LCN Group Pty Ltd v Liverpool City Council

[2023] NSWLEC 1505

Land and Environment Court

New South Wales

Medium Neutral Citation:

LCN Group Pty Ltd v Liverpool City Council [2023] NSWLEC 1505

Hearing dates:

Conciliation conferences on 27 June, 9 August and 16 August 2023

Date of orders:

06 September 2023

Decision date:

06 September 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, as agreed or assessed.

(2) The appeal is upheld.

(3) Development Application No. DA/1127/2021, as amended, for the demolition of all existing buildings and construction of a 100 place child care centre including basement parking at Lots 47 and 48 in DP215696 and known as 83 Hill Road and 115 Wonga Road Lurnea, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

Catchwords:

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

Legislation Cited:

Education and Care Services National Regulation 2011, rr 107, 108

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

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008 cll 2.3, 4.3, 4.4, 7.31

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 22,23, 25

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Schedule 9

Texts Cited:

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

Category:

Principal judgment

Parties:

LCN Group Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
A Guy (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/117216

Publication restriction:

Nil

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/1127/2021 for the demolition of all existing buildings and construction of a 100 place child care centre including basement parking (proposed development) at 83 Hill Road and 115 Wonga Road Lurnea, legally described as Lots 47 and 48 in DP215696 (the subject site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 June 2023. I have presided over the conciliation conference.

3. Further information and amended plans were filed with the Court on 25 August 2023. The Respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application No DA/1127/2021 in accordance with the documents listed at [26] (amended application). The key amendments are:

• Building changes to level 1, including increased setbacks to the north and west;

• Minor changes to the basement layout;

• Changes to the façade design, fencing and materials;

• Increased deep soil areas, landscape changes and reconfigured outdoor play areas;

• Further information and related changes regarding stormwater, acoustics, access and waste management; and

• Various internal and external modifications

4. 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 for the amended application and granting development consent to the amended application subject to conditions of consent.

5. I note that as part of the filed s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

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

Jurisdictional Prerequisites

8. 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. 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, as set out below.

9. I am satisfied that owners consent accompanied the development application.

10. The subject site is zoned R3 Medium Density Residential pursuant to the Liverpool Local Environmental Plan 2008 (LLEP), where the proposed development is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone:

• 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 provide for a concentration of housing with access to services and facilities.

• To provide for a suitable visual transition between high density residential areas and lower density areas.

• To ensure that a high level of residential amenity is achieved and maintained.

11. Clause 4.3 Height of buildings of the LLEP applies, which allows a maximum height of 8.5m. The parties agree and I am satisfied on the basis of the Addendum Statement of Environmental Effects prepared by Think Planners dated 17 July 2023 and the Architectural Plans prepared by AR Design dated 17 July 2023, that the amended development application is less than 8.5m in height.

12. Clause 4.4 Floor Space Ratio of the LLEP applies, which allows a maximum FSR of 0.5:1. The parties agree, and I am satisfied on the basis of the Addendum Statement of Environmental Effects prepared by Think Planners dated 17 July 2023 and the Architectural Plans prepared by AR Design dated 17 July 2023 that the amended development application complies with the FSR, at 0.49:1.

13. Clause 7.31 Earthworks of the LLEP applies to the proposed development. I have considered the provisions of cl 7.31, the Statement of Environmental Effects prepared by BMA Urban dated 18 May 2021, the Stormwater Engineering Plans in Annexure A and the conditions of consent. I agree with the parties that the requirements of cl 7.31 Earthworks have been met.

14. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Chapters 2 and 6 apply.

15. Chapter 2 of SEPP BC aims to protect the biodiversity values of trees and vegetation and preserve the amenity through preservation in non-rural areas. The amended application is supported by an Arboricultural Impact Assessment report prepared by Tree Power dated 18 July 2023, which details the removal of two trees and small shrubs and protective measures for the other remaining trees. I have considered the provisions of Chapter 2 and agree with the parties that the provisions have been addressed.

16. Chapter 6 of SEPP BC applies as the subject site is within the Georges River Catchment. I have considered the provisions of Part 6.2 and the Addendum Statement of Environmental Effects prepared by Think Planners dated 17 July 2023, the Preliminary Site Investigation dated 23 February 2021 and Review of Preliminary Site Investigation 13 April 2022 both prepared by EI Australia, and the Stormwater Engineering Plans in Annexure A. I accept the evidence of the parties that the requirements have been addressed.

17. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Education SEPP) applies to the proposed development, in accordance with the savings provisions within Sch 9 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI).

