Khoury v Campbelltown City Council

[2023] NSWLEC 1395

Land and Environment Court

New South Wales

Medium Neutral Citation:

Khoury v Campbelltown City Council [2023] NSWLEC 1395

Hearing dates:

Conciliation Conference 11 July 2023

Date of orders:

25 July 2023

Decision date:

25 July 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Application as agreed or assessed.

(2)   The appeal is upheld.

(3)   Development application 1655/2022/DA-C for the consolidation of Lot 8 in Deposited Plan 254880 and Lot 8 in Deposited Plan 241301 and the construction of a two-storey, 71 place centre-based childcare centre with basement parking on the land at 24 Birdsville Crescent, Leumeah NSW 2560, is determined by the grant of development consent subject to the conditions in the annexure marked "A”.

Catchwords:

DEVELOPMENT APPEAL – childcare centre – remediation of land – conciliation conference – agreement between the parties - orders

Legislation Cited:

Campbelltown Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 5.21, 7.3, 7.6, 7.10, 7.13, 7.20

Education and Care Service National Regulations 2011

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

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Industry and Employment) 2021, Ch 3

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Chs 2, 3, ss 2.48, 2.98, 2.120, 3.3, 3.26, Sch 3

Texts Cited:

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

National Environment Protection (Assessment of Site Contamination) Measure, 1999 (April 2013)

Category:

Principal judgment

Parties:

Joshua Khoury (First Applicant)
Hala El Khoury (Second Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
A Sarkis (Solicitor)(Applicant)
L Rafaelle (Solicitor)(Respondent)

Solicitors:
Fortis Law (Applicant)
Bartier Perry (Respondent)

File Number(s):

22/254009

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 No 1655/2022/DA-C seeking consent for the construction of a centre-based child care centre with basement parking (the Proposed Development) at 24 Birdsville Crescent, Leumeah legally described as Lot 8 DP254880 and Lot 8, DP241301 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 July 2023. I have presided over the conciliation conference.

3. 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 to the development application subject to conditions.

4. 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.

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

6. 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 in an agreed jurisdictional statement to which I have had regard and summarise as relevant below.

7. The Campbelltown Local Environmental Plan 2015 (CLEP) is the relevant local environmental planning instrument that applies to the Site. The Site is zoned R2 Low Density Residential under the CLEP, and the Proposed Development is permissible with consent in R2 zone.

8. The Proposed Development is located wholly below the 8.5m maximum height of building development standard prescribed pursuant to cl 4.3 of the CLEP with a proposed height of 8.3m. Similarly, the Proposed Development has a floor space ratio (FSR) of 0.51:1, and with the maximum FSR of 0.55:1 development standard prescribed by cl 4.4 of the CLEP.

9. The Site is not listed as a heritage item and there is sufficient separation between the heritage images in the broader locality, and the Site. I am satisfied that the effect of the Proposed Development on the heritage significance of a heritage item or heritage conservation area concerned has been duly considered pursuant to cl 5.10 of the CLEP.

10. The Site is not identified as:

1. being flood prone (cl 5.21, CLEP)

2. “Biodiversity” on the Natural Resources-Biodiversity Map (cl 7.20, CLEP)

3. “Riparian Land and Waterways” on Natural Resources-Riparian Land and Waterways Map (cl 7.3, CLEP)

4. being located within the “Escarpment Preservation Area” (cl 7.6, CLEP)

5. on the design excellence map (cl 7.13, CLEP)

11. I am satisfied that essential services are provided to the Site as required by cl 7.10 of the CLEP.

12. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) relates to the consideration of whether land is contaminated with determining an application for development consent. Specifically, a consent authority must not grant consent to a development if it has considered whether a site is contaminated, and if it is, that it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use. In that regard, the Applicant has undertaken a Preliminary Site Investigation (PSI), a Targeted Detailed Site Investigation (TDSI) and a Remedial Action Plan (RAP) was prepared by Geotechnical Consultants Australia (GCA), all filed with the Court on 7 July 2023. The PSI and TDSI identify the following exceedances of the National Environment Protection (Assessment of Site Contamination) Measure 1999, (NEPM) Assessment Criteria for Residential (A) sites (RAP, page 4):

“a. NEPM 2013 Health Screening Level (HSL-A):

i. Asbestos (ACM and AF/FA) in the fill material in two (2) sample locations”

13. These exceedances require the implementation of the RAP for the site to be made suitable for the proposed use. GCA found that the Site can be made suitable for the Proposed Development and intended use as a child care centre (NEPM Residential (A)), subject to the implementation and completion of the measures outlined in the RAP. The RAP, at page 4, provides as follows:

“The Asbestos contamination will be remediated by excavation and lawful off-site disposal of contaminated soil to an appropriately licensed landfill facility. This approach is preferred as it will manage human health risk by physically removing the contamination from the site.

