Luxland Tallawong Pty Ltd v Blacktown City Council

Case •

[2022] NSWLEC 1358

•

07 July 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Luxland Tallawong Pty Ltd v Blacktown City Council [2022] NSWLEC 1358
Hearing dates: Conciliation conference on 21 March, 4 and 13 April, 3 and 13 May, 2, 7, 28 and 30 June 2022
Date of orders: 07 July 2022
Decision date: 07 July 2022
Jurisdiction:Class 1
Before: Espinosa C
Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in a sum to be agreed or assessed.

(2) The appeal is upheld.

(3) Development Consent is granted to Development Application DA-21-01536 for the Construction of a single storey, 93 place childcare centre with basement car parking, retaining walls, fencing and associated landscaping at Lot 36 DP 1239464, Sweet Street, Rouse Hill, subject to the conditions of consent 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

Interpretation Act 1987, ss 5, 30A

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy Amendment (Precincts) 2021

State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017

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

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

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

State Environmental Planning Policy (Transport and Infrastructure) 2021

Texts Cited:

Blacktown City Council Growth Centre Precincts Development Control Plan 2010

Blacktown City Council, Community Participation Plan2019

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

Category:Principal judgment
Parties: Luxland Tallawong Pty Ltd ACN 645437565 (Applicant)
Blacktown City Council (Respondent)
Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
K Law (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Matthews Folbigg Lawyers (Respondent)
File Number(s): 2021/322117
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 Development Application DA-21-01536 seeking consent for Construction of a single storey, 97 place childcare centre with basement carparking, retaining walls, fencing and associated landscaping (the Proposed Development) at Lot 36 DP 1239464, Sweet Street, Rouse Hill (the Site).

  2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 21 March, 4 and 13 April, 3 and 13 May, 2, 7, 28 and 30 June 2022. I have 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions as set out in the s34 Agreement filed on 1 July 2022.

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

  5. 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 to be contained in a number of provisions in relevant State Environmental Planning policies (SEPP) and the parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement which I summarise below.

  6. The Proposed Development as originally lodged by the Applicant with the Respondent was notified for 14 days in accordance with the Blacktown City Council Community Participation Plan 2019. One submission was received. The Proposed Development as amended was re-notified to residents for 14 days in accordance with the Blacktown Community Development Participation 2019 and no further submissions were received.

  7. The Land is zoned R2 Low Density Residential pursuant to the Blacktown Local Environmental Plan 2015 (BLEP). The Proposed Development is permissible in the R2 zone and is consistent with the objectives of the R2 zone.

  8. The first relevant SEPP is the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) (incorporating the provisions of the former and now repealed State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017 (SEPP Childcare)). Notwithstanding that the SEPP Transport and Infrastructure came into force on 1 March 2022 and the provisions of SEPP Childcare were transferred to Chapter 3 of SEPP Transport and Infrastructure, the provisions of the SEPP Childcare continue to have effect in relation to the Proposed Development pursuant to s 5(6) of the Interpretation Act 1987 (Interpretation Act), noting that the relevant transferred provisions were not amended in form or context. The Court also notes the effect of s 30A(2) of the Interpretation Act which provides that:

The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred

  1. Section 3.23 of the SEPP Transport and Infrastructure requires the consent authority to take into consideration any applicable provisions of the Child Care Planning Guideline. An assessment of the Proposed Development in relation to the Child Care Guidelines has been undertaken within the Applicant’s Statement of Environmental Effects (SEE) filed with the Class 1 Application on 12 November 2021.

  2. The Parties agree that the Proposed Development meets the non-discretionary standards in cl 3.26(2) of SEPP Transport and Infrastructure, and the Court notes that the Proposed Development provides at least 3.25m2 of unencumbered indoor space per child and at least 7m2 of unencumbered outdoor space per child.

  3. The next relevant SEPP is the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP SRGC). The State Environmental Planning Policy Amendment (Precincts) 2021 (Precincts SEPP) was published on the NSW legislation website. In that context, it is relevant that cl 6C of SEPP SRGC provides as follows:

(1)    A development application for development on land to which this Policy applies must be determined as if State Environmental Planning Policy Amendment (Precincts) 2021, Schedule 2 (Precincts SEPP) had not commenced.

(2) Subclause (1) only applies to a development application that was—

(a)    lodged before the commencement of the Precincts SEPP, and

(b) not finally determined before the commencement of State Environmental Planning Policy (Sydney Region Growth Centres) Amendment (Savings) 2022.

  1. The Proposed Development was lodged prior to the commencement of the Precincts SEPP and was not finally determined before the commencement of the State Environmental Planning Policy (Sydney Region Growth Centres) Amendment (Savings) 2022, therefore, I am satisfied that it is to be determined as if SEPP Precincts had not commenced.

