Makinie (No 2) Pty Ltd v Blacktown City Council

[2023] NSWLEC 1205

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Makinie (No 2) Pty Ltd v Blacktown City Council [2023] NSWLEC 1205

Hearing dates:

Conciliation conference on 4 April 2023

Date of orders:

03 May 2023

Decision date:

03 May 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA-22-00614, to rely on the documents specified in Annexure A.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA-22-00614 seeking consent for the consolidation of two (2) lots, removal of trees, demolition of existing structures and construction of a one hundred and forty six (146) place single-storey childcare centre with basement car parking and associated works at 94-98 Jersey Road, Dharruk NSW 2770, subject to the conditions in the annexure marked B.

Catchwords:

DEVELOPMENT APPLICATION: centre based child care facility in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Blacktown Local Environmental Plan 2015, cll 4.3, 4.4, 5.21, 7.2, 7.5

Education and Care Services National Regulations 2011, regs 107, 108

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.9, 6.10, 6.11, Ch 6

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.122, 3.22, 3.23, 3.25

Environmental Planning and Assessment Regulation 2021, s 38

Texts Cited:

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

Category:

Principal judgment

Parties:

Makinie (No 2) Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Frangi (Solicitor) (Applicant)
A Rutherford (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/227991

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Blacktown City Council of development application DA-22-00614 seeking consent for the consolidation of two lots, removal of certain trees, demolition of existing structures and construction of a single storey child care centre with basement car parking for 51 vehicles to accommodate 154 child care places, at two sites known as 94-96 Jersey Road, and 98 Jersey Road, Dharruk (the site).

2. The appeal was filed under Class 1 of the court’s jurisdiction on 23 May 2022, and the development application was amended, with leave of the Court, on 15 December 2022.

3. The matter was initially listed before me for hearing on 4 April 2023. However, at case management on 28 March 2023, parties advised the Court that all remaining contentions raised in the Respondent’s Amended Statement of Facts and Contentions filed with the Court on 29 August 2022 had been resolved as a consequence of subsequent without prejudice discussions and further amended documentation.

4. On 31 March 2023, the parties filed a signed agreement prepared in accordance with s 34(10) of the of the Land and Environment Court Act 1979 (LEC Act). This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

5. The matter was reallocated to me, and a conciliation conference under s 34(1) of the LEC Act between the parties was held on 4 April 2023, at which I presided.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [28]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for reasons I will now set out.

8. Owner’s consent is provided by a Director of Makinie (No 2) Pty Ltd dated 27 April 2022.

9. The development application was advertised and notified to adjoining and nearby landowners between 16 – 30 June 2022.

10. The site is located within the R2 Low Density Residential zone according to the Blacktown Local Environmental Plan 2015 (BLEP), in which centre based child care facilities are permitted with consent, where consistent with the following objectives of the R2 zone:

1   Objectives of zone

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.

11. The proposed development complies with the height of building standard of 9m at cl 4.3 of the BLEP. No floor space ratio (FSR) applies to the site according to cl 4.4 of the BLEP, however a calculation of the FSR for the proposal in 0.48:1 is calculated on Drawing 1 of the architectural plans prepared by Baini Design.

12. The site is not identified as flood prone, according to cl 5.21 of the BLEP, and is not identified on the Terrestrial Biodiversity Map – sheet BIO_008, pursuant to cl 7.2(2) of the BLEP.

13. The site is currently occupied by dwellings serviced by water, electricity, sewer, stormwater and vehicular access. Accordingly, I am satisfied that services essential for the development are available in accordance with cl 7.5 of the BLEP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

14. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP) requires written notice to be given to the electricity supply authority in circumstances that are not engaged by the proposed development.

15. Likewise, s 2.122 of the Infrastructure SEPP requires the concurrence of Roads and Maritime Services where the proposal is capable, under Sch 3, of being designated a ‘traffic generating development’. I accept that this site is not so designated.

16. Chapter 3 of the Infrastructure SEPP deals with Educational establishments and child care facilities.

17. The proposal is consistent with the requirements for unencumbered indoor and outdoor space, pursuant to s 3.22(1) of the Infrastructure SEPP, and so also complies with the concomitant requirements of regs 107 and 108 of the Education and Care Services National Regulations 2011.

18. I have considered the applicable provisions of the Child Care Planning Guideline in accordance with s 3.23 of the Infrastructure SEPP. In doing so, I am assisted by the summary of conformity set out in the Statement of Environmental Effects prepared by Think Planners dated 27 April 2022 at pp 29-55.

19. As stated at [11], the FSR for the proposed development is 0.48:1. As such, the proposal complies with the maximum FSR of 0.5:1 permitted by s 3.25 of the Infrastructure SEPP to child care facilities in an R2 zone.

20. The proposal also complies with the relevant non-discretionary development standards set out at s 3.26 of the Infrastructure SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. The site is located within the Hawkesbury-Nepean Catchment. Accordingly, Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the development.

22. On the basis of the Stormwater Management Plan prepared by Capital Engineering Consultants, I have considered those matters required to be considered at s 6.6 of the Biodiversity SEPP. I am satisfied that three on site detention basins are proposed, 100% of roof collection is directed to rainwater reuse tank, and permeable landscape elements such as a swale over deep soil will assist to ensure that the effect of the quality of water entering any natural waterbody will be neutral or beneficial, pursuant to s 6.6(2).

23. That said, the site is not located in close proximity to a natural waterbody and so I am satisfied that the proposal will maintain public access to and from natural waterbodies in the area pursuant to s 6.9, does not represent a conflict in land use, pursuant to s 6.11 of the Biodiversity SEPP, and will not result in an adverse impact on a downstream local government area, pursuant to s 6.10 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

24. On the basis of the conclusions at Preliminary Environmental Site Investigation prepared by Environmental Consulting Services dated 18 March 2022, I have considered whether the site is contaminated, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, and I conclude the site is suitable in its current state, subject to agreed conditions of consent.

Conclusion

25. 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 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.

26. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

27. The Court notes that:

1. Blacktown City Council as the relevant consent authority has approved, pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant’s application to amend the development application the subject of these proceedings, by relying on the documents specified in Annexure A;

2. The Applicant filed the amended application with the Court on 31 March 2023.

Orders

28. The Court orders that:

1. Leave is granted to the Applicant to amend development application DA-22-00614, to rely on the documents specified in Annexure A.

2. The appeal is upheld.

3. Development consent is granted to development application DA-22-00614 seeking consent for the consolidation of two (2) lots, removal of trees, demolition of existing structures and construction of a one hundred and forty six (146) place single-storey childcare centre with basement car parking and associated works at 94-98 Jersey Road, Dharruk NSW 2770, subject to the conditions in the annexure marked B.

T Horton

Commissioner of the Court

**********

Annexure A

Annexure B

Amendments

05 May 2023 - Amendment to typographical error at paragraphs [11] and [19].

Decision last updated: 05 May 2023