Khoury v Cumberland Council

[2024] NSWLEC 1573

Land and Environment Court

New South Wales

Medium Neutral Citation:

Khoury v Cumberland Council [2024] NSWLEC 1573

Hearing dates:

Conciliation conference on 6 August 2024

Date of orders:

17 September 2024

Decision date:

17 September 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in the sum of $1,500 to be paid within 28 days of orders being made.

(2) The appeal is upheld.

(3) Development Application No. DA2022/0334 for the demolition of existing structures and the construction of a 100-place centre-based childcare facility at Lots 100 and 101 in DP 5296, being Nos. 5-7 Richardson Street, Merrylands is determined by the grant of consent subject to conditions contained in Annexure A.

Catchwords:

APPEAL – development application - construction of a 100-place centre based child care facility – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, Sch 1, Pt 2, s 23

Fisheries Management Act 1994

Land and Environment Court Act 1979, s 34

Water Management Act 2000

Children (Education and Care Services) Supplementary Provisions Regulation 2012 (repealed)

Cumberland Local Environmental Plan 2021, cll 2.5, 4.3, 4.4, 5.1, 5.1A, 5.21, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.9, 6.10, 6.14, 6.16

Education and Care Services National Regulations, regs 107, 108

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.60

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 3.3, 3.22, 3.23, 3.26

Texts Cited:

Child Care Planning Guideline

Category:

Principal judgment

Parties:

Chris Khoury (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Cumberland Council (Respondent)

File Number(s):

2024/52303

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal against the refusal by Cumberland Council (the Council) of development application DA2022/0334 (DA) for the demolition of existing structures and the construction of a 100-place centre based child care facility at 5-7 Richardson Street, Merrylands (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 6 August 2024. I presided over the conciliation conference.

3. During that process, the Council approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant amending the DA in accordance with the amended plans and documents as set out below and filed with the Court on 11 September 2024:

1. Architectural Plans prepared by CK Design, Issue F, dated 22 August 2024 and drawing Nos. A3-01 to A3-28.

2. Stormwater Engineering Plans prepared by Prime Engineering Consultants, Issue D, dated 26 August 2024 and drawing Nos. SW01 to SW09.

4. The amended DA was not renotified as the Council formed the view that the amendments to the development did not increase its environmental impacts, in accordance with Sch 1, Pt 2, s 23 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. Having resolved the contentions raised, the parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s34 written agreement. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement.

6. Based on the evidence and the submissions of the parties in respect to my jurisdiction, I am satisfied that there is no jurisdictional impediment to the grant of development consent as proposed. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The preconditions of relevance are addressed in a summary form below:

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

8. The proposal includes associated landscaping works that involve penetration of the ground within 2m of an electricity distribution pole. Consistent with s 2.48(1)(a) of the TI SEPP, written notice was given to Endeavour Energy. That authority does not raise any objection subject to the imposition of its recommended conditions.

9. The proposed development is defined as a centre-based child care facility under s 3.3 of the TI SEPP.

10. Concurrence of the Secretary of the Department of Education is not required for the development under s 3.22 of the TI SEPP as the design of the indoor and outdoor play areas complies with regs 107 and 108 of the Education and Care Services National Regulations (National Regulations).

11. Consistent with s 3.23 of the TI SEPP, applicable provisions of the Child Care Planning Guideline have been considered and the parties submit and I accept that the amended development achieves the applicable provisions.

12. Section 3.26 of the TI SEPP contains non-discretionary development standards relating to:

• (a) location relative to another early education and care facility;

• (b)(i) indoor and outdoor unencumbered space;

• (b)(ii) indoor and outdoor unencumbered space under the Children (Education and Care Services) Supplementary Provisions Regulation 2012;

• (c) site area and site dimensions; and

• (d) colour of building materials or shade structures.

13. The development complies with (a), (b)(i), (c) and (d).

Education and Care Services National Regulations (National Regulations)

14. Regulations 107 and 108 of the National Regulations set area requirements for indoor and outdoor unencumbered space as detailed in the table below. Also included in the table are the applicant’s and the Council’s calculations.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

15. Section 4.6 of the RH SEPP nominates matters that must be considered before a development application is determined.

16. By reference to s 4.6(4), the parties are agreed on the evidence and I accept that:

• the site is not within an investigation area;

• the site does not contain and is not previously known to have contained development for a purpose referred to in Table 1 to the contaminated land planning guidelines; and

• to the parties’ knowledge, no use identified in Table 1 has occurred on the site.

