Nehme v City of Parramatta Council

[2024] NSWLEC 1708

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Nehme v City of Parramatta Council [2024] NSWLEC 1708

Hearing dates:

Conciliation Conference on 25 October 2024

Date of orders:

05 November 2024

Decision date:

05 November 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. 832/2022, as amended, for the demolition of existing structures, tree removal and construction of a three storey, 48 place childcare centre with basement parking for 12 vehicles on land legally described as Lot 14 in Deposited Plan 939772 and known as 62 Boundary Street, Parramatta, subject to the conditions of consent in Annexure A.

Catchwords:

APPEAL – Development application – childcare centre – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.17, 8.7, 8.10

Land and Environment Court Act 1979, ss 17, 34

Education and Care Services National Regulations 2011, regs 107, 108

Parramatta Local Environmental Plan 2011, cll 4.3, 4.4, 6.1, 6.2

Parramatta Local Environmental Plan 2023, cl 1.8A

State Environmental Planning Policy Amendment (Water Catchments) 2022

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 10, Pt 10.3, s 6.65

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.25, 3.26

Texts Cited:

Parramatta Development Control Plan 2011

Child Care Planning Guideline

Category:

Principal judgment

Parties:

Elias Nehme (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
G Pavlis (Solicitor) (Applicant)
K Law (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicant)
Matthews Folbigg Pty Limited (Respondent)

File Number(s):

2023/317097

Publication restriction:

No

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application No. 832/2022 (Development Application) seeking consent for the demolition of existing structures, tree removal and the construction of a three storey, 48 place childcare centre with basement parking for 12 vehicles on land legally described as Lot 14 in Deposited Plan 939772 and known as 62 Boundary Street, Parramatta (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 20 October 2022.

4. On 18 April 2023, the Parramatta Local Planning Panel resolved to refuse the Development Application.

5. On 28 April 2023, the respondent issued a Notice of Determination refusing the Development Application.

6. On 6 October 2023, the applicant commenced proceedings in relation to the refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 May 2024 and adjourned on multiple occasions. The conciliation conference was terminated on 24 June 2024 and the matter listed for hearing.

8. On 10 October 2024, the Court granted the applicant leave to rely on amended plans and documents (Amended Development Application).

9. Prior to the hearing, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

10. The decision agreed upon by the parties is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

11. 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.

Jurisdictional considerations

12. 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). I form this state of satisfaction for the reasons that follow.

Owners’ consent

13. The applicant is the registered proprietor of the Subject Land and provided owners consent to the Development Application as lodged (see Tab 15 of the Class 1 Application).

State Environmental Planning Policy (Resilience and Hazards) 2021

14. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated; and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

15. Section 4.6(2) of the RH SEPP provides that “before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines”. Relevantly, subs (4)(c) includes land to the extent to which it is proposed to carry out development for child care purposes in relation to which there is no (or incomplete) knowledge as to whether certain development for a purpose of carrying out activities that may cause contamination had been carried out and on which it would have been lawful to carry out such development.

16. The Amended Development Application includes a Preliminary Site Investigation prepared by Environmental Consulting Service (ECS) dated 30 September 2022 (PSI) and Remedial Action Plan prepared by ECS dated 29 May 2024 (RAP). The PSI concludes:

1. No environmental issues, risks or exposures considered to be of significant concern were observed at the site inspection.

2. The potential for significant contamination of the soil and groundwater within the Subject Land is considered to be low and the Subject Land is suitable for the proposed development and land use, provided that the recommendations contained in the PSI are implemented during the construction certificate phase.

3. The process for removal of impacted surface soils and validation of the underlying natural clay should be documented in accordance with a remedial action plan.

17. The respondent is satisfied with the RAP and condition PA0001 requires compliance with the RAP.

18. The parties agree that the requirements of subss 4.6(1) and (2) of the RH SEPP are satisfied.

19. Having regard to the PSI, RAP and Agreed Conditions (namely ECA0006, PA0001 and EWD0001), I am satisfied that the Subject Land is suitable for the purposes for which development consent is sought for the purposes of s 4.6 of the RH SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

20. The Amended Development Application proposes the removal of one tree to facilitate the proposed development.

21. The parties agree that as the Amended Development Application seeks development consent to remove the identified trees, Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) relating to permits, is not enlivened due to the BC SEPP regulating a different and separate scheme to seeking development consent under the EPA Act.

