Kumar v Blacktown City Council

[2024] NSWLEC 1642

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kumar v Blacktown City Council [2024] NSWLEC 1642

Hearing dates:

Conciliation Conference 26 September 2024

Date of orders:

16 October 2024

Decision date:

16 October 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The Appeal is upheld.

(2)   Development Application No. DA-23-00599, as amended, for the demolition of existing dwellings and construction of a centre based child care facility for 68 children with associated car parking area, and tree removal on land legally described as Lot A and Lot B in Deposited Plan 388259 and known as 114 and 116 Elizabeth Street, Riverstone, NSW, 2765, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, Sch 1 Pt 2 cl 23

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Blacktown Local Environmental Plan 2015, cll 2.7, 4.3, 7.5

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.6

Education and Care Services National Regulations 2011

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

Texts Cited:

Blacktown City Council, Community Engagement Strategy and Community Participation Plan 2022-2024, 26 October 2022

Blacktown Development Control Plan 2015

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

Category:

Principal judgment

Parties:

Amit Kumar (First Applicant)
Reema Nagpal (Second Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicants)
D Loether (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicants)
Bartier Perry (Respondent)

File Number(s):

2023/239237

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 DA-23-00599 for the demolition of existing single storey dwellings and construction of a 70 place child care centre with associated car parking (the Proposed Development) at 114 and 116 Elizabeth Street, Riverstone NSW 2765 legally described as Lot A and Lot B in DP 388259 (the Site).

2. The matter was listed for hearing however at the commencement of the hearing the parties made an application for the matter to be listed for conciliation. Accordingly, 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 26 September 2024 and I 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 following amendments to the Proposed Development. This decision involved the Court upholding the appeal and exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions.

4. The Amendments to the Proposed Development were not renotified as the Respondent formed the view that the amendments to the development did not increase its environmental impacts, in accordance with cl 23 of Schedule 1, Part 2 of the EPA Act and the Community Engagement Strategy and Community Participation Plan 2022-2024 (Community Participation Plan).

5. 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.

6. There are jurisdictional prerequisites that must be satisfied before the function to grant consent can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the provisions of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) which provides controls and standards for educational establishments including early childhood education. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note.

7. The Applicants are the owners of the Site. Works for the purpose of drainage of stormwater are proposed as well as a 1m wide drainage easement on adjoining land at 47 Wood Street, Riverstone, legally described as Lot 4 in DP 233845 and the owner of that adjoining land has provided written consent to those works and easement pursuant to s 23 of the Environmental Planning and Assessment Regulation 2021.

8. The Applicant relies on the assessment of the Proposed Development against the Blacktown Local Environmental Plan 2015 (BLEP) as set out in the Statement of Environmental Effects prepared by Miletic-Mieler Development Consultants Pty Ltd (Revision C) dated September 2024 (SEE).

9. The Site is zoned R2 Low Density Residential under the BLEP where Centre-based child care facilities are permitted with consent.

10. Demolition works as proposed are permissible with consent under cl 2.7 of the BLEP.

11. The Site is subject to a maximum height of buildings (HOB) development standard pursuant to cl 4.3 of the BLEP at 9 metres. Drawing No S01 Rev R-05 dated 17 June 2024 shows that the Proposed Development provides a maximum HOB of 5.17m complying with the HOB development standard.

12. There is no applicable maximum floor space ratio development standard for the Site under the BLEP.

13. Development consent must not be granted to a development unless the consent authority is satisfied that essential services as listed in cl 7.5 of the BLEP, are available or that adequate arrangements have been made to make them available when required. In that regard the parties explain as follows:

1. The Site currently contains existing residential dwellings in an established residential area which is currently serviced by water, electricity and sewage.

2. The Applicant relies on stormwater drainage plans and a drainage design response. The Proposed Development seeks to discharge stormwater through the rear of the Site, over 47 Woods Street, to drain to Woods Street. The adjoining owners have consented to a drainage easement.

3. A driveway is proposed off Elizabeth Street to provide vehicular access to the Site. The Traffic and Parking Impacts Report prepared by TEF Consulting dated 8 March 2024, and swept paths diagrams Dwg 24005/02 Rev A and Dwg 24005/01 Rev A both dated 16 June 2024 confirm that the driveway and parking arrangements are acceptable.

14. Further, the Agreed Conditions require the relevant certificates and approvals be obtained. Therefore, the Court is satisfied that the services that are essential for the Proposed Development will be available when required.

15. In the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) at s 4.6 a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

16. The Site has historical residential use with no known prior land uses and is located within an established residential locality. Based on historical records, there is no suggestion that the Site would have been contaminated. There are no immediate site conditions which would require remediation of the Site. As the Proposed Development is for a child care centre, the Applicant relies on a Stage 1 Preliminary & Stage 2 Detailed Site Investigation prepared by Sydney Environmental Group dated 21 April 2023 at Tab 11 of the Class 1 Application. Based on this assessment, the Site is considered suitable for the proposed development and the recommendations have been appropriately incorporated into the Conditions of consent.

