Liu v Bayside Council

[2024] NSWLEC 1796

Land and Environment Court

New South Wales

Medium Neutral Citation:

Liu v Bayside Council [2024] NSWLEC 1796

Hearing dates:

Conciliation conference 6 December 2024

Date of orders:

11 December 2024

Decision date:

11 December 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application DA-2023/244 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3) Development Application DA-2023/244, as amended, for the demolition of all existing structures, removal of three (3) trees and the construction of a single storey centre-based child care facility operating 7am-6pm, Monday to Friday, with capacity for 114 children, 19 educator staff and three (3) additional staff with basement parking with 17 car parking spaces (11 staff spaces and 6 visitor spaces) and 15 bicycle parking spaces, landscaping and site works at 19-21 Barnsbury Grove, Bexley North, is determined by the grant of consent subject to the conditions of consent in Annexure A.

Catchwords:

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

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Bayside Local Environmental Plan 2021, cll 2.3, 2.7, 4.3, 4.4, 6.3, 6.11

Education and Care Services National Regulations

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.122, 3.22, 3.23

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

Category:

Principal judgment

Parties:

Angela Liu (First Applicant)
Qing Chen Liu (Second Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Marsdens (Respondent)

File Number(s):

2023/423265

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 2023/244 for the demolition of existing structures, tree removal and construction of a centre based child care facility with associated works (DA) at 19-21 Barnsbury Grove, Bexley North (Lot 10 in DP 1108902 and Lot F in DP 402246) (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 6 December 2024. I presided over the conciliation conference.

3. The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-2023/244 in accordance with the documents listed below (amended DA). The amendments are not minor and the parties agree to a costs order, as agreed or assessed.

1. Architectural Plans prepared by Dreamscape Architects dated 1 October 2024.

Plan No.	Revision	Plan Title
A-000	9	Cover Page
A-100	9	Site Plan
A-103	9	Demolition Plan
A-104	9	Cut & Fit Plan
A-105	9	Site Management Plan
A-106	9	Waste Management Plan
A-107	9	Excavation Plan Ground
A-108	9	Excavation Plan Basement
A-201	9	Basement Plan
A-202	9	Ground Floor Plan
A-203	9	Roof Plan
A-310	9	Elevations Plan
A-311	9	Elevations – Fence
A-410	9	Sections Plan
A-500	9	Window & Door Schedule
A-501	9	Curtain Wall Schedule
A-510	9	Finish Schedule
A-520	9	Area Plan
A-530	9	Street Analysis
A-610	9	Kitchen Details
A-620	9	Toilet Detail
A-621	9	Toilet Detail 2
A-622	9	Toilet Detail 3

2. Landscape Plans prepared by Geoscapes Landscape Architects dated 18 July 2024.

Plan No.	Revision	Plan Title
LDA-01	H	Landscape Masterplan
LDA-02	H	Landscape Detail Plan
LDA-03	H	Specification Notes & Standard Details
LDA-04	H	Planting Schedule & Imagery
LDA-05	H	Landscape Unencumbered Play Diagram
LDA-06	H	Landscape Shaded Unencumbered Play Diagram

3. Stormwater Management Plan prepared by Martens & Associates Pty Ltd.

Plan No.	Rev	Plan Title	Date
PS01-A000	G	Cover Sheet	18-07-2024
PS01-A050	F	Overview Plan	18-07-2024
PS01-B300	F	Sediment & Erosion Control Plan	18-07-2024
PS01-B310	B	Sediment & Erosion Control Details	11-08-2024
PS01-E100	G	Drainage Plan Ground Floor	18-07-2024
PS01-E101	D	Drainage Plan Basement	18-07-2024
PS01-E200	G	Drainage Details (Sheet 1)	18-07-2024
PS01-E201	A	Drainage Details (Sheet 2)	11-08-2024
PS01-E202	A	Drainage Details (Sheet 3)	04-06-2024
PS01-E203	A	Drainage Details (Sheet 4)	04-06-2024
PS01-E600	D	Drains Catchment Plan, Layout and Results	17-07-2024
PS01-E700	D	Music Catchment Plan, Layout and Results	17-07-2024