22. The parties agree, and I accept, that there is no matter that would prevent consent being granted for the removal of the identified trees proposed to facilitate the proposed development.

23. Chapter 10 (now repealed) of the BC SEPP applies to the Amended Development Application on the basis that:

1. the Development Application was lodged prior to the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022 on 21 November 2022 (see s 6.65 of the BC SEPP); and

2. the parties agree that the Subject Land is located within the Sydney Harbour Catchment.

24. In respect of the matters required to be considered pursuant to Div 2 of Pt 10.3 of the BC SEPP, the parties agree that:

1. The applicant has submitted Stormwater and Erosion and Sediment Control Plans, and the design of the Amended Development Application incorporates onsite stormwater detention, water quality measures and water conservation measures outlined in the engineering plans, including OSD tanks, stormwater pits, rainwater tanks and erosion and sediment control measures such that the Amended Development Application will have a neutral or beneficial effect on the water entering a waterway.

2. Condition DB0013 which requires that the proposed development must implement water quality treatment devices to manage surface runoff water to Boundary Road in line with section 3.3.6.1 of the Parramatta Development Control Plan 2011 (PDCP). These PDCP requirements contain similar considerations to those in the BC SEPP and were incorporated into the assessment.

3. Other conditions of consent generally dealing with stormwater management, on-site detention, water treatment for stormwater and stormwater disposal are contained in Conditions EPA0068, DB0001, DB0007, DB0012, DB0013, DC0006, DD0003, EWD0013, DE0003 and DE0005.

4. The Subject Land does not discharge to any creeks, waterways, riparian corridors, or foreshores.

5. The Subject Land is not located in a flood prone area. The applicant is required to implement on-site detention systems to manage potential downstream flood impacts.

6. The Subject Land is not located near any waterways, riparian corridors, foreshores or recreational land.

State Environmental Planning Policy (Transport and Infrastructure) 2021

25. Section 3.22 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP) requires concurrence of the Regulatory Authority in the event that the proposed development does not comply with the unencumbered indoor or unencumbered outdoor space requirements of regs 107 and 108 of the Education and Care Services National Regulations.

26. The proposed development will provide for 48 children. Under reg 107, the proposed development requires 156m² of unencumbered indoor space and 179m² is provided. Under reg 108, the proposed development requires 336m² of unencumbered outdoor space and 343m² is provided. As the proposed development complies with regs 107 and 108, concurrence from the Regulatory Authority is not required.

27. Section 3.23 of the TISEPP relevantly provides that before determining a development application for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline (Guidelines) in relation to the proposed development.

28. The proposed development’s compliance with the Guidelines has been addressed in the Statement of Environmental Effects prepared by Think Planners dated 4 October 2022 (SEE) (see pp 31-55).

29. In determining the Amended Development Application, I confirm that I have taken into consideration the applicable provisions of the Guidelines in relation to the proposed development for the purpose of s 3.23 of the TISEPP.

30. Section 3.25 of the TISEPP provides that development consent must not be granted for the purposes of a centre-based childcare facility in Zone R2 Low Density Residential if the floor space ratio (FSR) for the building on the site of the facility exceeds 0.5:1. However, this does not apply if another environmental planning instrument or a development control plan sets a maximum FSR for the centre-based child care facility. The Subject Land has a maximum FSR of 0.8:1 under the Parramatta Local Environmental Plan 2011 (PLEP). The proposed development has a FSR of 0.67:1 and therefore complies with cl 4.4 of the PLEP and is not inconsistent with s 3.25 of the TISEPP.

31. Section 3.26 of the TISEPP sets out non-discretionary development standards for the purpose of subss 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) provides the requirements for indoor or outdoor space.

