MHM Invest Pty Ltd v Central Coast Council

[2023] NSWLEC 1352

Land and Environment Court

New South Wales

Medium Neutral Citation:

MHM Invest Pty Ltd v Central Coast Council [2023] NSWLEC 1352

Hearing dates:

Conciliation conference on 16 June 2023

Date of orders:

6 July 2023

Decision date:

06 July 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No 3572/2022, as amended, for the amalgamation of lots, removal of identified trees, demolition of existing structures and construction of a two-storey centre based childcare centre for 81 children with at grade parking on land legally described as Lots 12 & 13 in DP11876 and known as 3-5 Springwood Street, Blackwall, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Central Coast Local Environmental Plan 2022, cll 2.3, 2.7, 4.3, 5, 5.21, 7.1, 7.6, 21

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

Environmental Planning and Assessment Regulation 2021, cl 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Pt 2.3

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.3, 3.23, 3.26

Texts Cited:

Central Coast Community Participation Plan 2019

Central Coast Development Control Plan 2022

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

Category:

Principal judgment

Parties:

MHM Invest Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
A Smith (Applicant)
A Rutherford (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/9986

Publication restriction:

Nil

Judgment

1. COMMISSIONER: MHM Invest Pty Ltd (the Applicant) has appealed the refusal by Central Coast Council (the Respondent) of its Development Application (the DA) 3572/2022, made with owner’s consent, seeking consent for the amalgamation of lots, removal of identified trees, demolition of existing structures and construction of a two-storey centre based childcare centre for 81 children with at grade parking (the Proposed Development) on land legally described as Lots 12 & 13 in DP11876 and known as 3-5 Springwood Street, Blackwall (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s DA was notified from 9 December 2022 and 20 January 2023 pursuant to the provisions of the Central Coast Community Participation Plan 2019, and five submissions were received in response to the notification. These submissions have been considered during the development assessment process.

4. On 16 June 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions.

5. A site view of the Subject Site was undertaken during the conciliation conference and objector submissions in relation to the Proposed Development were received during the view.

6. Under the Parties’ agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. In relation to the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I), Ch 3 of SEPP T&I provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across the State, and:

1. The Proposed Development relates, amongst other things, to a centre-based childcare facility under s 3.3 of SEPP T&I;

2. The provisions of s 3.23 of SEPP T&I requires that the consent authority, or the Court on appeal, must take into consideration any applicable provisions of the Child Care Planning Guidelines, before determining a development application; and

3. The provisions of s 3.26 of SEPP T&I sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority, or the Court on appeal, from requiring more onerous standards for those matters, and in relation to this;

1. the provisions of s 3.26(2) of SEPP T&I sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EP&A Act in relation to the carrying out of development for the purpose of a centre-based childcare facility including that s 3.26(2)(b) of SEPP T&I provides the requirements for indoor or outdoor space, and the DA complies with s 3.26(2) as it provides:

4. 3.26m² of unencumbered indoor space per child; and

5. 7.42m² of unencumbered outdoor space per child.

2. In relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), and:

1. Chapter 2 of SEPP B&C contains provisions relating to the clearing of native vegetation in NSW, and

2. Chapter 2 of SEPP B&C also seeks to:

1. protect the biodiversity values of trees and other vegetation in non-rural areas of the state; and

2. preserve the amenity of non-rural areas of the State through the appropriate preservation of trees and other vegetation;

3. The Subject Site is located in the Central Coast Council local government area (LGA), and that is not a LGA listed in Pt 2.3 of SEPP B&C, and so the provisions of Ch 2 of SEPP B&C does not apply to the Proposed Development;

3. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. Section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this:

1. the DA includes a Preliminary Site Investigation (PSI) and Unexpected Finds Protocol prepared by NEO Consulting Pty Ltd for the Subject Site;

2. based on the findings of the Applicant’s preliminary investigation, the Subject Site is not likely to be contaminated and is considered to be suitable for the proposed development and land use, noting that the Proposed Development will be undertaken in accordance with the recommendations provided in the Applicant’s PSI and Unexpected Finds Protocol; and

3. I am satisfied that the Subject Site is suitable for its intended use under the Proposed Development, as amended, and that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal;

4. In relation to the provisions of Central Coast Local Environmental Plan 2022 (CCLEP):

1. The Subject Site is zoned R2 Low Density Residential pursuant to the provisions of cl 2.3 of CCLEP and centre-based child care facilities are permitted with consent in the R2 Zone, and regard has been had to the objectives of the R2 zone in determining the Applicant’s DA;

2. The provisions of cl 2.7 require that demolition only be carried out with development consent and the DA, as amended, proposes demolition of existing structures on the Subject Site, which is proposed to be approved subject to the imposition of conditions in relation to the Applicant’s proposed demolition works;

3. The provisions of cl 4.3 concerning the height of buildings (HoB) apply, as the Subject Site is subject to a HoB development standard of 8.5m and the Proposed Development complies with this standard;

4. The provisions of cl 5.21 concern flood planning, and:

1. the Subject Site is identified as being affected by flooding, and its 1% AEP flood planning level is RL 4.46;

2. the Proposed Development is designed to be above the flood planning level of RL 4.46; and

3. the Parties have advised, and I am satisfied that the Proposed Development satisfies requirements of cl 5.21(2) of CCLEP, and that the matters requiring consideration as identified in cll 5 and 21(3) of CCLEP have been considered in relation to the design of the Proposed Development;