4. Environmental Noise Impact Assessment Report (No. 7791-1.1R) (Rev D) prepared by Day Design Pty Ltd dated 3 September 2024

5. Plan of Management prepared by GAT & Associates Pty Ltd dated September 2024

6. Traffic and Parking Impact Assessment (Ref: 240100.01FB) (Rev B) prepared by McLaren Traffic Engineering & Road Safety Consultants dated 9 September 2024.

7. Remediation Action Plan Report No. E26335.E06) (Rev 1) prepared by EI Australia dated 31 May 2024.

4. As part of the conciliation conference process the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent under s 4.16 of the EPA Act.

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

Jurisdictional Prerequisites

6. 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.

7. The DA was lodged to the Respondent on 1 September 2023. I am satisfied that owners consent accompanied the DA as provided in the class 1 application (tab 3). The Respondent notified the DA between 20 September 2023 to 4 October 2023. Eight submissions were received.

8. As the parties have entered into an agreement, the Court’s role is limited in considering the issues raised. I accept the advice of the parties that the concerns raised have been considered in the amended DA.

Bayside Local Environmental Plan 2021 (BLEP)

9. I accept the parties’ agreement that the following preconditions have been met.

1. The subject site is zoned R2 Low Density Residential, where the proposed development for a centre based child care centre is permissible with consent.

2. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 demolition applies, which is sought in the amended DA.

3. Clause 4.3 height of buildings applies which allows a maximum height of 8.5m. The amended architectural plans prepared by Dreamscape Architects dated 1 October 2024 (architectural plans) show that the amended DA is below the height limit.

4. Clause 4.4 floor space ratio (FSR) applies and allows a maximum of 0.5:1. The amended DA is below 0.5:1 as shown on the architectural plans (A202).

5. Clause 6.3 earthworks applies as the amended DA proposes earthworks. On the basis of the jurisdictional statement at paragraphs 17, the architectural plans and the Preliminary Geotechnical Assessment prepared by Martens dated August 2023, I accept the parties’ agreement that the provisions have been satisfied.

6. Clause 6.11 essential services applies. I accept that the services are currently available or will be available as set out in paragraph 18 of the jurisdictional statement and shown on the architectural plans.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)

10. The provisions of s 4.6 of SEPP RH apply to the site in relation to contamination. The amended DA is accompanied by a Preliminary Site Investigation Report, Detailed Site Investigation report and Remediation Action Plan (RAP) prepared by EI Australia. The parties agree that the RAP finds that the site can be made suitable for the proposed use subject to recommendations. These recommendations have been included as part of condition 1. I accept the parties’ agreement that the s 4.6 has been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021

11. Though raised as an issue, the parties agree that the proposed development is not traffic generating development pursuant to s 2.122 as set out in paragraphs 24-25 of the jurisdictional statement, including that a child care centre is not an educational establishment.

12. Chapter 3 Educational establishments and childcare facilities of SEPP TI applies to the proposed development.

13. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 of SEPP TI. Based on the architectural plans, landscape plans and agreed submissions from the parties, I have considered the provisions of ss 3.22, 3.23, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

Conclusion

14. 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.

15. 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.

16. 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.

Orders

17. The Court orders:

1. The appeal is upheld.

2. The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of DA-2023/244 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. DA-2023/244, as amended, for the demolition of all existing structures, removal of three (3) trees and the construction of a single storey centre-based child care facility operating 7am-6pm, Monday to Friday, with capacity for 114 children, 19 educator staff and three (3) additional staff with basement parking with 17 car parking spaces (11 staff spaces and 6 visitor spaces) and 15 bicycle parking spaces, landscaping and site works at 19-21 Barnsbury Grove, Bexley North, is determined by the grant of 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: 11 December 2024