McKay Avenue Pty Ltd v Liverpool City Council

[2024] NSWLEC 1611

Land and Environment Court

New South Wales

Medium Neutral Citation:

McKay Avenue Pty Ltd v Liverpool City Council [2024] NSWLEC 1611

Hearing dates:

Conciliation conference on 23 July 2024

Date of orders:

01 October 2024

Decision date:

01 October 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to DA-578/2023, as amended, for the amalgamation of two separate land parcels and demolition of all existing structures in-order to construct a 3-storey, 102 place centre-based child care facility with a total of 26 car parking spaces over a basement level, on land legally described as Lot 70 and 71 in DP235785 and known as 10 and 12 Mckay Avenue Moorebank, subject to the conditions at Annexure A.

Catchwords:

APPEAL – development application – child care centre – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 37, 38

Liverpool Local Environmental Plan 2008

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.25

Texts Cited:

NSW Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

Category:

Principal judgment

Parties:

McKay Avenue Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Najem (Solicitor) (Applicant)
D Galpin (Solicitor) (Respondent)

Solicitors:
St. George Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2023/00462725

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a centre based child care facility at 10-12 McKay Avenue, Moorebank. The development application was lodged with Liverpool City Council, the respondent, on 9 November 2023. 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.

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 was held on 23 July 2024, and continued on multiple occasions by Online Court. I presided over the conciliation conference.

3. 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 final agreement was filed on 26 September 2024 (replacing that which was filed on 11 September 2024), following the Council’s approval of an application for an amendment to the development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments to the development application include updated landscape plans for improved public domain works, an amended Plan of Management, an updated Evacuation plan, as well as changes to the plans to incorporate ceiling fans, changes to fire egress stair 2 and 3, additional windows and a temporary loading bay.

4. 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 Jurisdictional Note that sets out what the parties agree to be the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. 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 development is for the purpose of a centre based child care facility, which is a permissible use in the R4 High Density Residential zone in which the site is located, pursuant to the Liverpool Local Environmental Plan 2008 (LLEP).

• The proposed development complies with the development standards in the LLEP for height and floor space ratio (FSR).

• 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 Social Impact Comment by Think Planners dated 29 May 2024 and the Statement of Environmental Effects dated 28 September 2023, I have considered the applicable provisions of the Child Care Planning Guideline. Further, the proposed development complies with the FSR control in s 3.25 of the SEPP TI.

• 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 15 September 2023, the site is suitable for the development, subject to meeting certain recommendations in the report, which are incorporated into the conditions of consent.

• The development application was notified for 14 days from 14 November 2023. No submissions were received.

6. 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)).

7. 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.

8. The Court notes that the Respondent, as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA-578/2023 in accordance with the following amended plans and approved documents:

Plan number	Revision Number	Plan Title	Drawn by	Date of plan
08	B	DEMOLITION PLAN	Baini Design	30/05/24
09	B	SITE PLAN	Baini Design	30/05/24
10	B	BASEMENT FLOOR	Baini Design	30/05/24
11	B	GROUND FLOOR	Baini Design	30/05/24
12	B	FIRST FLOOR	Baini Design	30/05/24
13	B	SECOND FLOOR	Baini Design	30/05/24
14	B	ROOF PLAN	Baini Design	30/05/24
15	B	ELEVATIONS	Baini Design	30/05/24
16	B	ELEVATIONS	Baini Design	30/05/24
17	B	SECTIONS	Baini Design	30/05/24
18	B	SCHEDULE OF FINISHES	Baini Design	30/05/24
19	B	CALLOUT ELEVATIONS	Baini Design	30/05/24
20	B	KITCHEN & LAUNDRY DETAILS	Baini Design	30/05/24
43	B	FENCING DETAILS – GROUND FLOOR	Baini Design	30/05/24
44	B	FENCING DETAILS – FIRST FLOOR	Baini Design	30/05/24
45	B	FENCING DETAILS – SECOND FLOOR	Baini Design	30/05/24
01	C	GROUND FLOOR landscape plan	OutsideInDesign	06/09/24
02	C	FIRST/Second Floor landscape plans	OutsideInDesign	06/09/24

Approved documents

Document title	Version number	Prepared by	Date of document
Environmental Noise Impact Assessment	7858-1.1R Rev A	Day Design Pty Ltd	15 May 2024
Emergency & Evacuation Report	Version 1	Lynda Campbell	21 May 2024
Evacuation Diagram	-	SPS	25/09/2023
Plan of Management	Version 3	-	23 July 2024
Arboricultural Impact Assessment	Revision: Final	Creative Planning Solutions	23/07/2024
Accessibility Compliance Report	Issue B	Access Link Consulting	19 September 2023
Traffic & Parking Impact Assessment	Revision: Final	Hemanote Consulting	14 September 2023
Waste Management Plan	REF-23102	Dickens Solutions	September 2023

9. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to DA-578/2023, as amended, for the amalgamation of two separate land parcels and demolition of all existing structures in-order to construct a 3-storey, 102 place centre-based child care facility with a total of 26 car parking spaces over a basement level, on land legally described as Lot 70 and 71 in DP235785 and known as 10 and 12 Mckay Avenue Moorebank, subject to the conditions at Annexure A.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 01 October 2024