LZ 26 Pty Ltd v Hunters Hill Council

[2022] NSWLEC 1496

Land and Environment Court

New South Wales

Medium Neutral Citation:

LZ 26 Pty Ltd v Hunters Hill Council [2022] NSWLEC 1496

Hearing dates:

Conciliation conference on 13 and 25 July 2022

Date of orders:

15 September 2022

Decision date:

15 September 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.

(2) The Modification Application to the Court, pursuant to s.4.55(8) of the Environmental Planning and Assessment Act 1979, seeking to modify the development consent granted by the Court on 21 February 2020 to Development Application No. 2019-1002 in Land and Environment Court Proceedings No. 2019/89953, is approved. The modification application, to vary the hours of outdoor play for the children within the childcare centre, at 32 Ryde Road, Hunters Hill (Lot 1 in DP 845479), is modified as set out in Annexure “A” to this judgment.

(3) The Development Consent to Development Application No. 2019-1002, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure “B” to this judgment.

Catchwords:

MODIFICATION APPLICATION – Childcare Centre – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979,
ss 4.55(2), 4.55(8)
Land and Environment Court Act 1979, s 34
Education and Care Services National Regulations (2011) regs 107, 108
Hunters Hill Local Environmental Plan 2021
State Environmental Planning Policy (Transport and Infrastructure SEPP) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021

Texts Cited:

Hunters Hill Council Community Participation Plan

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

Category:

Principal judgment

Parties:

LZ 26 Pty Ltd (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J Cole (Solicitor)(Respondent)

Solicitors:
Swaab (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/76728

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an application to modify Development Consent No. 2019–1002 granted by the Land and Environment Court (proceedings 2019/89953) on 21 February 2020. The modification application (the application) is made pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act). The application was made directly to the Court pursuant to s 4.55(8) of the EPA Act by LZ 26 Pty Ltd (the applicant) with the consent of the owner of the land.

2. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 13 and 25 July 2022. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. The application sought approval to increase the hours of outdoor play for the children within the centre from 7am to 6pm, subject to restrictions. The amended application now seeks approval to increase the hours of outdoor play for the children within the centre from 8.30am to 4.30pm, subject to restrictions. The Plan of Management has been amended to reflect the current application. The amended application was uploaded to the New South Wales Planning Portal on 22 April 2022.

4. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

6. As this is a modification application pursuant to s 4.55(2)(a) of the EPA Act, I must be satisfied that the development to which the consent as modified relates is “substantially the same” as the development for which consent was originally granted.

7. The parties agree, after both a qualitative and quantitative assessment of proposed development, that the proposed modification to the development will still result in a development that is substantially the same as the development for which consent was originally granted. On review of the minor amendments made to the application, I am also satisfied that the proposed development, as modified, does not involve a radical transformation of the development and the essence of the development remains the same. I am satisfied that the modified application passes the “substantially the same” test for modification applications.

8. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Hunters Hill Local Environmental Plan 2021 (HHLEP) the site is zoned R2 Residential and the use is permissible with development consent. In determining the modification application, I have had regard to the objectives of the zone.

2. The s 4.55 Modification Application was notified by the Respondent to surrounding neighbours from 23 March 2022 to 22 April 2022 in accordance with Council’s Community Participation Plan and 16 submissions were received. The submissions were summarised within the Statement of Facts and Contentions and were considered by the parties. I am satisfied that the notification requirements have been met.

3. Consideration has been given to State Environmental Planning Policy (Transport and Infrastructure SEPP) 2021(Transport SEPP). Concurrence from the Department of Education under cl 3.22 of the Transport SEPP is not required because there has been no increase to the number of children as part of the amended modification application. The amended application still complies with:

1. Regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations (ECS Regulations), and

2. Regulation 108 (outdoor unencumbered space requirements) of the ECS Regulations.

4. The application has considered the applicable matters of the Child Care Planning Guidelines, specifically Objective C1, as required under cl 2.23 of the Transport SEPP. The parties agree that the amended application complies/satisfies the relevant clauses of the Guideline. I am also satisfied that these aspects of the application, for the reasons stated above, are satisfactory.

5. Consideration has been given to whether the Site is contaminated as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The parties agree that the minor changes to the current application do not alter the original outcomes forming part of the Development Consent. The proposed modifications do not trigger any further matters for assessment under the Resilience and Hazards SEPP.

9. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) of the EPA Act.

10. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Appeal is upheld.

2. The Modification Application to the Court, pursuant to s.4.55(8) of the Environmental Planning and Assessment Act 1979, seeking to modify the development consent granted by the Court on 21 February 2020 to Development Application No. 2019-1002 in Land and Environment Court Proceedings No. 2019/89953, is approved. The modification application, to vary the hours of outdoor play for the children within the childcare centre, at 32 Ryde Road, Hunters Hill (Lot 1 in DP 845479), is modified as set out in Annexure “A” to this judgment.

3. The Development Consent to Development Application No. 2019-1002, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure “B” to this judgment.

I certify that this and the preceding 3 pages are a true copy of my reasons for judgment.

…………………..

S Harding AC

Acting Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 15 September 2022