] above). The amendments were proposed to the DA to address the remaining contentions and included:

1. Removal of the car stacker from basement level, with basement wall setbacks decreased to 150mm off the boundaries;

2. Adjustment to the basement access grade level;

3. Reduction in the number of children to 45, requiring 5 staff car parking spaces and 8 visitor carparking spaces;

4. Upper level window glazing as agreed with the Respondent;

5. Updated acoustic report and fencing design;

6. Updated landscape plan and stormwater management plan to match the amended architectural plans;

7. Updated Plan of Management

25. The Respondent agreed to the proposed amendment of the DA, and generally to the changes proposed, however noting that more time would be required for it to fully assess the amended DA and advise submitters of the proposed changes.

26. On this basis the request to amend the DA was granted by the Court on 12 April 2024.

27. The hearing was adjourned to 6 May 2024 to allow for the re-notification to the submitters and for the Respondent to consider the amended plans in detail. The Respondent advised the Court that it had considered the submissions received following the re-notification, and that nothing had been raised to change its position not to oppose the proposed development, subject to the proposed conditions of consent filed with the Court on 5 May 2024.

Expert Evidence

28. The Court was assisted by expert evidence in the following disciplines:

1. Town Planning:

1. Mr Jonathon Wood, on behalf of the Applicant, and Patrick Hurley, on behalf of the Respondent.

2. Traffic:

1. Mr Paul Corbett, on behalf of the Applicant, and Mr Ramy Selim, on behalf of the Respondent.

3. Landscape and Aboricultural Matters:

1. Mr Scott Freeman, on behalf of the Applicant, and Mr Toby Piper, on behalf of the Respondent.

4. Stormwater Management:

1. Mr Andrew Arida, on behalf of the Applicant, and Mr Boo-Seong Khoo, on behalf of the Respondent.

5. Resource Recovery and Waste Management:

1. Mr Garry Dickens, on behalf of the Applicant, and Mr Edward Santos, on behalf of the Respondent.

29. The experts in these areas (with the exception of Resource Recovery and Waste Management) filed supplementary joint reports (dated 12 May 2024) responding to the amended SOFAC (Exhibit 1) and the revised architectural plans (Exhibit B) and the revised concept stormwater drainage plans (Exhibit D) which form part of the amended DA.

30. All the expert reports filed with the Court relating to the further amended plans indicated no areas of disagreement between the experts, and I am satisfied that these expert reports have reached agreement that the further amended plans address the remaining contentions. The Respondent indicated that it does not oppose the granting of consent based on the Draft Conditions of Consent filed with the Court on 5 May 2024.

31. It is noted that the Draft Conditions of Consent contain detailed conditions relating to waste management, including the implementation of the waste management plan submitted with the DA.

32. The Draft Conditions of Consent also require (at Condition 15) that the recommendations of the Acoustic Assessment and Report prepared by Rodney Stevens Acoustics Pty Ltd, referenced as Report 210459R1, dated 12 April 2024 and submitted as part of the amended DA be implemented as part of the approval of the proposed development.

Submitters’ concerns

33. In response to the re-notification of the further amended plans, two of the submitters (on behalf of their own property adjoining the site, and 7 other properties in the vicinity of the site) made a further submission which reaffirmed their original concerns. The submitters did not consider that the further amended plans had addressed their previous issues raised about:

1. Practical risks of developing a steep site, with traffic management risks and imposing an operative child care centre on a narrow, steep street with difficulties in accessing visitor parking in the basement;

2. Concerns about the operation of the proposed child care centre, its acoustic impacts on the neighbourhood, risk to surrounding residents and occupants of the child care facility, and lack of details landscaping on boundaries;

3. Design of the proposed child care centre in terms of its impacts on the environment and streetscape.

34. As discussed above at paragraphs [27-32], the experts for the Applicant and the Respondent provided a number of joint reports related to the further amended plans and agreed that the changes to the proposed development addressed all the concerns previously raised by the Respondent in the amended SOFAC (later marked Exhibit 1).

35. In relation to the acoustic impact of the proposed development, the Noise Impact Assessment Report prepared by Rodney Stevens Acoustics Pty Ltd, referenced as Report 210459R1, dated 12 April 2024 contains a number of recommendations to be implemented, including parameters for the management of the outdoor and indoor play areas and acoustic treatments and barrier details. These were agreed by the parties and are to be implemented as part of the conditions of consent.

