Martopea Pty Ltd v City of Parramatta Council

[2024] NSWLEC 1772

Land and Environment Court

New South Wales

Medium Neutral Citation:

Martopea Pty Ltd v City of Parramatta Council [2024] NSWLEC 1772

Hearing dates:

Conciliation Conference held 14 and 24 October 2024

Date of orders:

03 December 2024

Decision date:

03 December 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs that have been thrown away as a result of the amendment of the development application in the agreed sum of $3,000 within 28 days.

(2) The Appeal is upheld.

(3) Development consent is granted to Development Application No. DA/115/2023 (as amended) for the demolition of existing structures, tree removal, and construction of a three (3) storey 80 place child care centre with parking and associated landscaping and drainage works on land legally described as Lots 699 and 700 in DP 36743 and known as 54 – 56 Marshall Road, Telopea, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – child care centre – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations, regs 107, 108

Environmental Planning and Assessment Regulations, s 38

Parramatta Local Environmental Plan 2023, cl 1.8A

Parramatta Local Environmental Plan 2011, cll 2.7, 4.3, 4.4, 4.5, 6.2, 6.12, 8.2

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, s 6.2

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

Texts Cited:

Community Engagement Strategy 2022–2024

Child Care Planning Guideline

Category:

Principal judgment

Parties:

Martopea Pty Ltd (Applicant)
Parramatta City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
C Campbell (Solicitor)(Respondent)

Solicitors:
Miller Prince (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2024/170114

Publication restriction:

No

Judgment

1. 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 Development Application No. 115/2023, seeks consent for the construction of a three storey, 92 place childcare centre with 23 at grade parking spots (Proposed Development) at Lot 699 DP 36743 & Lot 700 DP 36743, known as 54-56 Marshall Road, Telopea. (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 14 and 24 October 2024. I presided over the conciliation conference. The matter was then listed for on-line court on 22 November 2024 by which time the parties had filed their agreement pursuant to s 34 of the LEC Act.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. The DA was notified in accordance with the Respondent’s Community Engagement Strategy 2022 between 7 March 2023 to 28 March 2023. Five submissions were received during the notification period. These submissions were made by way of objection during the public notification period. The submission raised the following concerns:

1. Privacy;

2. Noise;

3. Traffic; and

4. Decrease in value of the land.

7. The parties agree that the issues raised, where appropriate, have been particularised in the Statement of Facts and Contentions (SOFAC) filed by the Respondent on 7 June 2024, and have been adequately addressed in the Amended DA and conditions of consent at Annexure A. In accordance with the Respondent’s Community Engagement Strategy 2022–2024, the Amended DA was not notified.

8. 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 to be the terms of Ch 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure), Ch 6 of the Sydney Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) and a number of provisions in the Parramatta Local Environmental Plan 2011 (PLEP 2011). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed written document.

9. As the DA was lodged on 23 February 2023, being before 2 March 2023, the date of commencement of the Parramatta Local Environmental Plan 2023 (PLEP 2023), the Parramatta Local Environmental Plan 2011 (PLEP 2011) is the relevant local environmental planning instrument that applies to the Site (cl 1.8A, PLEP 2023)

10. Compliance with the PLEP 2011 is addressed generally in the Statement of Environmental Effects prepared by Think Planners dated 21 December 2022 filed with the Class 1 Application.

11. Demolition works and earthworks are permissible with consent under cl 2.7 and cl 6.2 respectively of the PLEP 2011.

12. The Site is Zoned R4 High Density Residential under the PLEP 2011. The DA seeks consent for a centre-based child care facility which is permissible with consent on the R4 Zone.

13. Clause 4.3 (Height of buildings) of the PLEP 2011 applies to the Site and prescribes a maximum permitted height of building limit of 11m for the Site. The height of the building is 11m.

14. Clause 4.4 (Floor Space Ratio) of the PLEP 2011 applies to the Site and prescribes a maximum floor space ratio of 0.8:1 / 1072.64m2 for the Site. The total gross floor area of the Proposed Development under the Amended DA is 0.47:1 / 640m2.