32. The Amended Development Application provides at least 3.25m² of unencumbered indoor play space and at least 7m² of unencumbered outdoor play space per child which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Services National Regulations.

33. In determining the Amended Development Application, I am satisfied that the matters outlined in Ch 3 of the TISEPP have been considered and addressed.

Education and Care Services National Regulations

34. The Education and Care Service National Regulations provides extensive controls and requirements in addition to those set out in the TISEPP and PLEP.

35. Compliance with the Education and Care Services National Regulations is assessed at pp 55-57 of the SEE.

Parramatta Local Environmental Plan 2011

36. The parties agree that the PLEP applies to the Amended Development Application on the basis that the Development Application was lodged on 20 October 2022 and not finally determined before the commencement of Parramatta Local Environmental Plan 2023 (PLEP 2023) (see cl 1.8A of PLEP 2023).

37. The Subject Land is zoned R4 High Density Residential under the PLEP. Accordingly, the proposed development, being a “centre-based child care facility” is permissible with consent in the R4 zone. I have had regard to the zone objectives which are extracted below:

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

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

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

•  To provide opportunity for high density residential development close to major transport nodes, services and employment opportunities.

•  To provide opportunities for people to carry out a reasonable range of activities from their homes if such activities will not adversely affect the amenity of the neighbourhood.

38. Clause 4.3 of the PLEP prescribes a maximum building height of 11m for the Subject Land. The parties agree that the Amended Development Application complies with this standard.

39. As set out at [30], cl 4.4 of the PLEP prescribes a maximum FSR of 0.8:1 that applies to the Subject Land. The Parties agree that the Amended Development Application complies with this standard.

40. Pursuant to cl 6.1 of the PLEP, the Subject Land is identified as being affected by Class 5 acid sulfate soils. The parties agree that the proposed works are unlikely to lower the water table below 1m and that this provision is otherwise satisfied.

41. Pursuant to cl 6.2 of the PLEP, before granting development consent for earthworks, the consent authority must consider specified matters. Having regard to the findings of the PSI (see [16]) and the SEE (pp 61-62), I am satisfied that the matters listed in cl 6.2(3) of the PLEP have been considered.

Parramatta Development Control Plan 2011

42. The parties are satisfied that all relevant provisions of the Parramatta Development Control Plan 2011 have been taken into consideration in the assessment and determination of the Amended Development Application (see also pp 63-80 of the SEE).

Remaining matters under s 4.15(1) of the EPA Act

43. The parties agree that the matters listed in s 4.15(1)(b), (c) and (e) are considered generally in the SEE and there is no impediment to the approval of the Amended Development application having regard to those matters.

44. In respect of s 4.15(1)(d) of the EPA Act, the Development Application was publicly exhibited between 28 October 2022 and 11 November 2022. Ten written submissions were received, and one additional submission was received outside of the notification period.

45. I am satisfied that the written submissions have been taken into consideration in the assessment and determination of the Amended Development Application.

46. Finally, the parties note that Condition 1 requires the applicant to obtain development consent for, and the benefit of, a proposed downstream easement as a deferred commencement condition (see also Supplementary Statement of Environmental Effects prepared by Think Planners dated 13 May 2024).

47. The parties agree that s 4.17(f) of the EPA Act expressly permits works offsite to be incorporated in a consent by way of condition and an imposed deferred commencement condition is appropriate in the circumstances.

48. On the basis that the PLEP (as it applied at the time of the lodgement of the Development Application) does not contain an essential services clause, I am satisfied that this is a matter for the parties and not a matter of jurisdiction.

Conclusion

49. 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.

50. 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.

Orders

51. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. 832/2022, as amended, for the demolition of existing structures, tree removal and construction of a three storey, 48 place childcare centre with basement parking for 12 vehicles on land legally described as Lot 14 in Deposited Plan 939772 and known as 62 Boundary Street, Parramatta, subject to the conditions of consent in Annexure A.

N Targett

Commissioner of the Court 

Annexure A

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Amendments

08 November 2024 - Correction to the date of Annexure A

Decision last updated: 08 November 2024