36. In response to the traffic and parking issues, the further amended plans include a reduction in the number of children to 45, with the 13 car spaces to be provided in a basement car park, a reduction to 5 staff car spaces and 8 visitor car spaces, which complies with the requirements of The Hills Development Control Plan (the DCP).

37. The car stacker has been removed from the basement level, and the proposed vehicular ramp levels and grades have been revised in the further amended plans to allow access for a standard waste collection truck. The amended basement layout allows for all vehicles to enter and exit the site in a forward manner. The parties submit that basement car park in the further amended plans complies with DCP and the relevant Australian Standards.

38. In terms of the design and street presentation of the proposed development, the parties provided the following assessment:

1. The proposed building incorporates physical articulation of the built form and a mixed palette of building materials and finishes;

2. Proposed materials and finishes are consistent with that existing in the area while being contemporary in character;

3. The range of proposed materials significantly contributes to the articulation of the proposed building, reducing the perception of its overall bulk and mass;

4. The proposed design addresses the street frontage and acknowledges the prominence of the site, whilst minimising the dominance of the driveway entry;

5. The proposed development will be appropriately landscaped and is of a form and style that will positively contribute to the streetscape; and

6. The proposed development will not detrimentally impact on views or solar access of neighbouring properties.

39. Many of the changes made to the proposed development in the further amended plans serve to directly address the concerns raised by the submitters and have been fully assessed by the Respondent in giving its support to the further amended plans, as discussed above at [33-38]. I have closely considered the submissions received to the earlier iterations of the proposed development and the final submission to the further amended plans. I am satisfied that the concerns raised have been allayed by the evidence presented to the Court by the experts, either through the final set of design changes or satisfied by the conditions of consent.

40. I was referred to Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 by the Applicant in relation to the consideration of the submission made in relation to the further amended plans, and particularly to paragraph [72] which states:

“Whether or not there will be an adverse effect on amenity is a question of fact to be determined by the consent authority, in this case the Court. Although some of the conclusions by a consent authority may entail a subjective consideration, this nevertheless is carried out objectively in the weighing process. The community response to a proposal must be taken into account as part of the consideration of the public interest pursuant to s 79(1)(e) of the EPA Act. However, where the opinions are not supported by evidence objectively expressed by experts in a particular field of expertise, then the view of those who do not have the essential expertise will be given little or no weight or, at the most, less weight than the expert opinion”.

Jurisdictional Preconditions

State Environmental Planning Policy (Biodiversity and Conservation) 2021

41. State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments Amendment SEPP) commenced on 21 November 2022 and served to repeal the previous Chapters 6 to 12 of the Biodiversity and State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) and insert a new Chapter 6 (Water Catchments).

42. Section 6.65 of the Biodiversity SEPP provides that the former Chapters continue to apply to a development application which was lodged, but not fully determined, before the commencement of the Water Catchments Amendment SEPP.

43. The DA was lodged on 7 March 2022, prior to the commencement of the Water Catchments Amendment SEPP. This appeal was commenced on the refusal of the DA, as such, the DA has not yet been “finally determined” and the former Chapters of the Biodiversity and Conservation SEPP apply to the DA.

44. Accordingly, the former Chapter 10 (Sydney Harbour Catchment) of the Biodiversity and Conservation SEPP applies to the proposed development, which is located in the Sydney Harbour Catchment.

45. The site is more that 350m from Darling Mills Creek and more than 1km from the Parramatta River. The site is not flood prone, and appropriate drainage including stormwater detention which has been agreed by the parties is included in the further amended DA. The development is otherwise supported by an erosion and sediment control plan, and suitable stormwater management plans that manage any erosion and stormwater discharge associated with the development proposal.

41. I am satisfied that the proposed development meets the requirements of the Biodiversity SEPP in relation to the matters set out in Chapter 10.

State Environmental Planning Policy (Resilience and Hazards) 2021

47. 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.

48. The site has a historical residential use and is located in a residential locality. The parties advise that the Preliminary Site Investigation Report dated 14 July 2021 prepared by Australian Geoenviro confirms that based on the findings of their investigation, the site is considered suitable for the proposed redevelopment and land use, providing that the recommendations of report are undertaken.

49. I am satisfied that consent can be granted to the proposed development under the Resilience and Hazards SEPP, noting that Condition 16 of the conditions of consent requires that the recommendations of the Preliminary Site Investigation Report dated 14 July 2021 prepared by Australian Geoenviro be implemented.