17. Section 4.6(2) of the RH SEPP does not require the provision of a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines. However, s 4.6(1) provides that a consent authority must not consent to the carrying out of development unless:

• it has considered whether the site is contaminated, and

• if the site is contaminated, it is satisfied that the site 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

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

18. To address s 4.6(1), the applicant filed a combined preliminary and site investigation report with the application. The report concluded that the site requires minor remediation works to the land and after such works, the site will be suitable for the development.

19. A Remedial Action Plan (RAP) was submitted with the application. The RAP concluded that remediation of the site can be achieved and the site made suitable for the proposed land use subject to the implementation of the strategies, methods and measures detailed in the RAP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

20. Chapter 6 of the BC SEPP applies as the site is within the Sydney Harbour Catchment area and the site is identified as flood liable land (s 6.5).

21. In relation to the matters raised by s 6.6(1) of the BC SEPP, the parties submit and I accept that:

• Subject to the installation and maintenance of sediment controls during building works the development will have a neutral effect on the quality of water entering a waterway.

• The development will not have an adverse impact on water flow in a natural waterbody.

• There will be no discernible increase to stormwater runoff that would adversely affect downstream land.

• The development does not incorporate on-site stormwater retention, infiltration or reuse.

• The development will have no impact on the level and quality of the water table.

• Cumulative environmental impacts from the development on the regulated catchment are negligible.

• The development makes adequate provision to protect the quality and quantity of groundwater.

22. In relation to the matters raised by s 6.6(2) of the BC SEPP, the parties submit and I accept that:

• The effect on the quality of water entering a natural waterbody will be as close as possible to neutral.

• The development has negligible and satisfactory water flow impacts for a natural waterbody.

23. In relation to the matters raised by s 6.7(1) of the BC SEPP, the parties submit and I accept that:

• To the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor and not determinative of the application.

• The development does not involve the clearing of riparian vegetation.

• The development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway.

• The development will not have an adverse impact on wetlands.

• The development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures.

• The development does not adjoin a natural waterbody.

24. In relation to the criteria in s 6.7(2) of the BC SEPP, the parties submit and I accept that:

• Any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development.

• The development will not have a direct, indirect or cumulative adverse impact on aquatic reserves.

• No approval or permit is required under the Water Management Act 2000 or the Fisheries Management Act 1994.

• The land does not abut a natural waterbody.

• There will be no adverse impact on wetlands.

25. In relation to the matters raised by s 6.8(1) of the BC SEPP, the parties submit and I accept that the development will have no impact on the periodic flooding that benefits wetlands, and other riverine ecosystems.

26. In relation to the criteria in s 6.8(2) of the BC SEPP, the parties submit and I accept that:

• The development will not result in a release of pollutants in the event of a flood.

• The development will not have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

27. In relation to the matters raised by s 6.9(1) of the BC SEPP, the parties submit and I accept that:

• The development will have no impact on recreational land uses in the Sydney Harbour catchment.

• The development has no impact on public access to and around foreshores.

28. In relation to the criteria in s 6.9(2) of the BC SEPP, the parties submit and I accept that:

• The development has no impact on public access to and from natural waterbodies for recreational purposes.

• The development does not involve new or existing points of public access to natural waterbodies.

• The land does not form part of a foreshore of a natural waterbody.

29. In relation to s 6.10 of the BC SEPP, the parties submit and I accept that the development will not have an adverse environmental impact for adjacent and downstream local government areas.

30. In relation to s 6.11 of the BC SEPP, the land is not within 100m of a natural waterbody.

31. The evidence is that the site is not within a riverine scenic area (s 6.12), or a Hawkesbury-Nepean conservation area sub-catchment (s 6.13) or the Sydney Drinking Water Catchment (s 6.60) and that the development does not involve temporary use of land (s 6.14).

Cumberland Local Environmental Plan 2021 (LEP)

32. The site is zoned R3 Medium Density Residential and centre-based child care facilities are permitted with consent in the zone.