15. Clause 4.5 of the PLEP 2011 prescribes the calculation of floor space ratio and site area. The Floor Space Ratio of the Proposed Development has been calculated in accordance with clause 4.5 of the PLEP 2011.

16. The Site is located within the Telopea Precinct on the Design Excellence Map. A statement from Baini Design has been provided which demonstrates that the Proposed Development under the DA exhibits design excellence in accordance with cl 6.12 of the PLEP 2011.

17. The Site is mapped in the ‘Telopea Precinct’ on the Intensive Urban Development Area Map. The Site is currently used for residential purposes and is serviced with water, electricity and disposal and management of sewage. Therefore, the Court can be satisfied that public utility infrastructure that is essential for the Proposed Development is already available to the Site in satisfaction of cl 8.2 of the PLEP 2011.

18. A consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use (s 4.6, State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)). The Applicant relies on Preliminary Site Investigation Report prepared by Environmental Consulting Services dated 21 May 2024 which confirms that the Site is considered suitable for proposed redevelopment and sensitive land use provided that the following recommendations in the PSI are implemented:

1. A hazardous building materials survey should be undertaken by a suitably qualified consultant prior to the demolition of buildings. Asbestos containing material (ACM) identified during the building survey, should be dismantled by an appropriately licensed asbestos removalist in such a manner that does not impact the ground surface;

2. The preparation of a waste classifications for any material to be excavated and disposed of off-site. The waste classifications must be prepared in accordance with EPA guidelines; and

3. All waste must be managed and disposed of in accordance with current guidelines and regulations.

19. The agreed conditions of consent at Annexure A ensure that the above recommendations are implemented.

20. The Site is located in the Sydney Harbour Catchment which is a regulated catchment and accordingly Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) contains provisions relating to development within regulated catchments.

21. The Proposed Development satisfies the matters for consideration under s 6.2 of the Biodiversity and Conservation SEPP and will not cause water to enter any natural waterbody. The matters for consideration have been addressed in the following reports which accompany the Amended DA:

1. Addendum Statement of Environmental Effects prepared by Think Planners dated 24 October 2024;

2. Stormwater Management Plans prepared by Deboke, dated 16 September 2024.

22. Chapter 3 - Educational establishments and childcare facilities of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the Proposed Development.

23. The matters for consideration under the Child Care Planning Guideline have been addressed in the Statement of Environmental Effects behind Tab 6 of the Class 1 Appeal which includes a table at pages 28 - 52 demonstrating how the Amended DA complies with the Guideline as required by s 3.23 of the Transport and Infrastructure SEPP.

24. Section 3.26 of the Transport and Infrastructure SEPP sets out non-discretionary development standards for the purpose of s 4.15 of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, regs 107 or 108 of the Education and Care Services National Regulations provides the requirements for indoor or outdoor space. The proposed development provides 293m² of unencumbered indoor play space and 609m² of unencumbered outdoor play space per child which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations, which requires a minimum of 3.25m² of unencumbered indoor play space and 7m² of unencumbered outdoor play space.

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. I adopt the reasons given by the parties as set out in this judgment.

26. 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.

Notations:

27. The Court notes:

1. The Respondent, as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA/115/2023 in accordance with the following amended plans (Amended Development Application):

