Levuka Developments Pty Ltd v Fairfield City Council

[2025] NSWLEC 1380

Land and Environment Court

New South Wales

Medium Neutral Citation:

Levuka Developments Pty Ltd v Fairfield City Council [2025] NSWLEC 1380

Hearing dates:

Conciliation conference on 31 March and 20 May 2025

Date of orders:

28 May 2025

Decision date:

28 May 2025

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the respondent consent authority, agreed in the sum of $20,000 to be paid within 28 days of orders being made.

(2)   The applicant is granted leave to amend the development application in accordance with the plans and documents listed at [34(1)].

(3)   The appeal is upheld.

(4)   Development consent is granted to Development Application No DA 216.1/2024 (as amended) for the demolition of existing structures, tree removal and construction of a 2-storey centre-based childcare facility for 126 children over a basement on land legally described as Lot 23 and 24 in Deposited Plan 7111 and known as 8-10 Levuka Street, Cabramatta, subject to the conditions at Annexure A.

Catchwords:

APPEAL – development application – centre-based childcare facility – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environmental Court Act 1979, s 34

Education and Care Services National Regulations, cll 107, 108

Environmental Planning and Assessment Regulation, s 38

Fairfield Local Environmental Plan 2013 cll 2.3, 2.7, 4.3, 4.4, 6.2, 6.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, cll 3.23, 3.26

Texts Cited:

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

Fairfield City Council Community Engagement Strategy 2020

Category:

Principal judgment

Parties:

Levuka Developments Pty Ltd (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
A Johnson (Solicitor)(Applicant)
A Seton (Solicitor)(Respondent)

Solicitors:
Miller Prince (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/00365599

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 against Fairfield City Council’s (Council) deemed refusal of development application DA 216.1/2024 (DA), which sought consent for the demolition of existing structures, tree removal and construction of a 2-storey centre-based childcare facility for 126 children over a basement at 8 – 10 Levuka Street, Cabramatta (Site).

2. The DA was notified in accordance with Fairfield City Council’s Community Engagement Strategy 2020 (the Strategy) between 11 September 2024 and 25 September 2024. No submissions were received during the notification period.

3. 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 first held on 31 March 2025. I presided over the conciliation conferences.

4. During the conciliation conference the applicant tabled amended plans and additional documents in response to the Council’s Statement of Facts and Contentions (SOFAC) (Amended DA). In accordance with the Strategy the Amended DA was not renotified.

5. The parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s 34 written agreement dated 21 May 2025 (Agreement).

6. 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 decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant consent to the DA.

7. The pre-conditions that must be satisfied before the Court can exercise its functions are identified in a written submission by the parties.

8. After a consideration of the submission 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 for the following reasons.

Preconditions

Fairfield Local Environmental Plan 2013

9. The Fairfield Local Environmental Plan 2013 (FLEP 2013) is the relevant local environmental planning instrument that applies to the site.

10. Compliance with the FLEP 2013 is addressed generally in the Statement of Environmental Effects prepared by George Nehme of Pivotal Planning Pty Ltd dated July 2024 (SEE) but specific provisions are addressed below.

11. Demolition works are permissible with consent under cl 2.7 of the FLEP 2013.

12. The site is zoned R3 Medium Density Residential under the FLEP 2013. The DA for a centre based child care facility is permissible with consent in the R3 Medium Density Residential Zone.

13. Clause 2.3 of the FLEP 2013 requires the consent authority to have regard to the objectives of the respective zones for the development. The objectives for the R3 Medium Density Residential Zone are as follows:

1   Objectives of 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.

14. To the extent that the zone objectives are relevant, the Amended DA is consistent with the objectives of the R3 Medium Density Residential Zone. An assessment against the R3 Medium Density Residential objectives is set out in the SEE on p 26.

15. Clause 4.3 (Height of buildings) prescribes a maximum permitted height of 9 metres for the site under the FLEP 2013. The maximum height of the proposed building is 8.9m and therefore the proposed building height complies with cl 4.3 of the FLEP 2013.

16. Clause 4.4 (Floor Space Ratio) applies to the site. The site is identified as edged black on the Floor Space Ratio Map and thus, cl 4.4 of the FLEP 2013 prescribes a maximum floor space ratio of 0.45:1 or 910.8m². The total gross floor area of the proposed development under the Amended DA is 0.37:1 or 749m². Therefore, the Amended DA proposes a complaint floor space ratio.

