Little Endeavours Early Learning Centre Pty Ltd v Georges River Council

[2021] NSWLEC 1778

Land and Environment Court

New South Wales

Medium Neutral Citation:

Little Endeavours Early Learning Centre Pty Ltd v Georges River Council [2021] NSWLEC 1778

Hearing dates:

6 December 2021, conciliation conference on 7 December 2021

Date of orders:

20 December 2021

Decision date:

20 December 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA/2020/0554 for alterations and additions to an existing centre-based child care facility involving minor demolition and the construction of a new external stair, first floor outdoor play area and interior renovations is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – alterations and additions to existing child care facility – conciliation conference – agreement reached – orders made

Legislation Cited:

Education and Care Services National Regulations, regs 107 and 108

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 and 8.10

Environmental Planning and Assessment Regulation 2000, cl 55

Georges River Local Environmental Plan 2021

Kogarah Local Environmental Plan 2012

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy – Educational Establishments and Child Care Facilities 2017, cl 22

State Environmental Planning Policy No 55— Remediation of Land, cl 7

Texts Cited:

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

Category:

Principal judgment

Parties:

Little Endeavours Early Learning Centre Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
R White (Applicant)
L Nurpuri (Respondent)

Solicitors:
Mills Oakley (Applicant)
Georges River Council (Respondent)

File Number(s):

21/153352

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) for alterations and additions to an existing centre-based child care facility in Sans Souci.

2. The land to which the DA relates is described as Lot 2 DP 373820 and is known as 17 Endeavour St Sans Souci (the Site).

3. The DA seeks development consent to carry out development (the Proposed Development) to increase the maximum number of children at the child care facility from 47 to 67, to extend the existing first floor towards the rear, to make internal alterations and the external addition of a stairwell between ground and first floor level. These alterations will result in indoor and outdoor play areas being available at both ground and first floor levels.

4. The existing child care facility was granted development consent by the Georges River Council Independent Hearing and Assessment Panel on 25 August 2016. The existing facility has places for up to 47 children with indoor and outdoor play areas at ground level and offices and ancillary uses at the first floor level.

5. The DA was lodged with the Georges River Council (Council) on 19 January 2021. When the DA had not been determined by the Council within the period after which a development application is taken to have been refused, on 28 May 2021 the Applicant appealed to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

6. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

7. The appeal was listed for hearing for two days commencing on 6 December 2021. After hearing oral evidence from one of the residents who had lodged an objection to the DA with the Council, the Applicant indicated that the joint expert reports had resolved many of the issues in the appeal and sought a short adjournment to enable the parties to try to resolve the remaining outstanding issues. The parties subsequently informed the Court that they had reached agreement in principle on the resolution of the appeal and, at the parties’ request, the hearing was adjourned and the matter was listed for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference, which took place on 7 December 2021. At the conciliation conference an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was filed with the Court on 15 December 2021 and is supported by a Jurisdictional Statement sent to the Court on 6 December 2021 which sets out the basis for the agreement and the jurisdictional prerequisites for the grant of development consent. The agreement involves the Court granting development consent to the DA subject to conditions pursuant to s 4.16(1) of the EPA Act.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons:

1. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act.

2. The Georges River Local Environmental Plan 2021 (GRLEP), which came into force on 8 October 2021, applies to the Site. The GRLEP contains a savings provision in cl 1.8A which provides that, if a development application had been made before the commencement of the GRLEP in relation to land to which the GRLEP applies and the application had not been finally determined before that commencement, the application must be determined as if the GRLEP had not commenced.

3. The DA was made on 19 January 2021, prior to the commencement of the GRLEP and had not been finally determined on 8 October 2021 when the GRLEP commenced. In accordance with cl 1.8A of the GRLEP the DA must therefore be determined as if the GRLEP had not commenced.

