Madrajat v Blacktown City Council
[2023] NSWLEC 1595
•11 October 2023
Land and Environment Court
New South Wales
Medium Neutral Citation: Madrajat v Blacktown City Council [2023] NSWLEC 1595 Hearing dates: Conciliation conference on 19 July 2023 Date of orders: 11 October 2023 Decision date: 11 October 2023 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that:
(1) The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.
(2) The appeal is upheld.
(3) Development consent is granted to Development Application No DA-22-01533 for the demolition, tree removal and construction of a two storey child care centre for 48 children with 15 car spaces within the basement level, landscaping and acoustic fencing at the property identified as Lot 2 in DP 1137842 and known as 43 Victoria Road, Rooty Hill NSW 2766, subject to the conditions at Annexure A.
Catchwords: APPEAL – development application – centre based child care facility – conciliation conference – agreement reached – orders made
Legislation Cited: Blacktown Local Environmental Plan 2015, cl 4.3
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7
Environmental Planning and Assessment Regulation 2021, ss 37, 38
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.9
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.25
Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021
Category: Principal judgment Parties: Sarah Madrajat (Applicant)
Blacktown City Council (Respondent)Representation: Counsel:
Solicitors:
J Reid (Applicant)
S Puckeridge (Solicitor) (Respondent)
Centurion Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2023/34011 Publication restriction: Nil
Judgment
-
COMMISSIONER: This appeal concerns a development application for a two storey child care centre for 48 children at 43 Victoria Road, Rooty Hill. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
-
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 July 2023. I presided over the conciliation conference. The conciliation conference was then adjourned to Online Court on several occasions.
-
Following the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement filed on 26 September 2023, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021).
-
The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a document titled Agreed Statement – Jurisdictional Prerequisites. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 2.1.1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
-
As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:
The site is zoned R2 Low Density Residential pursuant to the Blacktown Local Environmental Plan 2015 (BLEP) and development for the purposes of a centre-based child care facility is a nominated use that is permissible with development consent in the zone.
The proposed development complies with the development standard for the maximum building height, pursuant to cl 4.3 of the BLEP, and there are no development standards in the BLEP concerning floor space ratio.
Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Preliminary Site Investigation report dated 12 September 2022, there are no known sources of contamination on the site and the site is suitable for the development, subject to a number of recommendations concerning hazardous building materials associated with demolition and the removal of excavated material, which have been incorporated into the conditions of consent.
The site is located in the Hawkesbury-Nepean Catchment, and therefore Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. Based on the letter prepared by Brad Delapierre of Think Planners dated 13 September 2023, I am satisfied of the matters in ss 6.6(2), 6.7(2) and 6.9(2) of the SEPP B&C.
Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) concerns child care facilities and applies to the proposed development. The proposed development complies with the requirements for unencumbered indoor and outdoor space, and therefore concurrence of the Regulatory Authority is not required by s 3.22. In accordance with s 3.23 and based on the Statement of Environmental Effects, I have considered the applicable provisions of the Child Care Planning Guideline. Further, the proposed development complies with the floor space ratio control in s 3.25 of the SEPP TI.
I have considered the issues raised in the submission received as a result of the notification of the development application.
-
Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).
-
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 4.15 of the EPA Act.
-
The Court notes that:
Blacktown City Council, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 the amendment of Development Application No DA-22-01533 in accordance with the following amended plans and documents:
Drawing No
Revision
Title
Prepared By
Date
Architectural Drawings
00
C
Cover Page
Baini Design
20/07/2023
01
C
Compliance Table, Location Plan
Baini Design
20/07/2023
02
C
Site Context Plan
Baini Design
20/07/2023
03
C
Site Analysis Plan
Baini Design
