Place Studio Au Pty Ltd v Campbelltown City Council

[2022] NSWLEC 1350

Land and Environment Court

New South Wales

Medium Neutral Citation:

Place Studio Au Pty Ltd v Campbelltown City Council [2022] NSWLEC 1350

Hearing dates:

Conciliation conference on 27 June 2022

Date of orders:

6 July 2022

Decision date:

06 July 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

See orders at [13]

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Campbelltown Local Environmental Plan 2015, cll 2.3, 2.6, 4.1, 4.1C, 4.3, 4.4, 7.4

Education and Care Services National Regulations, regs 107, 108

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 22, 23

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, sch 9

Texts Cited:

Campbelltown (Sustainable City) Development Control Plan 2015

NSW Department of Planning and Environment, Child Care Planning Guideline, (August 2017)

Category:

Principal judgment

Parties:

Place Studio Au Pty Ltd (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
D Rod (Solicitor) (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Spectrum Legal Group (Applicant)
Bartier Perry Pty Limited (Respondent)

File Number(s):

2021/259101

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application No 260/2020/DA-C (DA) by Campbelltown City Council (Council). The DA sought consent for subdivision of land to create four allotments and construction of a 104 place child care centre on proposed Lot 4. This would all occur on existing Lot 1 in DP 719990, otherwise known as 223 Eagleview Road Minto (site).

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 27 June 2022. I presided over the conciliation conference.

3. At the conciliation conference, the parties outlined an 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 development application, as amended, subject to conditions.

4. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and how they have been satisfied in a jurisdictional statement (received by email 24 June 2022 and updated 30 June 2022). Mindful of this advice I find as follows in regard to jurisdiction:

6. In regard to Campbelltown Local Environmental Plan 2015 (CLEP 2015):

1. Land subdivision is permissible with consent under cl 2.6. The proposed subdivision accommodates the minimum lot size controls at cll 4.1 and 4.1C.

2. The Site is zoned R2 Low Density Residential under CLEP 2015. I have had regard to the zone objectives as required under cl 2.3. Centre-based child care facilities are permissible with consent in the zone.

3. The height of the proposal complies with cl 4.3.

4. The proposed floor space ratio is compliant with cl 4.4.

5. The applicant has provided a Salinity Assessment Report dated 2 February 2022. Council has indicated that, as a consequence, it is satisfied with respect to the matters at cl 7.4(3). I have considered the matters at cl 7.4(3) and based on Council’s position I am satisfied in regard to the matters at cl 7.4(3).

7. In regard to State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP Education):

1. I accept that SEPP Education continues to apply in regard to this application (due to savings provisions within Sch 9 of State Environmental Planning Policy (Transport and Infrastructure) 2021.

2. Clause 22 is not triggered as the plans have satisfied regs 107 and 108 of the Education and Care Services National Regulations.

3. Clause 23 provides that prior to the grant of any development consent 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 (Guideline) in relation to the proposed development. The parties agree that the application, as now amended, is consistent with the applicable provisions of the Guideline. I have given appropriate consideration under cl 23 am satisfied the relevant issues are addressed.

8. In regard to State Environmental Planning Policy (Resilience and Hazards) 2021, and in particular s 4.6 and in regard to potential contamination matters:

1. The parties advise that the applicant has provided a Preliminary Site Investigation dated 24 July 2020 specifying the findings of an investigation of the site carried out in accordance with the contaminated land planning guidelines.

2. Council is satisfied that there is no known contamination of the site, and no further investigation of the site is warranted and the site is suitable for the proposed use.

3. The requirements of s 4.6 have been addressed.

9. In regard to other matters for consideration under s 4.15(1) of the EPA Act:

1. The parties have taken me to Campbelltown (Sustainable City) Development Control Plan 2015 (CDCP). Council believes that, subject to conditions, the amended proposal complies with the objectives and controls in the CDCP. I have considered this advice and in turn believe the requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met.

2. The parties advise the proposal was notified in accordance with requirements and three individual objecting submissions were received, as explained in Council’s Statement of Facts and Contentions filed on 5 November 2021. Council is satisfied that the concerns raised by the objectors have been addressed through the amended proposal. I have regard to these objecting submissions in accordance with the requirement of s 4.15(1)(d)(iii) of the EPA Act.

3. I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

10. Based on the above details, 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. 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.

11. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

12. In regard to the amendments to the application, the Court notes:

1. Campbelltown City Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the Development Application Number 260/2020/DA-C.

2. The applicant has uploaded the amended development application to the NSW Planning Portal and filed the amending plans with the Court.

13. The Court orders:

1. The appeal is upheld.

2. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. Development Application Number 260/2020/DA-C for the:

1. Subdivision of land to create 4 allotments, comprising:

1. Lot 1: 508sqm

2. Lot 2: 522sqm

3. Lot 3: 520sqm

4. Lot 4: 2,451sqm

2. Construction of a child care centre on proposed Lot 4, comprising:

1. 104 children, as follows:

- 24 x children 0-2 year old

- 40 x children 2-3 year old

- 40 x children 3-6 year old

2. Reception, lobby, office, laundry, store room, kitchen, board room, parent teacher room, cot rooms, bathrooms, change table/bath

3. Covered outdoor areas, sand pit, stone boulders, artificial turf, wet pour rubber

4. Cut, fill and retaining walls

5. Landscaped planting and open space areas

6. Double driveway

7. Acoustic fencing

8. 31 x basement car parking spaces and 1 x loading zone

9. Basement bin and storage room

10. Pedestrian access ramp and lift

3. Site works, comprising:

1. Drainage of storm water to kerb and gutter under gravity

2. Provision of each lot with a stormwater pit adjacent to the primary boundary piped to the kerb

3. Provision of a stormwater detention tank for the child care centre

4. Removal of all trees from the land

5. Demolition of existing concrete driveway

on land legally described as Lot 1 in Deposited Plan 719990, known as 223 Eagleview Road, Minto is determined by the granting of consent subject to the conditions set out in Annexure “A” to this agreement.

Peter Walsh

Commissioner of the Court

Annexure A (332137, pdf)

**********

Decision last updated: 06 July 2022