Nemra v Campbelltown City Council

[2024] NSWLEC 1236

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nemra v Campbelltown City Council [2024] NSWLEC 1236

Hearing dates:

Conciliation conference on 8 February, 5, 12, 20 and 27 March and 3 April 2024

Date of orders:

07 May 2024

Decision date:

07 May 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the amount of $13,500, such amount to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development Application No 1772/2023/DA-C as amended for the demolition of existing structures and construction of a centre based child care facility on land at 124 Waminda Avenue, Campbelltown 2560, legally described as Lot 8 DP 230885, is approved subject to the conditions included in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – centre based child care facility - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.15, Sch 1 Div 2 cl 7

Land and Environment Court Act 1979, s 34

Campbelltown Local Environmental Plan 2015, cll 2.2, 2.3, 2.7, 4.1C, 4.3, 7.1, 7.4, 7.10

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.21

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:

Campbelltown (Sustainable Development) Development Control Plan 2015

Campbelltown Community Participation Plan 2019

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

Category:

Principal judgment

Parties:

Abraham Nemra (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
A Spizzo (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Landerer & Company (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/224690

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application 1772/2023/DA-C (the DA) for the demolition of existing structures and construction of a centre based child care facility on Lot 8 in Deposited Plan 230885, known as 124 Waminda Avenue, Campbelltown 2560 (the site).

2. The proposal as lodged and advertised provided for a two storey centre-based child care facility for between 65 and 67 children and at grade car parking for ten vehicles, including one accessible space.

3. 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 8 February 2024. I presided over the conciliation conference, which began with an on-site view. There were no objectors to the proposed development.

4. The s 34 conciliation conference was adjourned to 5 March 2024 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. The s 34 conciliation conference was further adjourned a number of times to enable the parties to come to an agreement over the proposed development, including finalising the amended plans.

5. At the conciliation conference on 3 April 2024 the parties indicated that they had generally reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

6. A signed s 34 agreement with Annexure A was filed with the Court on 11 April 2024, with amended plans and additional material (the amended DA) as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

7. The parties advise that a number of changes have been made to the DA, including:

1. Reduction in the number of children from 65 to 50 to enable sufficient unencumbered indoor and outdoor space and provide an acceptable educator to child ratio;

2. Changes to the stormwater management of the proposed development;

3. Provision of deep soil areas on the side boundaries and in the front setback area of the site;

4. Changes to the proposed car parking in the front setback area of the site, and utilisation of two on-street car parking spaces for staff;

5. Resolution of acoustic fencing on rear and northern boundaries of the site; and

6. Amended Plan of Management for the proposed development.

8. 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. 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.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows below.

Jurisdictional Matters

Owner’s consent

11. The parties advise that owner’s consent has been provided in respect of the DA lodged for the site.

Community Participation (Sch 1, Div 2, cl 7(1)) - Environmental Planning and Assessment Act1979

12. The DA was exhibited between 31 May and 21 June 2023 in accordance with the requirements of the Campbelltown Community Participation Plan 2019. No submissions were received in response to that notification.

Conditions

13. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Evaluation under Section 4.15 - Environmental Planning and Assessment Act 1979

14. The parties agree that the amended DA can be approved taking into consideration the matters in subss 4.15(b) to (e) of the EPA Act, and that matters relevant to subss 4.15 (b), (c) and (d) are considered generally in the Statement of Environmental Effects submitted with the DA.

Campbelltown Local Environmental Plan 2015

15. The Campbelltown Local Environmental Plan 2015 (LEP) is the relevant local environmental planning instrument that applies to the site. Under the LEP provisions:

1. The site is zoned R2 Low Density Residential pursuant to cl 2.2 of the LEP; and

1. Pursuant to cl 2.3 of the LEP the proposed development is permissible with consent in the R2 zone; and

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

2. Clause 2.7 of the LEP provides that the demolition of a building or work requires development consent.

3. Clause 4.1C of the LEP prescribes that the area of the lot or the site must be equal to or greater than 800m² for the purpose of a centre based child care facility; and

1. The parties advise that the survey of the site dated 27 February 2023 prepared by Ensure Consulting Pty Ltd indicates the lot size of the site is 992.9m².

4. Pursuant to cl 4.3 of the LEP the maximum height of buildings on the site is 8.5 metres; and

1. The height of the proposed development is less than 8.5 metres, and thus complies with cl 4.3.

5. Clause 7.1 of the LEP relates to earthworks. The parties advise that the proposed development does not involve significant bulk earthworks or excavation; and

1. The parties agree that the proposed development meets the requirements and objectives of cl 7.1 of the LEP.

6. Clause 7.4 of the LEP relates to salinity. The parties agree that the proposed development meets the objectives of this clause.

7. Clause 7.10 of the LEP relates to essential services, and provides that development consent must not be granted for development unless the consent authority is satisfied, amongst other matters, that stormwater drainage or on-site conservation is available or adequate arrangements have been made to make them available when required; and

1. The parties agree that the submitted DRAINS modelling, and stormwater plans prepared by Nemco Design Pty Ltd dated 19 February 2024 demonstrate that adequate stormwater drainage is proposed for the development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) seeks to manage and promote integrated catchment management policies within the Georges River Catchment. The site is located in the Georges River Catchment and is subject to broad planning principles under the Biodiversity SEPP; and the parties advise that:

1. the Applicant’s DRAINS modelling, and stormwater plans prepared by Nemco Design Pty Ltd dated 19 February 2024, for the proposed development demonstrate that adequate arrangements have been made for stormwater drainage and that the OSD design is suitable for the proposed development; and