17. Clause 6.2 (Earthworks) of the FLEP 2013 applies to the site as earthworks are proposed.

1. The Court is satisfied that the matters arising under cl 6.2 have been considered. The extent of the earthworks proposed by the DA relate to the excavation for the basement and is shown on the Architectural Plans and Engineering Plans listed at [36(1)].

2. Drainage and soil stability can be managed in accordance with the stormwater design pursuant to the Amended Stormwater Plans listed in [36(1)].

3. The proposed excavation is consistent with the site’s context and is in accordance with the Council’s current and proposed planning strategies. The Geotechnical Report prepared by GEOID Geotechnical Engineering dated 27 May 2024 behind Tab 13 of the Class 1 Application provides details of the subsurface and ground condition and recommendations for excavation and construction of the basement. The destination of any excavated material is to be in accordance with the conditions of consent.

4. It is considered unlikely that excavation will lead to the disturbance of relics as the site is not known to be situated within an area of archaeological significance, and the earthworks are unlikely to impact on any watercourse, drinking water catchment or environmentally sensitive areas due to the location of the site.

18. Therefore, the Court is satisfied that the earthworks proposed in the DA will not have a detrimental impact on existing drainage patterns and soil stability in the locality of the development, likely future use or redevelopment of the land, neighbouring amenity or uses, cultural or heritage items or features of the surrounding land in accordance with cl 6.2 of the FLEP 2013.

19. Clause 6.9 (Essential Services) of the FLEP 2013.

1. The site is located in an urban area and comprises of two lots within existing dwellings serviced with electricity, telecommunications and sewerage services.

2. The stormwater drainage design for the proposed development is detailed on the amended Stormwater Plans which is listed at [36(1)]. The proposed development will have vehicular access as shown on the amended Architectural Plans which is listed at [36(1)] and the Traffic Report at Tab 8 of the Class 1 Application.

20. Therefore, the Court is satisfied that services that are essential for the development are available or that adequate arrangements have been made to make them available when required in accordance with cl 6.9 of the FLEP 2013.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. Chapter 4 (Remediation of Land) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) also applies to the site. Section 4.6 requires that 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.

22. The DA was accompanied by a Detailed Site Investigation Report (DSI) prepared by Kannan Kaliappan of K2 Consulting Group dated 19 July 2024 (See Tab 12 of the Class 1 Application) which confirms that the site is considered suitable for proposed redevelopment and sensitive land use provided that the following recommendations in the DSI are implemented including an unexpected finds policy. The DA was also accompanied by a Hazardous Materials Survey prepared by K2 Consulting Group dated 30 May 2024 (behind Tab 14 of the Class 1 Application) which makes recommendations in relation to the removal of asbestos.

23. Conditions 1 (approval of the DSI), 42 and 42A ensure that the above recommendations of the DSI and Hazardous Materials Survey are implemented.

24. Therefore, the Court is satisfied that the DA has met the standards of s 4.6 of the Resilience and Hazard SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

25. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) contains provisions relating to development within regulated catchments. Chapter 6 applies to the site as it is located in the Sydney Harbour Catchment.

26. Part 6.2 of Ch 6 provides controls for the DA. The matters for consideration under Pt 6.2 have been addressed in the following reports which accompany the Amended DA:

1. SEE prepared by George Nehme of Pivotal Planning Pty Ltd;

2. Stormwater Management plans prepared by Civil Stormwater Engineering Group, dated 16 July 2024; and

3. Geotechnical Investigation Report prepared by Geoid Engineering Pty Ltd, dated 28 May 2024.

27. I am satisfied that the controls of Pt 6.2 have been met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

28. Chapter 3 Educational establishments and childcare facilities of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the proposed development.

29. Section 3.23 of the Transport and Infrastructure SEPP requires a consent authority to consider the Child Care Planning Guideline (the Guideline) when determining a development application.

30. The matters for consideration under the Child Care Planning Guideline have been addressed in the SEE which includes a table at p 9 demonstrating how the Amended DA complies with the Guideline.

31. Section 3.26 of the Transport and Infrastructure SEPP sets out non-discretionary development standards for the purpose of s 4.15 of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. The proposed development provides a total of 432m² of unencumbered indoor play space and 884m² of unencumbered outdoor play space which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Services National Regulations (cll 107 and 108) , which requires a minimum of 3.25m² per child of unencumbered indoor play space and 7m² per child of unencumbered outdoor play space.

32. The matters for consideration under the Guideline have been addressed in the SEE prepared George Nehme of Pivotal Planning Pty Ltd which includes a table at pp 11 - 22 demonstrating how the Amended DA complies with the Guideline.