20/07/2023
04
C
Demolition Plan
Baini Design
20/07/2023
05
C
9am Shadow Diagram
Baini Design
20/07/2023
06
C
12pm Shadow Diagram
Baini Design
20/07/2023
07
C
3pm Shadow Diagram
Baini Design
20/07/2023
08
C
Site Plan
Baini Design
20/07/2023
09
C
Basement Floor
Baini Design
20/07/2023
10
C
Ground Floor
Baini Design
20/07/2023
11
C
First Floor
Baini Design
20/07/2023
12
C
Roof Plan
Baini Design
20/07/2023
13
C
Elevations
Baini Design
20/07/2023
14
C
Sections
Baini Design
20/07/2023
15
C
Kitchen and Laundry Detail
Baini Design
20/07/2023
16
C
Typical Bottle Prep Detail
Baini Design
20/07/2023
17
C
Typical Craft Bench Detail
Baini Design
20/07/2023
18
C
Typical Nappy Change
Baini Design
20/07/2023
19
C
Schedule of Finishes
Baini Design
20/07/2023
20
C
Calculation Plan – Ground Floor
Baini Design
20/07/2023
21
C
Calculation Plan – First Floor
Baini Design
20/07/2023
22
C
Calculation – Indoor Play Area – Age 0-2
Baini Design
20/07/2023
23
C
Calculation – Indoor Play Area – Age 2-3
Baini Design
20/07/2023
24
C
Calculation – Indoor Play Area – Age 3-5
Baini Design
20/07/2023
25
C
Shading Diagram Plan – Ground Floor
Baini Design
20/07/2023
26
C
Solar Access Plan – Ground Floor 10am
Baini Design
20/07/2023
27
C
Solar Access Plan – Ground Floor 11am
Baini Design
20/07/2023
28
C
Solar Access Plan – Ground Floor 12pm
Baini Design
20/07/2023
29
C
Fencing Details
Baini Design
20/07/2023
30
C
3D Perspective
Baini Design
20/07/2023
31
C
Streetscape Elevation
Baini Design
20/07/2023
32
C
Access Detail – Basement
Baini Design
20/07/2023
33
C
Access Detail – Ground Floor
Baini Design
20/07/2023
34
C
Access Detail – First Floor
Baini Design
20/07/2023
Landscape Plan
L-01
B
Landscape Concept
Outside Design Group
15/06/2023
Swept Path Assessment
22-120-03-V2
Sheet 01
Car Park Compliance Ground Floor/Basement Swept Path Assessment
Stanbury Traffic Planning
26/07/2023
22-120-03-V2
Sheet 02
Car Park Compliance Ground Floor/Basement Swept Path Assessment
Stanbury Traffic Planning
26/07/2023
22-120-03-V2
Sheet 03
Car Park Compliance Basement Swept Path Assessment
Stanbury Traffic Planning
26/07/2023
22-120-03-V2
Sheet 04
Car Park Compliance Basement Swept Path Assessment
Stanbury Traffic Planning
26/07/2023
22-120-03-V2
Sheet 05
Car Park Compliance Basement Swept Path Assessment
Stanbury Traffic Planning
26/07/2023
22-120-03-V2
Sheet 06
Car Park Compliance Basement Swept Path Assessment
Stanbury Traffic Planning
26/07/2023
22-120-03-V2
Sheet 07
Car Park Compliance Basement Swept Path Assessment
Stanbury Traffic Planning
26/07/2023
22-120-03-V2
Sheet 08
Car Park Compliance Basement Swept Path Assessment
Stanbury Traffic Planning
26/07/2023
22-120-03-V2
Sheet 09
Car Park Compliance Basement Swept Path Assessment
Stanbury Traffic Planning
26/07/2023
Stormwater Plans
SW001
D
Stormwater Layout Plan Cover Sheet
Baini Design
18/07/2023
SW010
D
Stormwater Layout Plan Basement Plan, Notes & Details
Baini Design
18/07/2023
SW020
D
Stormwater Layout Plan Ground Floor Plan, Notes & Details
Baini Design
18/07/2023
SW021
D
Stormwater Layout Plan WSUD & RWT Section & Details
Baini Design
18/07/2023
SW022
A
Stormwater Layout Plan Cut & Fill and Retaining Wall Plan Layout
Baini Design
18/07/2023
ER001
D
Stormwater Layout Plan Erosion & Sediment Control Plan, Notes & Details (1/2)
Baini Design
18/07/2023
ER002
D
Stormwater Layout Plan Erosion & Sediment Control Plan, Notes & Details (2/2)
Baini Design
18/07/2023
Acoustic Fence Details
7569-3
Outdoor Play Area
(1m Barrier Sectional)
Day Design Pty Ltd
Supplementary / Additional Reports
7569-3.1L
A
Acoustic Review of Architectural Drawings
Day Design Consulting Acoustical Engineers
15/08/2023
7569-1.1R
Environmental Noise Impact Assessment
Day Design Consulting Acoustical Engineers
23/08/2022
Version 2
Plan of Management
13/08/2023
Report on proposal for a child care service at: 43 Victoria Rd Rooty Hill NSW
Early Education Solutions
06/07/2023
Letter re Waste Management Process
Capital City Waste Services
02/08/2023
Letter re Waste Management and Recycling Services
Waste Wise Environmental
21/07/2023
2
Preliminary Environmental Site Investigation & Groundwater Investigation
Environmental Consulting Services Pty Ltd
22/06/2023
2
Arboricultural Impact Assessment and Tree Management Plan
Horticultural Management Services
7/06/2023
The Applicant filed the amended development application on 27 September 2023.
-
The Court orders that:
The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.
The appeal is upheld.
Development consent is granted to Development Application No DA-22-01533 for the demolition, tree removal and construction of a two storey child care centre for 48 children with 15 car spaces within the basement level, landscaping and acoustic fencing at the property identified as Lot 2 in DP 1137842 and known as 43 Victoria Road, Rooty Hill NSW 2766, subject to the conditions at Annexure A.
J Gray
Commissioner of the Court
**********
Annexure A
Decision last updated: 11 October 2023
0
0
7