Following the completion of the remediation procedures, validation sampling will be undertaken to measure the successful application of the remediation strategies. If validation sampling fails (indicating residual contamination on-site) further remedial works will be undertaken. If validation sampling indicates no residual contamination on-site, the Site Validation Report can be prepared by a qualified environmental consultant, which includes all relevant site data, analytical results and details of remedial processes.”

14. The RAP is referenced as an approved document in the conditions of consent, and Conditions 71, 75 and 116 have also been imposed by Council. For these reasons, I am satisfied that the terms of s 4.6 of the Resilience and Hazards SEPP have been complied with.

15. No signage is proposed as part of the Proposed Development, however, it is anticipated that signage will be subject to future development applications and in that regard, it is noted that Ch 3 of the State Environmental Planning Policy (Industry and Employment) 2021 contains controls for advertising and signage.

16. Chapter 2 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) provides a consistent planning regime for infrastructure and the provision of services across the State, along with providing for consultation with relevant public authorities during the assessment process. The Proposed Development does not come within any of the relevant jurisdictional provisions of the Transport and Infrastructure SEPP, including the following:

1. the Site is not in the vicinity of electricity infrastructure that would require concurrence of the electricity supply authority (s 2.48);

2. the Site is not in the vicinity of rail infrastructure (s 2.98);

3. the Proposed Development is not located within proximity to a classified road (s 2.120);

4. the Proposed Development is not identified as traffic generating development by Sch 3 of the Transport and Infrastructure SEPP. Accordingly, the proposal is not required to be referred to the RMS for comment (s 2.122).

17. Chapter 3 of the Transport and Infrastructure SEPP provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across the State.

18. The Proposed Development relates, amongst other things, to a centre-based child care facility under s 3.3 of the Transport and Infrastructure SEPP. I am satisfied that the applicable provisions of the Child Care Planning Guidelines have been taken into consideration by the parties (s 3.23, Transport and Infrastructure SEPP) because compliance with the Child Care Planning Guidelines is addressed at pages 32 to 55 of the Statement of Environmental Effects (SEE) filed with the Class 1 Application.

19. Clause 3.26 of the Transport and Infrastructure SEPP sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority from requiring more onerous standards for those matters. Section 3.26(2) of the Transport and Infrastructure SEPP sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Relevantly, s 3.26(2)(b) provides the requirements for minimum indoor or outdoor space. The Proposed Development provides 234m² of unencumbered indoor play space and 501m² of unencumbered outdoor play space which complies with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations 2011, which requires 3.25m² of unencumbered indoor play space and 7m² of unencumbered outdoor play space per child (cl 107 and 108).

20. Compliance with Education and Care Services National Regulations 2011 is set out at pages 56 to 57 of the SEE filed with the Class 1 Application. The relevant controls and requirements include the following:

1. licensing and approvals processes, including documentation requirements;

2. facilities and equipment requirements;

3. staffing requirements;

4. child number requirements;

5. operational requirements;

6. administrative requirements;

7. probity check requirements; and

8. various miscellaneous requirements.

21. For these reasons, 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.

22. 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:

23. The Court notes that:

1. Campbelltown City Council as the relevant consent authority has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending development application 1655/2022/DA-C to rely upon the following amended plans and documents (Amended Development Application):

