Mick Riff Railway Pty Ltd v City of Parramatta Council

[2024] NSWLEC 1538

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mick Riff Railway Pty Ltd v City of Parramatta Council [2024] NSWLEC 1538

Hearing dates:

Conciliation conference on 17 June and 11 July 2024

Date of orders:

03 September 2024

Decision date:

03 September 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application, as agreed, in the amount of $4,500.00.

(2) The appeal is upheld.

(3) Development Application DA/980/2022, as amended, for the demolition of existing structures, tree removal and construction of a two-storey, 108 place centre based child care facility with basement parking for 24 vehicles, at 53-57 Railway Street, Granville, legally known as 6A DP 160801 and 5B DP 160801 and 5A DP 160801, is determined by the grant of Development Consent subject to the conditions set out in Annexure “B”.

Catchwords:

DEVELOPMENT APPLICATION – child care centre –amended plans – conciliation conference – agreement reached – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15
Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations (2011 SI 653)
Environmental Planning and Assessment Regulation 2021, s 38

Holroyd Local Environmental Plan 2013, cl 4.3

State Environmental Planning Policy (Resilience and Hazards), s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Chs 2, 3, s 3.23

Texts Cited:

NSW Child Care Planning Guidelines

Category:

Principal judgment

Parties:

Mick Riff Railway Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

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

Solicitors:
Macquarie Lawyers (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2023/423247

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Mick Riff Railway Pty Ltd (the Applicant). The appeal is against Parramatta City Council (the Respondent) for the refusal of Development Application No. 980/2022 which was lodged on 14 December 2022.

2. The Development Application seeks Development Consent for the demolition of existing structures, tree removal and construction of a two-storey, 108 place centre based child care facility with basement parking for 24 vehicles, at 53-57 Railway Street, Granville (Site). The Site is legally known as 6A DP 160801, 5B DP 160801 and 5A DP 160801.

3. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 17 June 2024. At the commencement of proceedings, the parties undertook a view of the site.

4. 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. The proposed decision was to grant Development Consent to the Development Application subject to conditions.

5. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court. Parramatta City Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the Development Application.

6. Pursuant to s 34(3) of the Land and Environment Court Act 1979 (LEC Act), I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

8. As the presiding Commissioner, I am satisfied that the decision is one 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Holroyd Local Environmental Plan 2013 (HLEP 2013), the subject site is zoned R4 – High Density Zone. Centre-based child care facilities are permissible, with Development Consent, in the zone. In determining the Development Application, the parties have had regard to the objectives of the zone.

2. Clause 4.3 (Height of Buildings) applies to the Site and prescribes a maximum building height of 15 metres. The parties agree that the development complies with this development standard.

3. The Development Application was notified to nearby properties of the Site in January 2023. No submissions were received in relation to the proposed development.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

4. Consideration has also been given to whether the Site is contaminated as required by s 4.6 of the Resilience and Hazards SEPP. The Applicant provided a Preliminary Site Investigation by GeoEnviro Consultancy Pty Ltd which concludes that the Site is considered suitable for the proposed land use subject to recommendations. The parties agree that the requirements of s 4.6(1) of the Resilience and Hazards SEPP are satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021 and Education and Care Services National Regulation (2011 SI 653)

5. The required consideration has been given to State Environmental Planning Policy (Transport and Infrastructure) 2021 (ISEPP). The parties agree that the Development Application has addressed the necessary matters in Chs 2 and 3 of the ISEPP.

6. Chapter 3 of the ISEPP which relates to Education Establishment and Child Care Facilities. This includes compliance assessment and responses to the various considerations, and numerical requirements, in the NSW Child Care Planning Guidelines, as required under s 3.23 of the ISEPP.

7. The Education and Care Service National Regulations (2011 SI 653) also apply to the development. The required assessment of compliance has been undertaken and is satisfied. The Amended Development Application provides at least 3.25m² of unencumbered indoor play space and at least 7m² of unencumbered outdoor play space which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations (2011 SI 653).

8. Where appropriate, the parties have agreed on conditions around the operation of the proposed centre and these are included in Annexure B. On this basis, I agree that the various aspects of the ISEPP have been appropriately considered.

9. 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’ agreement.

10. 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.

11. The Court notes that:

1. Parramatta City Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA/980/2022 in accordance with the listed in Annexure “A” to this judgment.

Orders

12. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application, as agreed, in the amount of $4,500.00.

2. The appeal is upheld.

3. Development Application DA/980/2022, as amended, for the demolition of existing structures, tree removal and construction of a two-storey, 108 place centre based child care facility with basement parking for 24 vehicles, at 53-57 Railway Street, Granville, legally known as 6A DP 160801 and 5B DP 160801 and 5A DP 160801, is determined by the grant of Development Consent subject to the conditions set out in Annexure “B”.

Stuart Harding

Acting Commissioner of the Court

Annexure A

Annexure B

**********

Decision last updated: 03 September 2024