4. Immediately prior to the commencement of the GRLEP, the Site was within Zone R2 Low Density Residential under the Kogarah Local Environmental Plan 2012 (KLEP). Development for the purposes of a centre-based child care facility is permissible with development consent on land within that zone.

5. Clause 2.3(2) of the KLEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. In determining the DA, I have had regard to the objectives of the R2 Low Density Residential zone in the KLEP. One of the zone objectives is to enable land uses that provide facilities or services to meet the day to day needs of residents and the Proposed Development is compatible with that objective.

6. The KLEP sets height and floor space ratio development standards (cl 4.3 and cl 4.4). The Proposed Development does not propose any change to the height or gross floor area of the existing child care facility and complies with the applicable development standards. The maximum height for buildings on the Site is 9m and the height of the existing building is 7.61m. The maximum floor space ratio for buildings on the Site is 0.55:1 and the floor space ratio of the existing building is 0.44:1.

7. Part 3 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP) applies to the Proposed Development. Clause 22 of the Child Care SEPP provides that development consent must not be granted to development for the purpose of a centre-based child care facility, except with the concurrence of the Regulatory Authority, if:

1. the floor area of the building or place does not comply with reg 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations (the Care Services Regulations), or

2. the outdoor space requirements for the building or place do not comply with reg 108 (outdoor unencumbered space requirements) of the Care Services Regulations.

8. Reg 107 of the Care Services Regulations requires that, for each child being educated and cared for, a child care facility must have at least 3.25m² of unencumbered indoor space.

9. Reg 108 of the Care Services Regulations requires that, for each child being educated and cared for, a child care facility must have at least 7m² of unencumbered outdoor space.

10. The parties agree, and I accept, that there will be 228.85m² of unencumbered indoor space for children at the child care facility. There will be a maximum of 67 children attending the child care facility so the minimum area required is 217.75m² (3.25m² x 67) and the Proposed Development complies with this requirement.

11. The parties also agree, and I accept, that there will be 471.55m² of unencumbered outdoor space for children at the child care facility. For the maximum of 67 children attending the facility the minimum area required is 469m² (7m² x 67) and the Proposed Development complies with this requirement.

12. I am therefore satisfied that the Proposed Development satisfies the requirements of regs 107 and 108 and consequently that the concurrence of the Regulatory Authority is not required.

13. Clause 23 of the Child Care SEPP provides that, before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the Proposed Development. The Statement of Environmental Effects which accompanies the DA sets out in Annexure B a detailed assessment of the compliance of the DA with that guideline and I have taken that into consideration in the determination of the DA.

14. The State Environmental Planning Policy No 55—Remediation of Land applies to the Site. The Site is already approved for use as a child care facility and the Statement of Environmental Effects which accompanies the DA states that the Site had been used for residential purposes for many years prior to the commencement of its use as a child care facility. In those circumstances I am satisfied that the Site is unlikely to be contaminated.

15. The Council’s Statement of Facts and Contentions indicates that the DA was publicly notified by the Council between 4 February and 4 March 2021. Nine submissions were received. The submissions raised concerns about noise, traffic congestion and safety, parking and visual amenity. The Council provided the Court with a bundle of documents which included copies of the submissions. The Court also heard oral evidence from one of the objectors at the commencement of the hearing. I accept the parties’ agreed position that the amended DA and conditions of consent satisfactorily address the issues raised by the objector to the extent that this is possible and reasonable.

10. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

11. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was 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.

12. The Court notes that:

1. The Applicant has amended the development application with the consent of the Respondent Council.

2. The Applicant has uploaded the amended application to the NSW planning portal on 7 December 2021.

3. The Applicant filed the amended application with the Court on 7 December 2021.

13. The Court orders that:

1. The appeal is upheld.

2. Development application DA/2020/0554 for alterations and additions to an existing centre-based child care facility involving minor demolition and the construction of a new external stair, first floor outdoor play area and interior renovations is determined by the grant of consent subject to the conditions set out in Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (416362, pdf)

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Decision last updated: 20 December 2021