5. The Proposed Development does not propose any excavation and so the provisions of cl 7.1 concerning acid sulfate soils are not engaged; and

6. The provisions of cl 7.6 concerning essential services require that development consent must not be granted to development unless the consent authority is satisfied that all of the services identified in the clause that are essential for the Proposed Development are available or that adequate arrangements have been made to make them available when required and:

1. the Parties have advised, and I am satisfied, that the Subject Site is located within an established residential area and all of the essential services required under cl 7.6 are available for the Proposed Development; and

2. the provisions of cl 7.6 are fulfilled;

5. In relation to the provisions of Central Coast Development Control Plan 2022 (CCDCP) the Parties have advised, and I am satisfied, that the Proposed Development, as amended, meets the relevant controls within CCDCP, or if not, the Proposed Development, as amended, achieves the objectives of those controls such that it represents a reasonable alternative solution meriting the application of flexibility in the application of those controls as required under the provisions of s 4.15(3A)(2) of the EP&A Act.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. regard has been had to the objectives of the Subject Site’s zoning in determining the DA;

2. the Applicant’s DA can be approved having regard to the matters in s 4.15(1)(b)–(e) of the EP&A Act, including in relation to the submissions received in response to notification which have been considered by the Parties in reaching agreement;

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been satisfied; and

4. approval of the Proposed Development is in the public interest.

10. Further, 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

12. 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.

13. The Court notes that:

1. The Respondent has agreed, as the relevant consent authority has agreed, under clause 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA/3572/2022 to rely upon the following amended plans and documents (Amended Development Application):

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No DA000 Rev F	Cover Page and Sheet List	Greenscape Design & Associates	16 June 2023
	Drawing No DA001 Rev F	Site and Demolition Plan		16 June 2023
	Drawing No DA002 Rev F	Ground Floor Plan		16 June 2023
	Drawing No DA003 Rev F	Level 1 Plan		16 June 2023
	Drawing No DA004 Rev F	Roof Plan		16 June 2023
	Drawing No DA005 Rev F	Sections		16 June 2023
	Drawing No DA006 Rev F	Elevations		16 June 2023
	Drawing No DA007 Rev F	Solar Access – Axonometric View		16 June 2023
	Drawing No DA008 Rev F	View from Sun 13-15		16 June 2023
	Drawing No DA009 Rev F	View from Sun 9-12		16 June 2023
	Drawing No DA010 Rev F	Shadow Diagrams by Hour – Sept 21		16 June 2023
	Drawing No DA011 Rev F	Shadow Diagrams by Hour – Dec 21		16 June 2023
	Drawing No DA012 Rev F	Mid Winter Shadow Elevation		16 June 2023
	Drawing No DA013 Rev F	Mid Winter Shadow Existing Build Elev		16 June 2023
	Drawing No DA014 Rev F	Mid Winter Shadow Existing Build		16 June 2023
	Drawing No DA015 Rev F	FSR Plans		16 June 2023
	Drawing No DA016 Rev F	Unencumbered Area Plan		16 June 2023
	Drawing No DA017 Rev F	3D Views		16 June 2023
	Drawing No DA018 Rev F	Room 3 – Internal View to Street		16 June 2023
Landscape Plan
2	Dwg No. DA_01 Revision D	Site Context Plan	Greenscape Design & Associates	15 June 2023
	Dwg No. DA_02 Revision D	Ground Floor Landscape Plan
	Dwg No. DA_03 Revision D	First Floor Landscape Plan
	Dwg No. DA_04 Revision D	Ground Floor Planting Plan
	Dwg No. DA_05 Revision D	First Floor Planting Plan
	Dwg No. DA_06 Revision D	Existing Tree Plan
	Dwg No. DA_07 Revision D	Precedental Images
	Dwg No. DA_08 Revision D	Planting Schedule
Engineering Plans
3	Dwg No: C00.01 Rev D	General Notes	Engineering Studio Civil & Structural	2 June 2023
	Dwg No: C01.01 Rev D	Sediment & Erosion Control Plan		2 June 2023
	Dwg No: C01.02 Rev D	Sediment & Erosion Control Details		2 June 2023
	Dwg No: C02.01 Rev D	Stormwater Drainage Plan		2 June 2023
	Dwg No: C02.02 Rev D	Stormwater Details Sheet 1		2 June 2023
	Dwg No: C02.03 Rev D	Stormwater Details Sheet 2		2 June 2023
	Dwg No: C02.04 Rev D	Stormwater Details Sheet 3		2 June 2023
Reports / documents
3	Schedule of Amendments		Undated
4	Environmental Noise Assessment		Day Design Pty Limited	15 June 2023
5	Preliminary Site Investigation		Neo Consulting	28 February 2023
6	Traffic and Parking Impact Assessment		McLaren Traffic Engineering & Road Safety Consultants	1 June 2023
7	Plan of Management		5 June 2023

2. the Applicant filed the Amended Development Application with the Court on 20 June 2023.

Orders

14. The Court orders that:

1. The appeal is upheld.

2. Development Application No 3572/2022, as amended, for the amalgamation of lots, removal of identified trees, demolition of existing structures and construction of a two-storey centre based childcare centre for 81 children with at grade parking on land legally described as Lots 12 & 13 in DP11876 and known as 3-5 Springwood Street, Blackwall, is determined by the grant of development consent subject to the conditions at Annexure A.

M Chilcott

Commissioner of the Court

**********

Annexure A

Decision last updated: 06 July 2023