Mabella Park Pty Ltd v Burwood Council
[2025] NSWLEC 1021
•21 January 2025
Land and Environment Court
New South Wales
Medium Neutral Citation: Mabella Park Pty Ltd v Burwood Council [2025] NSWLEC 1021 Hearing dates: Conciliation conference 8 November 2024 Date of orders: 21 January 2025 Decision date: 21 January 2025 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application No DA2023.65, as amended, for the consolidation of three lots into one lot, the demolition of a dwelling and all associated structures, the demolition of three existing shops (excluding western facades) and conversion into one commercial tenancy (with upper level workshop), construction of two storey mixed use development comprising two basement levels with one basement commercial tenancy, and a centre-based child care facility accommodating 60 children with associated landscaping on the land at 40-44 Claremont Road, Burwood Heights is determined by the grant of consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL – mixed use – 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
Land and Environment Court Act 1979, s 34
Burwood Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.4, 4.6, 5.10
Education and Care Services National Regulations 2011
Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.26
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021
Category: Principal judgment Parties: Mabella Park Pty Ltd (Applicant)
Burwood Council (Respondent)Representation: Counsel:
Solicitors:
T Poisel (Applicant)
J Corradini-Bird (Solicitor) (Respondent)
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2024/315335 Publication restriction: Nil
JUDGMENT
-
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 DA.2023.65 for the demolition of some of the existing structures, retention of the western facades, site consolidation, conversion of a commercial tenancy including the upper level workshop and construction of a two storey mixed use development including a centre based child care facility with associated works including a basement (DA) at 40-44 Claremont Road, Burwood Heights (site).
-
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 8 November 2024. I presided over the conciliation conference.
-
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.2023.65 in accordance with the documents listed at Annexure B.
-
The amendments include:
Change of type of access to the lower ground floor from three steps to a ramp.
Re-location of the accessible car space to allow for a more direct path which is now shown with a zebra crossing pattern.
Amendment to evacuation plan to reflect the addition of the accessible pathway on the lower ground floor plan.
Addition of Pilates Studio signage near the wall adjacent to the entry pathway from Arthur Street frontage.
Exclusion of 0.5m along the bottle preparation cupboards in the indoor play area calculations.
Addition of sliding doors for the storage cupboard on the ground and first floors.
Relocation of the wall between the two indoor play areas to allow for the minimum area required in each room.
-
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.
-
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
-
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.
-
The DA was lodged to the Respondent on 28 July 2023. I am satisfied that owners consent accompanied the DA as provided in the class 1 application. The Respondent notified the DA for 14 days from 9 August 2023. 12 submissions were received, with 11 raising objections. One submission contained 63 signatures supporting the proposed development. The DA was further notified from 19 June to 19 July 2024 and received five submissions. The amended DA was renotified to people who objected to the DA, where one submission was received.
-
At the on site viewing, the Court and parties benefitted from hearing the concerns from two objectors in relation to a range of matters including increased traffic, parking constraints, current congestion and the need for a child care centre in the area.
-
As the parties have entered into an agreement, the Court’s role is limited in considering the issues raised to legal matters. In reaching agreement, the parties have considered the merit concerns raised on site and the written objections.
Burwood Local Environmental Plan 2012 (BLEP)
-
The subject site is zoned E1 Local Centre pursuant to the BLEP, where the proposed uses for a centre based child care centre and commercial premises are permissible with consent.
-
Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 permits demolition with consent, as sought in the amended DA.
-
Clause 4.3 height of buildings applies which allows a maximum height of 10m. The jurisdictional statement and amended architectural plans prepared by Advanced Architecture dated November 2024 (architectural plans) show that the amended DA is below the height limit.
-
Clause 4.4 floor space ratio (FSR) applies and allows a maximum of 1.1:1. The parties agree that the development does not exceed 1.1:1 on the basis that the outdoor play area is excluded from GFA as it is open to the sky. For the abundance of caution, the parties submit that if the outdoor play area was included in GFA, that the amended DA would exceed the FSR, at 1.23:1. The amended DA is accompanied by a clause 4.6 written request prepared by Think Planners dated December 2024 (written request), which the parties agree satisfies the provisions of cl 4.6 to provide flexibility to cl 4.4 in these circumstances. I have considered the parties’ advice in paragraphs 42 and 43 of the jurisdictional statement.
-
The Court’s role in making s 34 agreements is limited to legal jurisdiction and that the parties’ agreement must be made where that decision could have been made in the proper exercise of its functions (s 34(3)). I therefore accept the parties’ agreed primary position that the proposed development complies with the FSR development standard (excluding the outdoor area as GFA). In the event that this is incorrect, I also accept that the precautionary written request satisfies the precondition requirements of cl 4.6 and that flexibility to cl 4.4 has been adequately justified by the written request.
-
The site is located within the Badminton Road to Culdees Road Heritage Conservation Area (HCA) and borders local heritage items. I accept that the parties’ have adequately considered the provisions of cl 5.10 and that the proposal will conserve the heritage values of the site, HCA and adjoining items as demonstrated by the suite of heritage related reports including the Statement of Heritage Impact dated July 2023, the Addendum to the Statement of Heritage Impact dated 28 October 2024, further Addendum to the Heritage Statement dated 28 May 2024, all prepared by Graham Hall and the Addendum to the Structural Inspection report prepared by Shreeji Consultants dated October 2024.
State Environmental Planning Policy (Resilience and Hazards) 2021
-
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, a Detailed Site Contamination Investigation dated 24 May 2024 and a Remediation Action Plan (RAP) dated 27 May 2024 prepared by Geo-Environmental Engineering in relation to the proposed uses and remediation strategy.
-
The RAP concludes that implementation of the proposed remediation strategies will render the site suitable for the proposed uses. The recommendations have been included in the conditions of consent at Annexure A (conditions 16 and 17). Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.
State Environmental Planning Policy (Transport and Infrastructure) 2021
-
Chapter 3 Educational establishments and childcare facilities of SEPP TI applies to the proposed development.
-
The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by ss 3.22 and 3.26 of SEPP TI as shown on the architectural plans and outlined in the Statement of Environmental Effects prepared by Think Planners dated 30 May 2024 (SEE). Further, based on the agreed submissions from the parties in the jurisdictional statement and SEE, I have considered the provisions of ss 3.22, 3.23, 3.26, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.
Conclusion
-
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.
-
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.
-
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
-
The Court orders:
The appeal is upheld.
Development Application No DA2023.65, as amended, for the consolidation of three lots into one lot, the demolition of a dwelling and all associated structures, the demolition of three existing shops (excluding western facades) and conversion into one commercial tenancy (with upper level workshop), construction of two storey mixed use development comprising two basement levels with one basement commercial tenancy, and a centre-based child care facility accommodating 60 children with associated landscaping on the land at 40-44 Claremont Road, Burwood Heights is determined by the grant of consent subject to the conditions at Annexure A.
S Porter
Commissioner of the Court
Annexure A
Annexure B
**********
Decision last updated: 21 January 2025
0
0
7