33. The R3 zone objectives are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that non-residential land uses are located in a setting that minimises impacts on the amenity of a medium density residential environment.

• To encourage residential development that maintains the amenity of the surrounding area.

34. The Council is satisfied that the development satisfies the third and fourth zone objectives and that the remaining objectives do not warrant refusal of the application.

35. Clause 4.3 of the LEP provides for a maximum building height of 9m for the subject site. The proposed building height is 8.25m and compliant.

36. The site is subject to a maximum floor space ratio (FSR) control of 0.7:1 under cl 4.4. The proposed FSR for the development complies at 0.44:1.

37. Clause 5.21 of the LEP draws upon the Flood Risk Management Manual for the definition of a flood planning area. Council’s flood mapping shows part of the site as being subject to the 1% Annual Exceedance Probability flood level, portions being within the flood fringe and large portions of the site being subject to the flood planning level which is a 500mm freeboard above the 1% level.

38. In respect of cl 5.21(2), the parties submit and I accept that subject to the deferred commencement condition Nos. 2 and 5, the development:

• is compatible with the flood function and behaviour on the land;

• will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

• will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

• incorporates appropriate measures to manage risk to life in the event of a flood; and

• will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

39. In respect of flooding considerations raised by cl 5.21(3) of the LEP, the parties submit and I accept that:

• The impact of the development on projected changes to flood behaviour as a result of climate change are de minimis and not of determinative weight.

• The design and scale of the building is satisfactory having regard to flooding.

• The development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of flood.

40. There is no realistic potential to modify, relocate or remove buildings resulting from the development if the surrounding area is impacted by flooding.

41. Development consent is required under cl 6.2 for the proposed basement excavation earthworks. In relation to the criteria in cl 6.2(3), the parties submit and I accept that:

• The development’s impact on drainage patterns is acceptable as demonstrated by the additional flood report provided.

• The excavation is part of the proposed redevelopment of the site and will not of itself frustrate the future use or redevelopment of the site.

• The quality of soil to be excavated is de minimis that the conditions of consent have been prepared to ensure the use of clean fill, and the disposal of excavated material to an appropriate destination.

• The proposed excavation will not detrimentally affect existing and likely amenity of adjoining properties.

• The likelihood of disturbing relics is low. Safeguards are implemented via conditions of consent to suspend work pending the unearthing of relics.

• The site will not have adverse impacts on a waterway, drinking water catchment of environmentally sensitive area.

• The prospect of any adverse impacts on such areas can be managed by conditions, including the provision and maintenance of sediment and erosion control measures.

42. Clause 6.4 of the LEP requires the consent authority to be satisfied of the availability of various essential services, or that adequate arrangements have been made to make available access to the essential services. The Council is satisfied and I accept that services are available or can be made available for water supply, electricity supply, the disposal and management of sewage, stormwater drainage and suitable vehicle access.

43. In relation to cl 6.7 of the LEP, the parties submit and I accept that:

• the extent of water permeable surfaces is within reasonable expectations for this form of development;

• it is unnecessary to include on-site stormwater retention for use as an alternate supply to mains water; and

• the development avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters.

44. The site is marked on the Salinity Map as ‘Potential Moderate Salinity Land’. In relation to cll 6.9(3) and 6.9(4), the parties submit and I accept that:

• the development is not likely to have an adverse impact on salinity processes on the land;

• salinity is not likely to have an impact on the development in any meaningful way;

• the development’s design and siting will avoid any potential significant adverse environmental impact with regard to salinity; and

• having regard to the above, no condition of consent is required to minimise or mitigate salinity related impacts.

45. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their agreement.

46. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in the sum of $1,500 to be paid within 28 days of orders being made.

2. The appeal is upheld.

3. Development Application No. DA2022/0334 for the demolition of existing structures and the construction of a 100-place centre-based childcare facility at Lots 100 and 101 in DP 5296, being Nos. 5-7 Richardson Street, Merrylands is determined by the grant of consent subject to conditions contained in Annexure A.

……………….

S Dixon

Senior Commissioner of the Court

Annexure A (366611, pdf)

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Decision last updated: 17 September 2024