17. The Site is located within the Hawkesbury-Nepean Catchment but not within close proximity of a natural waterbody. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) deals with water catchments and provides a number of jurisdictional prerequisites to be satisfied.

18. The matters in s 6.6(1) of the Biodiversity and Conservation SEPP have been considered by the Respondent through the requirements of Part J (Water Sensitive Urban Design and Integrated Water Cycle Management) of the Blacktown Development Control Plan 2015 (Blacktown DCP). Conditions of consent are proposed which require that all engineering works to be designed and undertaken in accordance with Part J of the Blacktown DCP (see conditions 2.5.1.1, 4.11.3 and 11.6.1.6).

19. Noting the proposed requirement for the post development to comply with the water quality standards in Part J of the Blacktown DCP, and noting that the Site is not located in close proximity of a natural waterbody, the Court is satisfied that any impact on the natural waterbody is neutral and the matters under cl 6.6(2) of the Biodiversity and Conservation SEPP are met.

20. 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. The SEE addresses the relevant considerations pursuant to s 3.23 of the Transport and Infrastructure SEPP at pages 15 to 17 and compliance with the Child Care Planning Guidelines at pages 17 to 26.

21. Section 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. The Proposed Development provides at least 3.25m² of unencumbered indoor play space and at least 7m² of unencumbered outdoor play space which is consistent 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 (s 3.26(2)(b), Transport and Infrastructure SEPP).

22. The Education and Care Services National Regulations 2011 provides extensive controls and requirements in addition to that of the Transport and Infrastructure SEPP, BLEP and Blacktown DCP and includes 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.

23. Compliance with the Education and Care Services National Regulations 2011 is assessed as part of the assessment against the Child Care Planning Guidelines in the SEE at pages 17 to 20.

24. The Proposed Development was notified in accordance with the Respondent’s Community Participation Plan between 20 June 2023 to 4 July 2023. Two submissions were made by way of objection raising the following matters:

1. Cumulative traffic congestion from surrounding 6 schools and approximately 20 childcare centres within 2km radius;

2. Inaccurate traffic report;

3. Traffic safety concerns;

4. Stormwater issues and potential overland flow to surrounding properties that cannot take additional absorption;

5. Uncharacteristic building design to the surrounding dwelling houses;

6. Asbestos removal during construction and safety measures to be put in place for pedestrians and surrounding properties;

7. Waste management concerns during construction phase;

8. Noise concerns during construction; and

9. Removal of trees is excessive and does not contribute to ecosystem preservation.

25. The Proposed Development has been amended 3 times since public notification on 26 April 2024, 30 August 2024, and 26 September 2024. Those amendments were not publicly renotified as the Respondent formed the view that the amendments to the development did not increase its environmental impacts, in accordance with s 23 of Schedule 1, Part 2 of the EPA Act and in accordance with the Community Participation Plan.

26. The Court can be satisfied that these issues raised by objectors, where appropriate, have been particularised in the SOFAC and have been adequately addressed in the amended development application and Agreed Conditions. In that regard, I note that the Traffic and Parking Impacts Report dated 8 March 2024, concludes at page 21 that “additional traffic generation will have no detrimental impacts on the existing road network operation nor on road safety.”

27. 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. I adopt the reasons given by the parties in accordance with this judgment.

28. 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:

29. 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-23-00599 to rely upon the following amended documents (Amended Development Application), as filed with the Court:

Drawing No and Revision		Title	Prepared by	Date
Stormwater Plans
1	Drawing No. 040523-01 Issue B	Title, Drawing List and Locality Plan	VNK Consulting Pty Ltd	4 April 2024
	Drawing No. 040523-02 Issue B	Stormwater Drainage Layout Plan -1		4 April 2024
	Drawing No. 040523-03 Issue B	Stormwater Drainage Layout Plan -2		4 April 2024
	Drawing No. 040523-04 Issue B	Stormwater Drainage Layout Plan -3		4 April 2024
	Drawing No. 040523-05 Issue B	Stormwater Drainage Layout Plan -4		4 April 2024
	Drawing No. 040523-06 Issue B	Sediment Erosion Control Plan		4 April 2024
Documents
2	Landowner’s consent - Lot 4 in DP233846		Kim Maree Petherick	17 September 2024
3	Statement of Environmental Effects (Rev C)		MMDC Pty Ltd	September 2024

Orders:

30. The Court orders:

1. The Appeal is upheld.

2. Development Application No DA-23-00599, as amended, for the demolition of existing dwellings and construction of a centre based child care facility for 68 children with associated car parking area, and tree removal on land legally described as Lot A and Lot B in Deposited Plan 388259 and known as 114 and 116 Elizabeth Street, Riverstone, NSW, 2765, is determined by the grant of development consent subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

**********

Annexure A

Architectural Plans

Decision last updated: 16 October 2024