M Group Invest Pty Ltd v City of Parramatta Council

[2024] NSWLEC 1628

Land and Environment Court

New South Wales

Medium Neutral Citation:

M Group Invest Pty Ltd v City of Parramatta Council [2024] NSWLEC 1628

Hearing dates:

Conciliation conference held 11 March, 8 April, 29 April, 8 May, 17 May, 25 June, 29 July, 23 August and 30 August 2024

Date of orders:

9 October 2024

Decision date:

09 October 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA/7/2023 and rely upon the amended plans referred to at Condition 1 of Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $3,000.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA/7/2023 (as amended) for amalgamation of two separate land parcels, tree removal, demolition of existing structures and construction of a two-storey 74 place centre-based childcare facility with 19 parking spaces on the lower ground floor at 7 Yates Avenue, Dundas Valley, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – childcare centre – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 37, 38

Education and Care Services National Regulations

Parramatta Local Environmental Plan 2011, cll 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.5, 6.6, 6.7

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 6.6, 6.7, 6.8, 6.9

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

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

Texts Cited:

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

Category:

Principal judgment

Parties:

M Group Invest Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Centurion Lawyers (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2023/260699

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by M Group Invest Pty Ltd (the Applicant), against the deemed refusal of Development Application DA/7/2023 (the DA) by City of Parramatta Council (the Respondent). At the date of its lodgement on 9 January 2023, the DA sought consent for amalgamation of two separate land parcels, tree removal, demolition of existing structures and construction of a two-storey 83 place centre-based childcare facility with 22 parking spaces on the lower ground floor at 7 Yates Avenue, Dundas Valley (the site).

2. The Court arranged a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 March, 8 April, 29 April, 8 May, 17 May, 25 June, 29 July, 23 August and 30 August 2024. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of note, the DA has been amended by agreement between the parties to resolve each of the contentions initially raised by the Respondent. These contentions included the proposed scale and form of the building design, its envelope and configuration, inconsistencies with the zone objectives of the R2 Low Density Residential land use as set out in the Parramatta Local Environmental Plan 2011 (PLEP), traffic generation, parking and pedestrian safety, unsuitable landscaping, inadequate outdoor space, inadequate storage, and adverse acoustic impacts, amongst other contentions.

5. Agreed design amendments have been made to improve the DA’s relationship to the site and its context thereby resolving each of the Respondent's contentions. In summary, these amendments have improved the presentation of the proposed childcare centre to its immediate neighbours, introduced adequate landscape design treatments and sufficient open space, provided adequate storage, mitigated against acoustic impacts, and mitigated against privacy and cross viewing impacts.

6. The agreed amendments to the DA also have the effect of reducing the capacity of the proposed childcare centre from 83 places to 74 places.

7. 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 amended DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The DA was publicly notified from 18 January to 9 February 2023. Twenty-seven submissions were received by the Respondent raising concerns for issues including:

1. Traffic movement and congestion.

2. Safety and hazards for children and pedestrians.

3. Impacts on biodiversity values.

4. Parking and site capacity.

5. Overshadowing concerns.

6. Acoustic and visual privacy concerns.

7. Saturation of childcare centres in the local area.

8. Tree removal and replacement.

11. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent appropriately address the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately considered.

12. The parties agree, and I am satisfied, that the PLEP was the relevant local environmental planning instrument at the date the DA was lodged. The site is zoned R2 Low Density Residential, and the proposed development – characterised as a childcare centre – is permissible with consent.

13. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the PLEP, the amended DA is consistent with the R2 Low Density Residential zone objectives, which include to enable other land uses that provide facilities or services to meet the day to day needs of residents, to maintain the low density residential character of the area, to ensure non-residential land uses are carried out in a way that minimises impacts on the amenity of a low density residential environment, to provide a range of community facilities that serve the needs of people who live in, work in and visit the area, and to protect and enhance tree canopy, existing vegetation and other natural features.

14. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the PLEP demolition requires development consent and that the amended DA proposes demolition of existing structures.

15. The parties agree, and I am satisfied, that all principal development standards of the PLEP have been met, and in particular that the amended DA complies with the standards for height of building (cl 4.3 of the PLEP) and floor space ratio (FSR) (cl 4.4 of the PLEP).

16. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the PLEP – Heritage conservation – the site is not a listed heritage item, nor is it situated in a Heritage Conservation Area, nor near any other listed heritage item.

17. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the PLEP – Flood planning – the site is not identified as being situated on flood prone land.

18. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the PLEP – Acid sulfate soils – the site is mapped within an area identified as Class 5 Acid Sulfate Soils under the Acid Sulfate Soils Map. However, it is agreed that the site is not located within 500m of any adjacent Class 1, 2, 3 or 4 Acid Sulphate Soils and the amended DA will not have any adverse impact on the site or on its surrounds.

19. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the PLEP – Earthworks – the DA proposes excavation and earthworks forming a matter for consideration. I am satisfied that each of the matters set out at cl 6.2(3)(a)-(g) of the PLEP have been satisfactorily addressed in the amended DA. In support of this, the Applicant has provided a Preliminary Site Investigation Report dated 3 June 2022 prepared by Geotechnical Consultants Australia.

20. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the PLEP – Biodiversity protection – the site is not identified on the Natural Resources – Biodiversity Map.

21. The parties agree, and I am satisfied, that pursuant to cl 6.5 of the PLEP – Water protection – the site is not identified on the Natural Resources Riparian – Land and Waterways Map.

22. The parties agree, and I am satisfied, that pursuant to cl 6.6 of the PLEP – Development on landslide risk land – the site is not identified as being subject to landslide risk.

23. The parties agree, and I am satisfied, that pursuant to cl 6.7 of the PLEP – Foreshore building line – the site is not within close proximity of the foreshore and is not located within the foreshore building line.

24. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination.

25. Further, the Applicant has provided a Preliminary Site Investigation Report dated 3 June 2022 prepared by Geotechnical Consultants Australia which confirms the site is suitable for the proposed development, providing that the recommendations of the report are undertaken to address any potential hazardous material prior to demolition. Agreed conditions of consent are imposed requiring implementation of the report’s recommendations. Accordingly, I am satisfied the amended DA addresses the relevant matters outlined in s 4.6 of SEPP Resilience and Hazards.

26. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument. Chapter 2 of SEPP BC deals with vegetation in non-rural areas and applies to land within the City of Parramatta.

27. The parties agree, and I am satisfied, the amended DA seeks the removal of a number of trees to accommodate the proposed development. The Applicant has provided an Arboricultural Impact Assessment and Tree Management Plan dated 12 December 2022 prepared by Horticultural Management Services. The amended DA includes the planting of replacement trees. Accordingly, I am satisfied, that the amended DA is consistent with the matters set out at Ch 2 of SEPP BC.

28. The parties agree, and I am satisfied, that Ch 6 of SEPP BC applies to the amended DA as the site is within the regulated catchment of Sydney Harbour. However, the site is situated more than 350m from Darling Mills Creek and more than 1km from Parramatta River, the site is not flood prone and an appropriate detailed drainage concept and erosion and sediment controls are proposed with the amended DA. Accordingly, I am satisfied that those matters set out at ss 6.6, 6.7, 6.8 and 6.9 of SEPP BC have been appropriately addressed.

29. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument. Chapter 3 of SEPP Infrastructure deals with development for the purposes of childcare facilities.

30. Pursuant to s 3.23 of SEPP Infrastructure – Centre-based child care facility—matters for consideration by consent authorities – the parties agree, and I am satisfied, that the applicable provisions of the Child Care Planning Guideline have been considered and the amended DA complies with the relevant provisions of the guidelines.

31. Pursuant to s 3.26 of SEPP Infrastructure – Centre-based child care facility—non-discretionary development standards – the parties agree, and I am satisfied, that the amended DA development complies with the relevant non-discretionary development standards set out at s 3.26(2) of SEPP Infrastructure.

32. The parties agree, and I am satisfied, that the amended DA is consistent with the various requirements of the Education and Care Services National Regulations, which address matters including licensing, staffing ratios and other operational requirements for childcare centres.

33. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

34. The Court notes that:

1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 30 August 2024.

Orders

35. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA/7/2023 and rely upon the amended plans referred to at Condition 1 of Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $3,000.

3. The appeal is upheld.

4. Consent is granted to Development Application DA/7/2023 (as amended) for amalgamation of two separate land parcels, tree removal, demolition of existing structures and construction of a two-storey 74 place centre-based childcare facility with 19 parking spaces on the lower ground floor at 7 Yates Avenue, Dundas Valley, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

Architectural Plans

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Decision last updated: 09 October 2024