  2. The Land is located within the Riverstone East Precinct, which is a precinct within the North West Growth Centre as identified in SEPP SRGC, referred to in the North West Growth Centre Land Application Map Sheet LAP_009 and North West Growth Centre Precinct Boundary Map sheet PCB_009.

  3. The Land is identified as bushfire prone land, vegetation category 1. The Proposed Development has been supported by a Bushfire Assessment prepared by Peterson Bushfire dated 6 April 2022 (Bushfire Assessment) filed 30 June 2022. The Bushfire Assessment recommends that an Asset Protection Zone (APZ) be created over Lot 83 in DP 208203 (APZ Land) in favour of the Site. The Applicant has obtained the owner’s consent of the APZ Land and a deferred commencement condition requiring this APZ has been imposed in the agreed conditions of consent.

  4. The final relevant SEPP is the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), (incorporating the provisions of the former and now repealed State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)). SEPP Resilience and Hazards came into force on 1 March 2022, and whilst the provisions of the former SEPP 55 have been transferred, the provisions of SEPP 55 continue to apply to the Proposed Development pursuant to s 5(6) of the Interpretation Act and the Court also notes the effect of s 30A(2) of the Interpretation Act which provides that

The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred

  1. The relevant transferred provision (cl 7 of SEPP 55) was not amended in form or context. Clause 7(1) of SEPP 55 and s 4.6(1) of the SEPP Resilience and Hazards provide that a consent authority must not consent to the carrying out of any development on land unless:

(a)    it has considered whether the land is contaminated, and

(b)    if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)    if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

  1. Clause 7(2) of SEPP 55 and s 4.6(2) of the SEPP Resilience and Hazards provide as follows:

Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land panning guidelines.

  1. As part of the initial subdivision which created the Site, the Site was remediated to ensure suitability for use in a low density residential context. Documentation as part of that process was submitted with the Proposed Development as prepared by Geotest Services and in included in the Class 1 Application filed with the Court on 12 November 2021. This documentation includes:

  1. Post Earthworks Salinity Assessment;

  2. Site Classification Assessment; and

  3. Site Validation & Suitability Report (together referred to as the Reports).

  1. The Reports indicate that the remediation works have been conducted and the Site is suitable for the uses. There have been no further works that would introduce new contamination into the area.

  2. The Parties agree, and the Court is satisfied, that the Site is suitable in its current state for its intended use as a centre based childcare centre as proposed by the Applicant in satisfaction of the provisions of cl 4.6 of SEPP Resilience and Hazards (and those of cl 7(1) of the former SEPP 55).

  3. In relation to the provisions of Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (BDCP), which applies to the Proposed Development, the Parties agree that:

  1. the applicable controls in the BDCP have been considered in the assessment of the Proposed Development and a summary of the Proposed Development’s compliance with relevant controls is provided within the SEE; and

  2. the Proposed Development otherwise complies with applicable controls in BDCP, and to the extent that they may not, the Proposed Development represents a feasible alternative solution that achieves the objectives of those controls in satisfaction of the provisions of s 4.15(3A) of the EPA Act.

  1. 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 and I have summarised in this judgment.

  2. 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:

  1. The Court notes:

  1. Blacktown City Council as the relevant consent authority for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000 agrees to the Applicant amending Development Application no. DA-21-01536 (“development application”) to rely on the following documents:

  1. Amended Architectural Plans (Rev 7) prepared by Dreamscapes Architects and dated 7 June 2022.

  2. Amended Landscape Plan (Rev H) prepared by Mscape dated 27 May 2022.

  3. Amended Stormwater Plans (Rev 6) prepared by ANA Civil Pty Ltd dated 2 May 2022.

  4. Amended Acoustic Report (Rev 3) prepared by Acoustic Noise & Vibration Solutions Pty Ltd and dated 5 June 2022.

  5. Bushfire Assessment prepared by Peterson Bushfire dated 6 April 2022.

  6. Plan of Management prepared by GAT & Associates dated 1 April 2022.

  7. Waste Management Plan prepared by Luxland Tallawong Pty Ltd dated 24 February 2022.

  8. Owner’s consent form dated 1 April 2022.

  1. The amended development application was uploaded to the NSW Planning Portal on 8 June 2022.

  2. The Applicant has subsequently filed the amended development application with the Court on 30 June 2022.

Orders:

  1. The Court orders:

  1. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, in a sum to be agreed or assessed.

  2. The appeal is upheld.

  3. Development Consent is granted to Development Application DA-21-01536 for the Construction of a single storey, 93 place childcare centre with basement car parking, retaining walls, fencing and associated landscaping at Lot 36 DP 1239464, Sweet Street, Rouse Hill, subject to the conditions of consent at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (455059, pdf)

Architectural Plans (8309331, pdf)

Plan of Management (692418, pdf)

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Decision last updated: 07 July 2022

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