Mustafa v Liverpool City Council

[2025] NSWLEC 1229

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mustafa v Liverpool City Council [2025] NSWLEC 1229

Hearing dates:

Conciliation conference on 27 February 2025; 17 March 2025 and 2 April 2025

Date of orders:

11 April 2025

Decision date:

11 April 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to No. DA-156/2024, as amended, for the demolition of existing buildings and structures, construction and operation of a two-storey childcare centre over basement accommodating 48 children, together with associated facilities, access, and landscaping, on land legally described as Lot 112 DP 239234 and known as 1 Lewin Crescent, Chipping Norton NSW 2170, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – centre-based child care facility in R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land Environment Court Act 1979, s 34

Education and Care Services National Regulations, regs 107, 108

Environmental Planning and Assessment Regulation 2021, s 38

Liverpool Local Environmental Plan 2008, cll 4.3, 4.4, 7.7, 7.31

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, 3.26

Texts Cited:

Department of Planning, Industry and Environment, Child Care Planning Guidelines

Category:

Principal judgment

Parties:

Ozden Mustafa (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor)(Applicant)
J Garcia (Solicitor)(Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/325607

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Development is proposed on a corner block in the Sydney suburb of Chipping Norton. Demolition of an existing dwelling house is proposed to permit the construction of a centre-based child care centre over basement car parking at the intersection of Longstaff Avenue and Lewin Crescent.

2. To this end, development application DA-156/2024 (the DA) was lodged with Liverpool City Council (the Respondent) on 3 April 2024 for the demolition of existing buildings and structures, construction and operation of a two-storey childcare centre over basement accommodating 48 children, together with associated facilities, access, and landscaping at 1 Lewin Crescent, Chipping Norton being legally described as Lot 112 in Deposited Plan 239234, and notified for a period of 14 days in April 2024, in response to which four submissions were received.

3. As the DA was otherwise undetermined, on 3 September 2024, the Applicant in these proceedings, Mr Ozden Mustafa, filed an appeal in Class 1 of the Court’s jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34 of the Land Environment Court Act 1979 (LEC Act) on 27 February 2025, which commenced with an onsite view after which the conciliation conference, at which I presided, continued at Council chambers.

5. At the conciliation conference, the parties agreed certain amendments that, in the view of the Respondent at the commencement of proceedings, were capable of resolving the matters in contention, subject to the provision of further detail that necessitated the further amending of plans and other documents, and for which I granted an adjournment on two occasions.

6. On the basis of those amended plans, and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. The Respondent approved the amending of the application by the Applicant, in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 2 April 2025.

8. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

9. 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. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [26].

10. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

11. The DA was lodged with the written consent of the owner, Mr Mustafa and other joint owners of the site that are named on the DA form.

12. The site is located within an area designated in the Liverpool Local Environmental Plan 2008 (LLEP) zoned for R3 Medium Density Residential development, in which centre-based child care facility is permitted with consent, where consistent with the following objectives of development in the R3 zone:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for a concentration of housing with access to services and facilities.

•  To provide for a suitable visual transition between high density residential areas and lower density areas.

•  To ensure that a high level of residential amenity is achieved and maintained.

13. The proposed development complies with the height standard at cl 4.3 of the LLEP, and the floor space ratio standard at cl 4.4 of the LLEP.

14. The site is identified on the relevant map at cl 7.7(2) of the LLPE as class 5 acid sulfate soils, however the excavation proposed to give effect to the development is proposed to a maximum depth of approximately RL18.14 Australian Height Datum (AHD). As such, it will not result in the watertable being lowered below 1 metre AHD on an adjacent land classified otherwise.

15. I am also of the view that the matters for consideration at cl 7.31(3) of the LLEP are adequately addressed in the documents on which Applicant relies, including:

1. Geotechnical Investigation prepared by Geotechnical Consultants Australia dated 18 September 2023

2. Landscape plans, prepared by Conzept Landscape Architects

3. Stormwater Concept Plans, prepared by LMW Design Group

State Environmental Planning Policy (Transport and Infrastructure) 2021

16. As the proposal is for a centre-based child care facility, the provisions at Ch 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP) apply.

17. As the proposal provides the areas nominated by regs 107 and 108 of the Education and Care Services National Regulations, the remainder of the provisions at s 3.22(1) of the Infrastructure SEPP do not apply.

