Old Northern Investments Pty Ltd (Formerly known as Cyprto Property Pty Ltd) v The Hills Shire Council

[2019] NSWLEC 1309

Land and Environment Court

New South Wales

Medium Neutral Citation:	Old Northern Investments Pty Ltd (Formerly known as Cyprto Property Pty Ltd) v The Hills Shire Council [2019] NSWLEC 1309
Hearing dates:	Conciliation conference on 2 July 2019
Date of orders:	03 July 2019
Decision date:	03 July 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See [13] below
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference –childcare centre for 56 places – noise impact – traffic impact risk mitigation – car park adequacy – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hills Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy No 55 —Remediation of Land
Texts Cited:	Child Care Planning Guidelines 2017 Hills Development Control Plan 2012
Category:	Principal judgment
Parties:	Old Northern Investments Pty Ltd (Applicant) The Hills Shire Council (First Respondent)
Representation:	Counsel: M Staunton (Respondent)   Solicitors: E Flemming, Swaab (Applicant) A Seton, Marsdens (Respondent)
File Number(s):	2018/339376
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) 106/2019/HA by The Hills Shire Council (hereafter the Council) to remove trees, demolish existing structures and construct a 56 place child care centre, with basement parking for 17 spaces and drainage at Lot 11 DP 135961, also known as 155 Old Northern Road, Baulkham Hills (hereafter the site).

2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 2 July 2019. I presided over the conciliation conference. There were no objectors heard at this conciliation, although the Court acknowledges that two submissions in objection were heard at the onsite viewing prior to the hearing on 1 July 2019, which was adjourned to allow the parties to enter into this agreement. The issues raised by objectors regarding traffic including flow projections and capacity, overlooking, height and character, are resolved to the parties’ satisfaction.

4. At the conciliation conference, the Court granted leave to rely on amended plans for a 56 place child care centre with basement car parking for 17 spaces, of which 8 spaces are for staff and 9 spaces are for visitors (including those dropping off and picking up children). Based on these amended plans, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA 106/2019/HA with conditions.

5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to DA 106/2019/HA under appeal with conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP Child Care); State Environmental Planning Policy No 55—Remediation of Land (SEPP Remediation); Hills Local Environmental Plan 2012 (HLEP); and Hills Development Control Plan 2012 (HDCP). The parties agree that the amended plans and conditions of consent relate to the merits of the proposal.

7. The parties agree that the requirements of the SEPP Child Care and SEPP Remediation are complied with based on the amended plans and conditions of consent, which are consistent with the relevant studies undertaken to support the DA. The site is currently used for residential purposes and the proposed development satisfies the spatial play requirements for a 56 place child care centre.

8. The parties agree that the relevant provisions of the HLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The site is located within an R2 Low Density Residential zone. The proposed child care facility is permissible in the zone and as proposed is not inconsistent with the zone objectives.

9. The amended plans and conditions of consent address any potential traffic and acoustic impact from Old Northern Road. The measures adopted in the proposed development are consistent with the traffic and acoustic reports, including a 1.1m crash barrier and 2.1m high acoustic barrier/fence respectively, around the northern (part), western and southern (part) boundaries of the site. The parties have confirmed that there are no amenity impacts to adjoining properties or to children at play as a consequence of the boundary fencing proposed.

10. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the HDCP are resolved to the satisfaction of the parties. The mitigation of traffic risk to the site by the proposed boundary fencing adjoining Old Northern Road, results in the HDCP requirement for play space to be excluded from the front of the site as not pressed. The provision of waste management services onsite and outside of centre hours, adequate car parking arrangements and sufficient landscaping has satisfied the parties of the requirements of the HDCP.

11. I am satisfied that there are no jurisdictional impediments to this agreement and that the DA 106/2019/HA, should be granted based on the amended plans and conditions of consent, as it satisfies the requirements of s 4.15(1) of the EPA Act 1979.

12. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

13. The Court orders:

1. The Applicant is granted leave to amend its development application to:

1. rely upon the following plans:

DRAWING NO	DESCRIPTION	REVISION	DATE
01	Compliance Table	E	01/07/2019
02	Site Plan	E	01/07/2019
03	Site Analysis Plan	E	01/07/2019
04	Lower Ground/Basement Level	E	01/07/2019
05	Ground Floor Level	E	01/07/2019
06	Elevations	E	01/07/2019
07	Sections	E	01/07/2019
08	Shadow Diagrams Winter Solstice	E	01/07/2019
09	3D Perspectives	E	01/07/2019
10	Schedule of Colours and Materials	E	01/07/2019
11	Calculations Plan	E	01/07/2019
12	Evacuation Plan	E	01/07/2019
13	Solar Study	E	01/07/2019
15	Additional Sections	E	01/07/2019
16	Kitchen Details	E	01/07/2019
17	Meal Preparation Details	E	01/07/2019
18	Crash Barrier Detail	E	01/07/2019
19	Acoustic Wall Detail	E	01/07/2019
L-01	Landscape Concept Ground Floor	F	01/07/2019
L-02	Landscape Concept Basement	F	01/07/2019
L-03	Landscape Concept & 3D Renders	F	01/07/2019
L-04	Southern Elevation and Playground Section	F	01/07/2019
L-05	Northern Boundary Fence Elevation and Section	F	01/07/2019
000	Cover Sheet Plan	C	17/01/2019
101	Stormwater Concept Plan Basement Level Sheet 1 of 2	G	01/07/2019
102	Stormwater Concept Plan Basement Level Sheet 2 of 2	E	01/07/2019
103	Stormwater Concept Plan	I	01/07/2019
104	On-site detention details and calculation sheet	H	01/07/2019
105	Miscellaneous Details Sheet	C	17/01/2019

2. rely on the following material:

Document Title	Prepared by	Date
Noise Impact Assessment and Report, Revision 5	Rodney Stevens Acoustics Pty Ltd	27 June 2019
Plan of Management	1 July 2019

2. The Applicant is to pay the Respondent's costs as agreed to assessed arising under s 8.15(3) of the Environment Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Development Application number DA 106/2019/HA for the removal of identified trees, demolition of existing structures on site, construction of a 56 place child care centre with basement parking containing 17 car parking spaces (9 visitors and 8 staff) and associated drainage on Lot 11 DP 135961 known as 155 Old Northern Road, Baulkham Hills NSW 2153, is approved subject to the conditions set out in Annexure 'A'.

……………………….

Sarah Bish

Commissioner of the Court

Annexure A (451 KB, pdf)

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Decision last updated: 03 July 2019