Malek v Campbelltown City Council

[2022] NSWLEC 1523

Land and Environment Court

New South Wales

Medium Neutral Citation:

Malek v Campbelltown City Council [2022] NSWLEC 1523

Hearing dates:

Conciliation conference held on 5 & 26 July, 5 & 13 September 2022

Date of orders:

27 September 2022

Decision date:

27 September 2022

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

(1)   The Appeal is upheld.

(2) The Applicant is to pay the Respondent’s costs, as agreed or assessed, pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979.

(3)   Development Application No. 559/2022/DA-C, for the demolition of the existing dwelling & construction of a two storey centre based child care centre for 88 children with basement parking, landscaping and civil works on land legally described as Lot 670 & Lot 669 in DP237980 and known as 1 & 3 Tallowwood Crescent, Bradbury, is approved subject to the conditions at Annexure A.

Catchwords:

CONCILIATION CONFERENCE – agreement between the parties – centre based child care centre – access – traffic - amenity

Legislation Cited:

Campbelltown Local Environmental Plan 2015 cll 7.1, 7.4, 7.10

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

Environmental Planning and Assessment Regulation 2021

Land and Environment Court Act 1979 s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021 cl 11.6

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 cl 23

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021 cl 3.23

Texts Cited:

NSW Child Care Planning Guideline 2017

Education and Care Services National Regulations 2011

Campbelltown (Sustainable City) Development Control Plan 2015

Category:

Principal judgment

Parties:

Phillip Malek (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/91130

Publication restriction:

No

Judgment

1. COMMISSIONER: Development Application No. 559/2022/DA-C was lodged with Campbelltown City Council on 14 February 2022 seeking consent for the demolition of existing structures, lot consolidation and the construction of a two storey, 90 place, centre based child care centre with basement parking at Nos. 1 & 3 Tallowwood Crescent, Bradbury. The Council had not determined the application within the prescribed period and the applicant is appealing the deemed refusal of consent.

2. The applicant has prepared amended plans to address the contentions in the case. Those plans were lodged on the NSW Planning Portal on 13 September 2022 and it is the Council’s position that the amendments made address all of the contentions raised in the Statement of Facts and Contentions (SoFaC) filed on 2 June 2022. The Council does not oppose the grant of consent and has endorsed a s34 agreement between the parties.

The proposal

3. The application is now for the consolidation of two lots into one, demolition of existing dwellings and construction of a two storey, 88 place, centre based child care facility with basement parking on land legally described as Lot 669 and Lot 670 in DP237980 and known as 1 & 3 Tallowwood Crescent, Bradbury.

4. The plans provide for a basement carpark with access of Jacaranda Avenue, one of the more significant changes that have been made to the proposal, as the initial proposal had access of Tallowwood Crescent. A total of 22 cars and 7 bikes can be accommodated in the basement with facilities for storage and plant rooms also provided.

5. Four activity rooms and two outdoor play areas are proposed on ground level with the main pedestrian access to the site off Tallowwood Avenue. A fifth activity room, staff room, kitchen and meeting/study area are provided on the first floor with a third outdoor play area on the western side of the building. All levels of the building are connected by a lift and stairways.

6. The building has been designed to have the appearance of a large dwelling house with pitched metal roof and face brick walls. Acoustic walls would be constructed within the property adjacent to the driveway and enclosing the outdoor play areas.

7. The number of children to be accommodated within the centre has been reduced from 90 to 88.

The site and locality

8. The site is located on the south eastern corner of Tallowwood Crescent and Jacaranda Avenue and comprises two allotments, each containing a single storey dwelling house.

9. It has an area of 1,315.2m² and is adjoined by other residential properties to the south and east.

10. The Bradbury Shopping Centre and its vehicular entrance is directly opposite the site and Sherwood Hills Christian School and Church is located immediately to the south of that centre. A range of other service type uses are located within the centre.

11. A bus stop is located to the south of the site on the eastern side of Jacaranda Avenue and also opposite the site. A condition of consent requires a slight relocation of the eastern bus stop to facilitate safe access to the proposed centre and also sufficient stopping area for the bus.

Planning controls

12. The site is zoned R2 – Low Density Residential pursuant to the provisions of Campbelltown Local Environmental Plan 2015 (LEP). A centre-based child care facility is permissible within that zone with consent.

13. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the site as it is within the Georges River Catchment and Ch 11 applies.

14. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) also applies with Ch 4 relevant.

15. State Environmental Planning Policy (Transport and Infrastructure) 2021 (ISEPP) also applies with Ch 3 relevant to the application.

16. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP EE & CCF) also applies, with the terms of cl 23 particularly relevant.

17. Other relevant documents are the NSW Child Care Planning Guideline 2017 (Guideline) and the Education and Care Services National Regulations 2011 (ECSNR).

18. Campbelltown (Sustainable City) Development Control Plan 2015 (CDCP) also applies to ethe site with Volume 1, Parts 1, 2 and 8 particularly relevant to the application.

The contentions

19. The contentions are detailed in the SoFaC and are summarised as follows:

• Non-compliant Unencumbered Outdoor Play area;

• Inadequate stormwater drainage.

• Unsafe access to driveway and basement;

• Development would have an unacceptable impact on street trees in Tallowwood Crescent;

20. In addition, the Council had contended the applicant had provided insufficient information to allow assessment of the impacts of excavation, noise and traffic nor had it demonstrated essential services were available for the proposed development or that the site was not contaminated.

21. All of these issues were discussed in detail both at the site view and in the subsequent conciliation conferences with the applicant providing the amended plans and a package of information that addressed all of these issues. As a result of the details now provided, the Council is satisfied the contentions have been resolved. The parties seek that the Court make orders in accordance with the s34 Agreement filed by the parties on 13 September 2022. That is the application be approved and consent granted subject to conditions.

22. Under s 34(3) of the Land and Environment Court Act 1979 (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 Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the development application.

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

24. In that regard, the Parties agree, and I am satisfied, Campbelltown Local Environmental Plan 2015 is the relevant environmental planning instrument. The site is zoned R2 Low Density Residential, and the amended proposal is permissible with consent.

25. The proposal complies with all of the relevant development standards in Pt 4 of the LEP.

26. Clause 7.1 of the LEP is in the following form:

7.1 Earthworks

(1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

(2) Development consent is required for earthworks unless—

(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or

(b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.

(3) In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters—

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

27. Having regard to the evidence before me, the agreed position of the parties and the agreed conditions of consent, I am satisfied that the development will not disrupt or have any detrimental effect on drainage patterns and soil stability in the locality of the development or the likely future use/redevelopment of the land.

28. The Amended DA seeks consent for excavation of the site as per the architectural plans. It is considered that the proposed excavation, particularly for the car parking area will have minimal adverse environmental or amenity impact. The cross-fall of the site means the extent of the cut and fill is necessary to establish the basement driveway. The proposal will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability in the area and an acceptable drainage and stormwater plan has been proposed. A condition of consent has been imposed to address unexpected finds.

29. The proposed excavation is consistent with the current and future use of the site. No fill will be imported to the site

30. The Amended DA is accompanied by an Erosion and Sediment Control Plan, a detailed site investigation plan and Remedial Action Plan that deals with the remediation of the site for any potential for contamination. The site is not proximate to any waterway, drinking water catchment or environmentally sensitive area and the consent conditions will ensure appropriate measures are adopted to avoid, minimise or mitigate the impacts of the development.

31. Having considered the provisions of cl 7.1 of the LEP, I find the application does not conflict with the terms of the clause.

32. Clause 7.4 of the LEP is in the following form:

7.4 Salinity

(1) The objective of this clause is to provide for the appropriate management of land that is subject to salinity and the minimisation and mitigation of adverse impacts from development that contributes to salinity.

(2) This clause applies to development on land affected by groundwater salinity and development that may have an adverse impact on salinity processes on any land.

(3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider the following—

(a) whether the development is likely to have any adverse impact on salinity processes on the land,

(b) whether salinity is likely to have an impact on the development,

(c) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

33. Having regard to the material before the Court and the agreed position of the parties, I am satisfied that the development is unlikely to have any adverse impact on salinity processes on the land or salinity is likely to impact the development. I am also satisfied the design of the development and conditions of consent manage to avoid any significant adverse environmental impact.