18. Section 3.23 of the Infrastructure SEPP requires the consent authority to take into consideration any applicable provisions of the Child Care Planning Guidelines (CCPG), before determining a development application. I have considered those provisions of the CCPG and I accept that adequate consideration has been given to them. In particular, I accept that special consideration is given to those provisions relating to the amenity of the indoor and outdoor spaces including the rearrangement of those spaces to deal with traffic noise, the provision of greater building separation from the neighbouring properties, the classified road and the provision of significant mature planting in deep soil areas on the site.

19. Section 3.26 of the Infrastructure SEPP sets out broad non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purposes of a centre-based child care facility. I accept that those broad provisions are achieved.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) is a relevant consideration in these proceedings as it precludes the grant of development consent unless the consent authority has considered relevantly whether the site is contaminated and, if it is, that it is satisfied that the land is suitable (or will be suitable after remediation) for the proposed use.

21. In particular, s 4.6(2) of the Hazards SEPP requires that the consent authority consider a report specifying the findings of a preliminary site investigation of the land concerned, if the proposed development would involve a change of use on any of the land set out in s 4.6(4).

22. On the basis of the preliminary site investigation prepared by Geotechnical Consultants Australia dated 18 September 2023 (PSI Report), I am satisfied that the site is suitable for the purpose of the centre-based child care facility, subject to the recommendations in the PSI Report that are incorporated in the agreed conditions of consent.

Conclusion

23. 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.

24. 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.

25. The Court notes that:

1. The Respondent, as the relevant consent authority, has approved under section 38(1) of the EPA Regulation, the Applicant amending Development Application DA-156/2024 in accordance with the following amended plans (Amended Development Application):

1. Architectural Plans prepared by: Archizen Architects, Job No: 2304A, Issue: C:

1. site plan, Drawing No: LEC-24, Dated 6/3/2025;

2. basement floor (L0) plan, Drawing No: LEC-02, Issue C1, Dated 25/3/2025;

3. ground floor (L1) plan, Drawing No: LEC-03, Dated 6/3/2025;

4. upper floor (L2) plan, Drawing No: LEC-04, Dated 6/3/2025;

5. south (Lewin Cres) elevation, Drawing No: LEC-05, Dated 6/3/2025;

6. east (Longstaff Ave) elevation, Drawing No: LEC-06, Dated 6/3/2025;

7. north elevation, Drawing No: LEC-07, Dated 6/3/2025;

8. west elevation, Drawing No: LEC-08, Dated 6/3/2025;

9. section a, Drawing No: LEC-09, Dated 6/3/2025;

10. section b, Drawing No: LEC-10, Dated 6/3/2025;

11. overall plan: basement (L0), Drawing No: LEC-11, Dated 6/3/2025;

12. overall plan: ground floor (L1), Drawing No: LEC-12, Dated 6/3/2025;

13. overall plan: upper floor (L2), Drawing No: LEC-13, Dated 6/3/2025;

14. Longstaff Avenue streetscape, Drawing No: LEC-18, Dated 6/3/2025;

15. Lewin Crescent streetscape, Drawing No: LEC-19. Dated 6/3/2025;

16. demolition plan, Drawing No: LEC-21, Dated 6/3/2025;

17. roof plan, Drawing No: LEC-22, Dated 6/3/2025;

18. acoustic fencing, Drawing No: LEC-23, Dated 6/3/2025;

2. Landscape Plans, prepared by: Conzept Landscape Architects, Job ref: LPS34, Revision: I, Dated: 06/03/2025;

3. Amended Waste Management Plan prepared by: Dickens Solutions, Ref: 23192, Dated: December 2024;

4. Traffic & Parking Impact Assessment prepared by: Hemanote Consultants, Dated: 12 December 2023;

5. Addendum Traffic & Parking Report – Section 34 prepared by Hemanote Consultants, Dated 14 February 2025;

6. Plan of Management prepared by Ology, Version 1.6, Dated: March 2025;

7. Environmental Noise Impact Assessment prepared by Day Design Pty Ltd, Ref: 7868-1.1R, Dated: 13 February 2024;

8. Preliminary Site Investigation prepared by Geotechnical Consultants Australia, Ref: E23145-1, Dated: 18 September 2023.

2. The Applicant filed the amended plans and other documents listed above with the Court on 3 April 2025.

Orders

26. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to No. DA-156/2024, as amended, for the for the demolition of existing buildings and structures, construction and operation of a two-storey childcare centre over basement accommodating 48 children, together with associated facilities, access, and landscaping, on land legally described as Lot 112 DP 239234 and known as 1 Lewin Crescent, Chipping Norton NSW 2170, subject to the conditions at Annexure A.

T Horton

Commissioner of the Court

Annexure A (434070, pdf)

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Decision last updated: 11 April 2025