Architectural
Cover Page	000	Janssen Designs	C	9 Feb 2022
Calculations and LEP Controls	001	Janssen Designs	C	9 Feb 2022
Site Context Plan	002	Janssen Designs	C	9 Feb 2022
Site Analysis Plan	003	Janssen Designs	C	9 Feb 2022
Site Plan	004	Janssen Designs	C	9 Feb 2022
Basement Plan	005	Janssen Designs	C	9 Feb 2022
Ground Floor Plan & Acoustic Details	006	Janssen Designs	C	9 Feb 2023
First Floor Plan & Acoustic Details	007	Janssen Designs	C	9 Feb 2023
Roof Plan	008	Janssen Designs	C	9 Feb 2023
Covered Outdoor Area Diagrams & Outdoor Area Calculations	009	Janssen Designs	C	9 Feb 2023
Cut and Fill Diagram	010	Janssen Designs	C	9 Feb 2023
North + South Elevations + Streetscapes	011	Janssen Designs	C	9 Feb 2023
East, West + South Elevations	000	Janssen Designs	C	9 Feb 2023
Sections	013	Janssen Designs	C	9 Feb 2023
Maximum Building Height Diagram	014	Janssen Designs	C	9 Feb 2023
Perspective Images 1 & 2	015	Janssen Designs	C	9 Feb 2023
Perspective Images 3 & 4	016	Janssen Designs	C	9 Feb 2023
Perspective Images 4 & 5	016B	Janssen Designs	C	9 Feb 2023
Shadow Diagrams	017	Janssen Designs	C	9 Feb 2023
Emergency Evacuation Plans	018	Janssen Designs	C	9 Feb 2023
Shadow Diagram – 8am June 21st	019	Janssen Designs	C	9 Feb 2023
Shadow Diagram – 9am June 21st	020	Janssen Designs	C	9 Feb 2023
Shadow Diagram – 10am June 21st	021	Janssen Designs	C	9 Feb 2023
Shadow Diagram – 11am June 21st	022	Janssen Designs	C	9 Feb 2023
Shadow Diagram – 12 noon June 21st	023	Janssen Designs	C	9 Feb 2023
Shadow Diagram – 1pm June 21st	024	Janssen Designs	C	9 Feb 2023
Shadow Diagram – 2pm June 21st	025	Janssen Designs	C	9 Feb 2023
Shadow Diagram – 3pm June 21st	026	Janssen Designs	C	9 Feb 2023
Landscape
Ground Floor	101	Canvas Landscape Architects	B	28 Jun 2023
First Floor	102	Canvas Landscape Architects	B	28 Jun 2023
Proposed Plant Schedule & maintenance Program	103	Canvas Landscape Architects	B	28 Jun 2023
Civil
Title Page, Notes and Details	CIV001	CEC	E	27 Jun 2023
Civil Works Site Plan	CIV 010	CEC	E	27 Jun 2023
B99 Design Vehicle Long-Sections	CIV 011	CEC	E	27 Jun 2023
Design Cross-Sections	CIV 012	CEC	E	27 Jun 2023
Campbelltown Council Standard Notes and Details	CIV020	CEC	E	27 Jun 2023
Stormwater
Cover Sheet	SW001	CEC	E	27 Jun 2023
Basement Floor, Notes & Details	SW010	CEC	E	27 Jun 2023
Suspended Drainage Plan	SW011	CEC	E	27 Jun 2023
Ground Floor, Notes & Details	SW020	CEC	E	27 Jun 2023
On-Site Detention Section & Details	SW021	CEC	E	27 Jun 2023
First Floor & Roof Plan, Notes & Details	SW030	CEC	E	27 Jun 2023
Erosion & Sediment Control Plan	ER001	CEC	E	27 Jun 2023
Drains Model	-	CEC	E	27 Jun 2023
B-Calculations	-	CEC	B	-
Traffic
B85 Vehicle Entering Basement and B99 Vehicle Existing Basement		Terraffic	-	12 Feb 2023
B99 Vehicle Entering Basement and B85 Vehicle Exiting Basement		Terraffic	-	12 Feb 2023
B85 Vehicle Accessing Staff Parking Space 06		Terraffic	-	12 Feb 2023
B85 Vehicle Accessing Staff Parking Space 07		Terraffic	-	12 Feb 2023
Environmental Noise Assessment		Day Design	A	8 Mar 2023
Plan of Management		Janssen Design	B	Feb 2022
Geotechnical
Detailed Site Investigation		GCA	1	15 Mar 2023
CENVP SC Review		Harwood Environmental Consultants	-	15 Mar 2023
Remedial Action Plan		GCA	1	12 Apr 2023
CENVP SC Review		Old Maple Pty Ltd	-	14 Apr 2023
Arboricultural Impact Assessment and Tree Management Plan		Horticultural Management Services	1	12 Jan 2023

2. The applicant filed the Amended Development Application with the Court on 7 July 2023.

Orders:

24. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Application as agreed or assessed.

2. The appeal is upheld.

3. Development application 1655/2022/DA-C for the consolidation of Lot 8 in Deposited Plan 254880 and Lot 8 in Deposited Plan 241301 and the construction of a two-storey, 71 place centre-based childcare centre with basement parking on the land at 24 Birdsville Crescent, Leumeah NSW 2560, is determined by the grant of development consent subject to the conditions in the annexure marked "A”.

E Espinosa

Commissioner of the Court

Annexure A

**********

Decision last updated: 25 July 2023