34. LEP cl 7.10 Essential Services requires the consent authority to be satisfied that the site is already serviced by adequate facilities to cater for the needs of the development or that adequate arrangements have been made to provide those services. Having regard to the evidence provided in the documentation filed with the Court I am satisfied that water, electricity, telecommunications, sewage, road, and vehicle access is available to service the development and that the stormwater from the site can be disposed of in an appropriate manner.

35. Chapter 11 Georges River Catchment of SEPP B&C applies to the proposed development.

36. Clause 11.6 of the SEPP B&C requires a consent authority to consider the matters referred to in Pt 11.2.

37. The matters for consideration under Pt 11.2 of SEPP B&C have been addressed in the following reports which accompany the Amended DA:

• Statement of Environmental Effects prepared by Think Planners dated 4 February 2022;

• Preliminary and Detailed Site Investigation report prepared by Geotechnical Consultants Australia dated 22 August 2022;

• Stormwater plans prepared by Wehbe Consulting dated 29 August 2022; and

• Supporting Stormwater Calculations report prepared by Wehbe Consulting dated 29 August 2022

38. Having regard to this information, I am satisfied the proposed development would be consistent with the provisions of SEPP B&C.

39. Chapter 4 Remediation of land of the SEPP R&H applies to the proposed development.

40. Clause 4.6 of the SEPP R&H requires a consent authority to consider the contamination and remediation of land when determining a development application. Clause 4.6(1) requires that:

A consent authority must not consent to the carrying out of any development on land unless—

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

41. The Amended DA is accompanied by a Preliminary and Detailed Site Investigation report prepared by Geotechnical Consultants Australia dated 29 July 2022.

42. The Amended DA is also accompanied by a Remedial Action Plan prepared by Geotechnical Consultants Australia which was revised on 5 September 2022.

43. The Remedial Action Plan (RAP) will ensure that the land will be satisfactorily remediated before the Site is used for the purpose of the proposed development. Conditions of consent have been imposed requiring compliance with the RAP.

44. Chapter 3 Educational establishments and child care facilities of the ISEPP applies to the proposed development.

45. Clause 3.23 of the ISEPP requires a consent authority to consider the Guideline when determining a development application.

46. The matters for consideration under the Guideline have been addressed in the Statement of Environmental Effects prepared by Think Planners dated 4 February 2022.

47. It is the agreed position of the parties that the plans accompanying the Amended DA comply with the requirements of the Guideline regarding unencumbered outdoor and indoor play areas. I accept that submission.

48. The Amended DA proposes to remove one existing tree (Tree 5) and retain Trees 1 to 4.

49. The Amended DA is supported by Arboricultural Impact Assessment Addendum report dated 20 July 2022 and a Letter of Addendum dated 2 August 2022 prepared by Urban Forestry. These reports confirm the methodology to be employed to protect Trees 1 to 4 during construction. I accept the agreed position of the parties that the methodology is appropriate

50. Having regard to the applicant's explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council.

51. There are not any other matters contained in the Environmental Planning and Assessment Regulation 2021 (EPA Reg) that prevent grant of consent.

52. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable, and that the site is suitable for the development as proposed.

53. A number of residents addressed the Court at the initial site view. The main concerns expressed were that a child care centre was not required in this location and that it would result in adverse amenity and traffic impacts. The relocation of the driveway access to the site from Tallowwood Crescent to Jacaranda Avenue is responsive to the concerns of residents and addressed the contention of the Council. It maintains that the site, being in close proximity to a school and commercial centre, is appropriate for development as a child care centre.

54. I have considered these issues and the advice of the Council’s traffic engineers and, on the basis of that evidence and the agreed conditions of consent, am satisfied that the proposal is satisfactory and that the impacts can be appropriately managed.

55. Accordingly, I am satisfied that the proposal is in the public interest.

56. 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.

57. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

58. For these reasons, I am satisfied that consent should be granted.

59. The Court orders that:

1. The Appeal is upheld.

2. The Applicant is to pay the Respondent’s costs, as agreed or assessed, pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979.

3. Development Application No. 559/2022/DA-C, for the demolition of the existing dwelling & construction of a two storey centre based child care centre for 88 children with basement parking, landscaping and civil works on land legally described as Lot 670 & Lot 669 in DP237980 and known as 1 & 3 Tallowwood Crescent, Bradbury, is approved subject to the conditions at Annexure A.

……………………….

Sue Morris

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 27 September 2022