33. Accordingly, I am satisfied the provisions of Ch 3 of the Transport and Infrastructure SEPP have been met.

Conclusion and orders

34. As the parties’ decision is within power, I now dispose of the proceedings in accordance with that decision.

35. 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.

36. The Court notes that:

1. The Council, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA 216.1/2024 in accordance with the following amended plans (Amended Development Application):

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1.	Drawing No. DA-0101, Revision F	Cover Sheet	Zed Architects	11 April 2025
	Drawing No. DA-0201, Revision F	Site Location & Analysis
	Drawing No. DA-0202, Revision F	Site Plan
	Drawing No. DA-0203, Revision F	Demolition Plan
	Drawing No. DA-0301, Revision F	Basement 01
	Drawing No. DA-0302, Revision F	Ground Floor Plan
	Drawing No. DA-0303, Revision F	Level 01
	Drawing No. DA-0304, Revision F	Roof Plan
	Drawing No. DA-0401, Revision F	Elevations
	Drawing No. DA-0402, Revision F	Streetscape & Signage
	Drawing No. DA-0501, Revision F	Sections
	Drawing No. DA-0502, Revision F	Det. Sec & Internal 3D
	Drawing No. DA-0601, Revision F	GFA Diagrams
	Drawing No. DA-0602, Revision F	Unencumbered Area
	Drawing No. DA-0603, Revision F	Deep Soil & Landscape Area
	Drawing No. DA-0604, Revision F	2D Solar Access Diagrams
	Drawing No. DA-0605, Revision F	Solar to Indoor Play Area
	Drawing No. DA-0606, Revision F	Storage Calculation
	Drawing No. DA-0607, Revision F	Natural Ventilation Diagram
	Drawing No. DA-0701, Revision F	Finishes Schedule
	Drawing No. DA-0901, Revision F	Wet Area Details 1
	Drawing No. DA-0902, Revision F	Wet Area Details 2
Landscape Plans
2.	Drawing No. 1/6, Revision D	Cover Sheet	Artscience Landscapes	16 April 2025
	Drawing No. 2/6, Revision D	Landscape Plan – Ground Floor
	Drawing No. 3/6, Revision D	Landscape Plan – Level 01
	Drawing No. 4/6, Revision D	Plants Palette
	Drawing No. 5/6, Revision D	Materials Palette
	Drawing No. 6/6, Revision D	Specifications and Details
Engineering Plans
3.	Drawing No. SW-100, Revision 04	Cover Page	Civil Stormwater Engineering Group	12 April 2025
	Drawing No. SW-101, Revision 04	General Notes
	Drawing No. SW-200, Revision 04	Stormwater Design – Basement Plan
	Drawing No. SW-201, Revision 04	Stormwater Design – Ground Floor Plan
	Drawing No. SW-300, Revision 04	Sediment & Erosion Control Plan
	Drawing No. SW-400, Revision 04	OSD Detailed Section & Calculation Sheet
	Drawing No. SW-500, Revision 04	Standard Details
	Drawing No. SW-600, Revision 04	Cut and Fill Diagram
	Drawing No. ST1, Revision 04	Basement Piling Design
	Drawing No. ST2, Revision 04	Piling Detailed Sections
Reports
4.	Acoustic Assessment		Acoustic Dynamics	29 April 2025
5.	Childcare Letter of Response V8		Ology Pty Ltd	April 2025
6.	Plan of Management		Ology Pty Ltd	April 2025
7.	Revised Traffic and Parking Assessment Report		Varga Traffic Planning Pty Ltd	10 April 2025
8.	Arboricultural Impact Assessment and Tree Management Plan		Horticultural Management Services	13 December 2024
9.	Waste Management Plan		Dickens Solutions Pty Ltd	22 January 2025
10.	BCA Capability Report		Incode Solutions Pty Ltd	30 December 2024

37. The Court orders that:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent consent authority, agreed in the sum of $20,000 to be paid within 28 days of orders being made.

2. The applicant is granted leave to amend the development application in accordance with the plans and documents listed at [36(1)].

3. The appeal is upheld.

4. Development consent is granted to Development Application No DA 216.1/2024 (as amended) for the demolition of existing structures, tree removal and construction of a 2-storey centre-based childcare facility for 126 children over a basement on land legally described as Lot 23 and 24 in Deposited Plan 7111 and known as 8-10 Levuka Street, Cabramatta, subject to the conditions at Annexure A.

S Dixon

Senior Commissioner of the Court

**********

Annexure A

Decision last updated: 28 May 2025