18. The parties agree that the proposal complies with the indoor unencumbered space requirements and outdoor space requirements as required by cll 22 and 25 of the Education SEPP and the requirements of the Education and Care Services National Regulations 2011 (Education Regulation). I have considered the Addendum Statement of Environmental Effects prepared by Think Planners dated 17 July 2023 and the Architectural Plans prepared by AR Design dated 17 July 2023 and am satisfied that the provisions have been met. In particular, with respect to compliance with rr 107 and 108 of the Education Regulation, as the amended application provides 3.35m² of unencumbered indoor play area per child and 7.07m² of unencumbered outdoor play area per child.

19. In accordance with cl 23 of the Education SEPP and Sch 9, cl 1(2) of SEPP TI, I have considered the provisions of the National Quality Framework Assessment Checklist within the Department of Planning, Industry and Environment Child Care Planning Guideline 2021 and the amended application’s detailed compliance within the Addendum Statement of Environmental Effects prepared by Think Planners dated 17 July 2023.

20. Accordingly, the parties agree, and I consider that the amended application meets the requirements of the Education SEPP and SEPP TI.

21. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The proposed development is accompanied by a Preliminary Site Investigation dated 23 February 2021 and the Review of Preliminary Site Investigation letter dated 13 April 2022, both prepared by EI Australia, stating that the subject site has a history of residential use and the risk of contamination is low. Accordingly, the parties agree, and I am satisfied that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

22. The Respondent notified the development application between 1 April 2022 to 20 April 2022 and the amended application between 16 July 2023 to 9 August 2023. One submission was received during each of those periods, which has been considered by the consent authority.

Conclusion

23. 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.

24. 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.

25. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

26. The Court notes that the Respondent has agreed, as the relevant consent authority, under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application No. DA/1127/2021 to rely upon the following amended plans and documents:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No. 100 Revision 16	Cover	AR Design	17 July 2023
	Drawing No. 101 Revision 16	Response to Issues + Detailed Perspectives		17 July 2023
	Drawing No. 102 Revision 16	Site + Ground Floor Plan		17 July 2023
	Drawing No. 103 Revision 16	Upper Floor Plan		17 July 2023
	Drawing No. 104 Revision 16	Basement Floor Plan		17 July 2023
	Drawing No. 105 Revision 16	Elevations		17 July 2023
	Drawing No. 106 Revision 16	Roof Plan		17 July 2023
	Drawing No. 107 Revision 16	Section + Schedule of Finishes		17 July 2023
	Drawing No. 108 Revision 16	Shadow Analysis		17 July 2023
	Drawing No. 109 Revision 16	Unencumbered Space Plan		17 July 2023
	Drawing No. 110 Revision 16	Perspectives		17 July 2023
	Drawing No. 111 Revision 16	Demolition + Construction Waste Management Plan		17 July 2023
Landscape Plans
2	Drawing No. 21-4382 LO1 Revision D	Landscape Plan	Zenith Landscape Designs	3 July 2023
	Drawing No. 21-4382 LO2 Revision D	Landscape Plan		3 July 2023
Engineering Plans
3	Drawing No. ZP-441 SW01 Sheet 1 of 5 Revision F	Stormwater Plan	ZETA Engineering Pty Ltd	17 July 2023
	Drawing No. ZP-441 SW01 Sheet 2 of 5 Revision F	Stormwater Biofilter Sections & Pictures		17 July 2023
	Drawing No. ZP-441 SW01 Sheet 3 of 5 Revision F	Stormwater – Basement Floor Plan		17 July 2023
	Drawing No. ZP-441 SW01 Sheet 4 of 5 Revision F	Catchments Breakdown & DRAINS & MUSIC Models		17 July 2023
	Drawing No. ZP-441 SW01 Sheet 5 of 5 Revision F	Calculations & Hydraulic Grade Line		17 July 2023
Reports / documents
4	Addendum Statement of Environmental Effects		Think Planners	17 July 2023
5	Plan of Management, Version 2		17 July 2023
6	Acoustical Report		Koikas Acoustics Pty Ltd	25 July 2023
7	Access Report		Design Right Consulting	17 July 2023
8	National Construction Code Report		Design Right Consulting	17 July 2023
9	Arboricultural Impact Assessment, Version III		Tree Power	18 July 2023
10	Amended Waste Management Plan		Dickens Solutions	July 2023
11	Swept Paths

27. The Applicant filed the amended application and final s 34 agreement with the Court on 25 August 2023.

Orders:

28. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, as agreed or assessed.

2. The appeal is upheld.

3. Development Application No. DA/1127/2021, as amended, for the demolition of all existing buildings and construction of a 100 place child care centre including basement parking at Lots 47 and 48 in DP215696 and known as 83 Hill Road and 115 Wonga Road Lurnea, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

Annexure A

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Decision last updated: 06 September 2023