State Environmental Planning Policy (Transport and Infrastructure) 2021

50. Section 2.120 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) does not apply to the proposed development as the development is not for residential purposes. The proposed development is not identified as a traffic generating development in Schedule 3 of the Transport and Infrastructure SEPP, and accordingly does not require referral to TfNSW pursuant to s 2.122 of the Transport and Infrastructure SEPP.

51. Chapter 3 of the Transport and Infrastructure SEPP aims to facilitate the effective delivery of educational establishments and early care facilities across the State and provides a planning regime for educational establishments and early education and care facilities. Section 3.23 requires that before determining a development application for development for the purpose of a centre based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development.

52. Section 3.26 of the Transport and Infrastructure SEPP identifies development standards for particular matters relating to a centre based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters, including indoor and outdoor space requirements.

53. The further amended plans provide at least 3.25m2 of unencumbered indoor play space and more than 7m2 of outdoor unencumbered floor space per child consistent with the requirements of the Education and Care Service National Regulations 2011 (the Regulations).

Child Care Planning Guideline 2021

54. 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.

55. In the amended SOFAC, the Respondent identified instances of non-compliance with the Child Care Planning Guideline (CCPG). The Respondent refused the DA on 16 February 2023, with one of the grounds of refusal being “The proposal does not satisfy the provisions of cl 3.23 of Transport and Infrastructure SEPP. The development is inconsistent with the Child Care Planning Guidelines (CCPG) design quality principles and does not deliver a building that is sympathetic to the streetscape and appropriate for the setting while minimising impacts on surrounding areas”.

56. These concerns raised by the Respondent to the original DA have been resolved with the further amended plans being compliant with the CCPG. Compliance otherwise with the CCPG is set out at pages 30 to 50 of the Statement of Environmental Effects (SEE) submitted with the DA.

Education and Care Services National Regulations 2011

57. The Regulations provide extensive controls and requirements in addition to that of the LEP and DCP and includes, amongst other matters:

1. Licensing and approvals processes;

2. Facilities and equipment requirements;

3. Staffing requirements;

4. Child number requirements;

5. Operational requirements;

6. Administrative requirements; and

7. Probity check requirements.

58. Compliance of the proposed development with the Regulations is set out at pages 56 to 58 of the SEE submitted with the DA.

The Hills Local Environmental Plan 2019

59. The LEP is the relevant local environmental planning instrument that applies to the site, which is zoned R4 High Density Housing under the LEP under cl 2.2. The proposed development is permissible in the zone under cl 2.3, and I consider that it is consistent with the zone objectives.

60. Demolition requires development consent pursuant to cl 2.7 of the LEP. The development provides for a demolition plan.

61. Pursuant to cl 4.3 of the LEP, a 16m building height limit applies to the site. The proposed development complies with cl 4.3 as no part of the building is higher than 16m.

62. Clause 4.4 of the LEP relates to Floor Space Ratio (FSR) controls and does not apply to the site.

63. As the site is not listed as a heritage item, or located within a heritage conservation area, cl 5.10 of the LEP is not relevant.

64. The site is not identified as being affected by acid sulfate soils, and cl 7.1 of the LEP relating to acid sulfate soils is not relevant.

65. Clause 7.2 of the LEP requires consent for the excavation of the site in relation to earthworks. The DA is supported by a Preliminary Site Investigation Report dated 14 July 2021 prepared by Australian Geoenviro, and a Cut and Fill plan and Earthworks Methodology prepared by Deboke Engineering Consultants.

66. The site is not identified as being flood prone, and cl 7.3 of the LEP is not relevant.

67. The site is not identified on the Terrestrial Biodiversity Map in the LEP, and cl 7.4 is not relevant.

68. Clause 7.7 of the LEP relates to design excellence for the erection of a building over 25m in height and does not apply in this case as the proposed building height is less than 16m.

The Hills Development Control Plan 2012

69. Compliance with the DCP as it relates to child care centres is set out at p58-66 of the SEE submitted with the DA.

Orders

70. The Court orders:

1. The appeal is upheld.

2. Development Application No 1339/2022/HA as amended for the demolition of all existing structures and construction of a centre based child care facility to accommodate 45 children with basement car parking for 13 vehicles and removal of trees on land at 5 Rembrandt Drive Baulkham Hills 2153 legally known as Lot 24 DP 30744, is determined by the grant of development consent, subject to the conditions of consent at Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 02 July 2024