2. The Court can be satisfied that the effect the proposed development will have on the Georges River Catchment complies with ss 6.6 and 6.21 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and 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

1. The parties advise that the conclusions in the Remediation Action Plan prepared by Geotechnical Consultants Australia dated 13 March 2024 (the RAP), confirm that the site can be made suitable for the proposed development and intended use of the site, subject to the implementation and completion of the measures outlined within the RAP, which is required by the conditions of consent; and

2. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

18. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW. Section 3.26 of the Transport and Infrastructure SEPP contains non-discretionary development standards for centre based child care centres; and

1. The parties submit that the reduction in children from 65 to 50 (identified in the Plan of Management dated 28 March 2024), enables sufficient unencumbered indoor and outdoor space and provides an acceptable “educator to child” ratio;

2. The parties advise that the amended DA complies with ss 3.22, 3.23 and 3.26 of the Transport and Infrastructure SEPP.

Education and Care Service National Regulations 2011

19. The Education and Care Services National Regulations 2011 provides extensive controls and requirements in addition to that of Local Environmental Plans and Development Control Plans and includes licensing and approvals processes, including documentation requirements; facilities and equipment requirements; staffing requirements; child number requirements; operational requirements; administrative requirements; and probity check requirements; and

1. The parties advise that the amended DA satisfies the requirements of the Education and Care Services National Regulations 2011.

Child Care Planning Guideline 2021

20. The Child Care Planning Guideline 2021 establishes the assessment framework to deliver consistent planning outcomes and design quality for centre based child care facilities in NSW; and

1. The parties advise that the amended DA satisfies the requirements of the Child Care Planning Guideline 2021.

Campbelltown (Sustainable City) Development Control Plan 2015

21. The Campbelltown (Sustainable City) Development Control Plan 2015 (the DCP) applies to the site; and

1. The parties advise that they have considered the applicable provisions of the DCP and are satisfied that the proposed development is generally compliant or, where compliance is not achieved with the DCP, that the DA is nevertheless considered to be satisfactory.

Conclusion

22. Having considered the advice of the parties provided above at [11-21], I am satisfied that:

1. The Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. Approval of the proposed development is in the public interest.

23. 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.

24. 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.

25. The Court notes:

1. That Campbelltown City Council, as consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No 1772/2023/DA-C made on 11 April 2024 to rely on the documents and plans specified below (the amended development application):

Plan Detail	Job Number	Prepared by	Date
Demolition Plan, Revision B	23088	Nemco Design Pty Ltd	12/02/2024
Site Plan & Roof Plan, Site Analysis Plan, Revision B	23088	Nemco Design Pty Ltd	12/02/2024
Waste Management Plan and Sediment & Erosion Control Plan, Revision B	23088	Nemco Design Pty Ltd	12/02/2024
Proposed Ground Floor Plan, Revision B	23088	Nemco Design Pty Ltd	12/02/2024
Proposed First Floor Plan, Revision B	23088	Nemco Design Pty Ltd	12/02/2024
Elevations – Part 1, Revision B	23088	Nemco Design Pty Ltd	12/02/2024
Elevations – Part 2, Revision B	23088	Nemco Design Pty Ltd	12/02/2024
Section 1 & Driveway Sections, Revision B	23088	Nemco Design Pty Ltd	12/02/2024
Schedule of Materials & Finishes, Revision B	23088	Nemco Design Pty Ltd	12/02/2024
3D Cut & Fill Plan, Revision B	23088	Nemco Design Pty Ltd	12/02/2024
Streetscape View & Front Fence Elevation, Revision B	23088	Nemco Design Pty Ltd	12/02/2024
Landscape Plan – Ground Floor, Drawing No: 2727.GD.01, Revision C	N/A	Greenland Design Landscape Architects	17/02/2024
Landscape Plan – First Floor, Drawing No: 2727.GD.02, Revision C	N/A	Greenland Design Landscape Architects	17/02/2024
Landscape Details & Specification, Drawing No: 2727.GD.03, Revision C	N/A	Greenland Design Landscape Architects	17/02/2024
Landscape Details & Specification, Drawing No: 2727.GD.04, Revision C	N/A	Greenland Design Landscape Architects	17/02/2024
Stormwater – General Notes, Revision B	23088	Nemco Design Pty Ltd	19/02/2024
Stormwater Drainage Plan – Roof Plan, Revision B	23088	Nemco Design Pty Ltd	19/02/2024
OSD Outlet – Typical Section, Revision B	23088	Nemco Design Pty Ltd	19/02/2024
OSD Calculation, Revision B	23088	Nemco Design Pty Ltd	19/02/2024
Stormwater Detail, Revision B	23088	Nemco Design Pty Ltd	19/02/2024
Stormwater Details, Revision B	23088	Nemco Design Pty Ltd	19/02/2024

Report	Prepared by	Date
Acoustic Report for proposed child care centre at No. 124 Waminda Ave, Campbelltown, Reference No: 2023-114 Rev.3	Acoustic Noise & Vibration Solutions P/L	21/02/2024
Arboricultural Impact Assessment, Version 2	Tree Survey Pty Limited	19/02/2024
Plan of Management, Version 3	28 March 2024, Version 4
Remediation Action Plan	Geotechnical Consultants Australia	13 March 2024

26. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the amount of $13,500, such amount to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. Development Application No 1772/2023/DA-C as amended for the demolition of existing structures and construction of a centre based child care facility on land at 124 Waminda Avenue, Campbelltown 2560, legally described as Lot 8 DP 230885, is approved subject to the conditions included in Annexure A.

G Kullen

Acting Commissioner of the Court

2023.224690 Annexure A

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Decision last updated: 07 May 2024