Kouzi v Sutherland Shire Council

[2022] NSWLEC 1463

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kouzi v Sutherland Shire Council [2022] NSWLEC 1463

Hearing dates:

Conciliation Conference 19 August 2022

Date of orders:

05 September 2022

Decision date:

05 September 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

1) The appeal is upheld

2) Development Application (DA) No. 21/0485, as amended, for the demolition of the existing building and structures and the construction of a centre based child care facility for 43 children including on-site carparking, landscaping and other associated works on land legally described as Lot 5 DP 737257 known as 1 Lawson Place, Barden Ridge is determined by way of the grant of consent subject to the conditions in Annexure A.

3) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent, under s 8.15(3) of the Environmental Planning and Assessment Act 1979, for the agreed amount of $12,000 payable within 60 days.

Catchwords:

DEVELOPMENT APPLICATION – childcare centre – amended plans and further information – conciliation conference - agreement reached between the parties – orders made

Legislation Cited:

Education and Care Services National Regulation regs 107,108

Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000 cl 55

Land and Environment Court Act 1979 ss 34, 39

State Environmental Planning Policy No 55—Remediation of Land

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

State Environmental Planning Policy (Transport and Infrastructure) 2021 s 3.22

Sutherland Shire Local Environmental Plan 2015 cl 6.4, 6.16, 6.18

Texts Cited:

NSW Department of Planning and Environment, Childcare Planning Guideline (August 2017)

Category:

Principal judgment

Parties:

Mitri Kouzi (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
C Rose, Solicitor (Applicant)
J Amy, Solicitor (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2021/344235

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Sutherland Shire Council of development application DA No.21/0485. The development application, as amended, seeks consent for the demolition of the existing building and structures and the construction of a centre based child care facility for 43 children including on-site carparking, landscaping and other associated works. The development is proposed at 1 Lawson Parade, Barden Ridge (Lot 5 DP 737257).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

3. The appeal was initially listed for a conciliation conference on 30 March 2022 in accordance with s 34 of the Land and Environment Court Act 1979 (LEC Act). No agreement was reached at the conciliation, which was terminated, and the matter was listed for hearing. Following the conciliation discussions continued between the parties. The discussions led to the production of amended plans and documentation, which along with expert evidence, assisted an agreement in principle being reached between the parties. The amended plans have been lodged on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). At the request of the parties the matter was listed for a further conciliation conference on 19 August 2022. I presided at the further conciliation conference. A signed agreement pursuant to s 34(3) of the LEC Act was filed with the Court on 19 August 2022. The agreement is that the appeal be upheld, and the development application be approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The development application was made with the consent of the owner of the subject site.

2. The development application in its original and amended forms has been notified by the Respondent. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) came into force on 1 March 2022. SEPP RH transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) to the new instrument. In determining the development application, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the SEPP RH. I accept the agreed submission of the parties that the site has been continually used for residential purposes since the original subdivision; that it is considered highly unlikely that the site is contaminated and that there is no indication of previous uses that would cause contamination. I accept that the site will be suitable for the proposed development.

4. I note that no concurrence is required under s 3.22 of State Environmental Planning Policy (Transport and Infrastructure) 2021 as the proposal complies with regulation 107 of the Education and Care Services National Regulation in relation to indoor unencumbered space and regulation 108 in relation to outdoor unencumbered space.

5. In determining the development application, I have taken into consideration the applicable provisions of the Childcare Planning Guideline: Delivering quality childcare for NSW and I consider that the proposed development is acceptable.

6. Sutherland Shire Local Environmental Plan 2015 (LEP 2015) applies to the site, which is zoned R2 Low Density Residential. Development works for the purpose of childcare centres are permitted with consent in the zone.

7. The development application is compliant with the maximum height, landscape area and FSR development standards contained in LEP 2015.

8. Clause 6.4: Stormwater Management in LEP 2015 applies. The parties are satisfied, and I agree, that the states of satisfaction required at cl 6.4(3) of LEP 2012 are met by the proposed development and the stormwater plans prepared by the Applicant.

9. In determining whether to grant consent to the development application I have consider the matters listed at cl 6.16(1) of LEP 2015 and I am satisfied after considering these factors that the urban design of the development is acceptable. Further, cl 6.18 of LEP 2015 applies as the development is for non-residential development on land zoned R2 Low Density Residential. I am further satisfied that following the consideration of the factors at cl 6.18(1) of LEP 2015 the urban design of the development is acceptable.

10. A covenant presently burdens the site which has the effect of restricting the height of the building to a single storey of habitable area above natural ground level. Sutherland Shire Council is the beneficiary of the covenant and agrees to its variation. Further, pursuant to s 39 of the LEC Act the Court has the power to vary the covenant. I accept it is appropriate to do so.

5. 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.

6. 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.

7. The Court orders that:

1. The appeal is upheld

2. Development Application (DA) No. 21/0485, as amended, for the demolition of the existing building and structures and the construction of a centre based child care facility for 43 children including on-site carparking, landscaping and other associated works on land legally described as Lot 5 DP 737257 known as 1 Lawson Place, Barden Ridge is determined by way of the grant of consent subject to the conditions in Annexure A.

3. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent, under s 8.15(3) of the Environmental Planning and Assessment Act 1979, for the agreed amount of $12,000 payable within 60 days.

…………………………

D M Dickson

Commissioner of the Court

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Annexure A 

Decision last updated: 05 September 2022