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1.	Drawing No. 00, Rev F	Cover Page	Baini Design	21 October 2024
	Drawing No. 01, Rev F	Compliance Table, Location Plan
	Drawing No. 02, Rev F	Site Context Plan
	Drawing No. 03, Rev F	Site Analysis Plan
	Drawing No. 04, Rev F	Winter Solstice Shadow Diagram
	Drawing No. 05, Rev F	Winter Solstice Shadow Diagram
	Drawing No. 06, Rev F	Winter Solstice Shadow Diagram
	Drawing No. 07, Rev F	Demolition Plan
	Drawing No. 08, Rev F	Site Plan
	Drawing No. 09, Rev F	Lower Ground Floor Plan
	Drawing No. 10, Rev F	Ground Floor Plan
	Drawing No. 11, Rev F	First Floor Plan
	Drawing No. 12, Rev F	Roof Plan
	Drawing No. 13, Rev F	Elevations
	Drawing No. 14, Rev F	Elevations
	Drawing No. 15, Rev F	Section
	Drawing No. 16, Rev F	Callout Elevations
	Drawing No. 17, Rev F	Kitchen & Laundry Details
	Drawing No. 18, Rev F	Typical Nappy Change
	Drawing No. 19, Rev F	Typical Craft Bench Detail
	Drawing No. 20, Rev F	Typical Bottle Prep Detail
	Drawing No. 21, Rev F	Schedule of Finishes
	Drawing No. 22, Rev F	Lower Ground Floor Fence Plan
	Drawing No. 23, Rev F	Ground Floor Fence Plan
	Drawing No. 24, Rev F	First Floor Fence Plan
	Drawing No. 25, Rev F	Fence Details
	Drawing No. 26, Rev F	Calculation Plan Lower Ground Floor Play
	Drawing No. 27, Rev F	Calculation Plan – First Floor Play Area
	Drawing No. 28, Rev F	Calculation Plan – 0 – 2 Indoor Play Area
	Drawing No. 29, Rev F	Calculation Plan – 2 – 3 Indoor Play Area
	Drawing No. 30, Rev F	Calculation Plan – 3 – 5 Indoor Play Area
	Drawing No. 31, Rev F	Calculation Plan – 2 – 3 Indoor Play Area
	Drawing No. 32, Rev F	Calculation Plan – 3 – 5 Indoor Play Area
	Drawing No. 33, Rev F	Solar Study Plan – Lower Ground Floor
	Drawing No. 34, Rev F	Solar Study Plan – First Floor
	Drawing No. 35, Rev F	3D Perspective
	Drawing No. 36, Rev F	Accessible Plans
	Drawing No. 37, Rev F	Accessible Plans
	Drawing No. 38, Rev F	Accessible Plans
	Drawing No. 39, Rev F	Marshall Street Elevation
	Drawing No. 40, Rev F	Brand Street Camera View Site Plan
Landscape Plans
2.	Drawing No. 250.24(22)/391‘C’	Landscape Plan 1	Iscape Landscape Architecture	30 September 2024
	Drawing No. 250.24(22)/392‘C’	Landscape Plan 2
Engineering Plans
3.	Drawing No. S100, Rev 02	Cover Page	Deboke	16 September 2024
	Drawing No. S101, Rev 02	Specifications Sheet
	Drawing No. S200, Rev 02	Ground Floor Plan
	Drawing No. S202, Rev 02	First Floor Plan
	Drawing No. S203, Rev 02	Roof Plan
	Drawing No. S300, Rev 02	Details Sheet
	Drawing No. S301, Rev 02	Details Sheet
	Drawing No. S400, Rev 02	Erosion and Sediment Control Plan
	Drawing No. S500, Rev 02	MUSIC Catchment Plan
Reports and Documents
4.	Addendum Statement of Environmental Effects		Think Planners	24 October 2024
5.	Design Excellence Response		Baini Design	Undated
6.	Plan of Management		-	24 October 2024
7.	Emergency Evacuation Plan
8.	Landowner’s Consent for DA – 50 – 52 Marshall Road, Telopea		NSW Land and Housing Corporation	10 September 2024
9.	Amended Environmental Noise Impact Assessment		Day Design Pty Ltd	3 October 2024
10.	Addendum Traffic & Parking Report		Hemanote	17 September 2024
11.	Stormwater Easement Report		Deboke	3 September 2024

Orders:

28. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs that have been thrown away as a result of the amendment of the development application in the agreed sum of $3,000 within 28 days.

2. The Appeal is upheld.

3. Development consent is granted to Development Application No. DA/115/2023 (as amended) for the demolition of existing structures, tree removal, and construction of a three (3) storey 80 place child care centre with parking and associated landscaping and drainage works on land legally described as Lots 699 and 700 in DP 36743 and known as 54 – 56 Marshall Road, Telopea, subject to the conditions at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A

Architectural

Plan of Management

**********

Decision last updated: 03 December 2024