Provence Asset Holdings Pty Ltd v Goulburn Mulwaree Council
[2025] NSWLEC 1005
•07 January 2025
Land and Environment Court
New South Wales
Medium Neutral Citation: Provence Asset Holdings Pty Ltd v Goulburn Mulwaree Council [2025] NSWLEC 1005 Hearing dates: Conciliation conference on 13 November 2024 Date of orders: 07 January 2025 Decision date: 07 January 2025 Jurisdiction: Class 1 Before: O’Neill C Decision: The orders of the Court are:
(1) The appeal is upheld.
(2) The applicant is to pay the respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $3,500 payable within 28 days of the date of these orders.
(3) Development Application No. 0224/2324, as amended, for the demolition of all existing structures, consolidation of lots, and the construction of a single storey 120 place childcare centre, 41 car parking spaces and associated works, on land legally described as Lot 1 in Deposited Plan 995523 and Lot 12 in Deposited Plan 581011, known as 26 Long Street, Goulburn, is determined by the grant of development consent, subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPLICATION – childcare centre – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.7
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, s 38
Goulburn Mulwaree Local Environmental Plan 2009
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.61, 6.63,
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119
Category: Principal judgment Parties: Provence Asset Holdings Pty Ltd (Applicant) Goulburn Mulwaree Council (Respondent) Representation: Counsel:
Solicitors:
J Reid (Applicant)
J Walker (Solicitor) (Respondent)
Maddocks (Applicant)
Macpherson Kelley (Respondent)
File Number(s): 2024/197620 Publication restriction: Nil
Judgment
-
COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 0224/2324 for the demolition of all existing structures, consolidation of lots, and the construction of a single storey 120 place childcare centre, 41 car parking spaces and associated works (the proposal), at 26 Long Street, Goulburn (Lot 1 in Deposited Plan 995523 and Lot 12 in Deposited Plan 581011) (the site), by Goulburn Mulwaree Council (the Council).
-
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 13 November 2024. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
-
There are preconditions to the exercise of power to grant development consent for the proposal.
The application is amended
-
The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are:
| Drawing No and Revision | Title | Prepared by | Date | |
| Architectural Plans | ||||
| 1 | Drawing No A000 Issue B | Cover Page | Janssen Designs | 12 September 2024 |
| Drawing No A001 Issue B | Calculations and LEP Controls | 12 September 2024 | ||
| Drawing No A002 Issue B | Site Context Plan | 12 September 2024 | ||
| Drawing No A003 Issue B | Demolition Plan | 12 September 2024 | ||
| Drawing No A004 Issue B | Site Analysis Plan | 12 September 2024 | ||
| Drawing No A005 Issue B | Lot Amalgamation Plan | 12 September 2024 | ||
| Drawing No A006 Issue B | Site Analysis Plan | 12 September 2024 | ||
| Drawing No A007 Issue C | Site Plan / Acoustic Barrier Detail Plan | 11 November 2024 | ||
| Drawing No A008 Issue D | Ground Floor Plan | 13 November 2024 | ||
| Drawing No A009 Issue B | Roof Plan | 12 September 2024 | ||
| Drawing No A010 Issue B | Elevations | 12 September 2024 | ||
| Drawing No A011 Issue B | Elevations | 12 September 2024 | ||
| Drawing No A012 Issue B | Perspective Images | 12 September 2024 | ||
| Drawing No A013 Issue B | Perspective Images | 12 September 2024 | ||
| Drawing No A014 Issue B | Perspective Images | 12 September 2024 | ||
| Drawing No A015 Issue D | Emergency Evacuation Diagram | 13 November 2024 | ||
| Drawing No A016 Issue B | Shadow Diagram 9am 21st June | 12 September 2024 | ||
| Drawing No A017 Issue B | Shadow Diagram 12noon 21st June | 12 September 2024 | ||
| Drawing No A018 Issue B | Shadow Diagram 3pm 21st June | 12 September 2024 | ||
| Drawing No A019 Issue C | Covered Outdoor Area Diagram | 11 November 2024 | ||
| Drawing No A020 Issue C | Cut and Fill Diagram | 13 November 2024 | ||
| Drawing No A021 Issue B | Kitchen Detail Plan | 12 September 2024 | ||
| Drawing No A022 Issue B | Colour and Finishes Schedule | 12 September 2024 | ||
| Drawing No A023 Issue B | Sun Eye Diagrams 1 | 12 September 2024 | ||
| Drawing No A024 Issue B | Sun Eye Diagrams 2 | 12 September 2024 | ||
| Drawing No A025 Issue B | Joinery Details | 12 September 2024 | ||
| Landscape Plans | ||||
| 2 | Drawing No: DA-L101 Revision C | Landscape + Play Item layout Plan: Ground Floor | Canvas Landscape Architects | 14 November 2024 |
| Drawing No: DA-L102 Revision C | Landscape Plan: Ground Floor-West | 14 November 2024 | ||
| Drawing No: DA-L103 Revision C | Landscape Plan: Ground Floor-East | 14 November 2024 | ||
| Drawing No: DA-L104 Revision C | Landscape Typical Details, Proposed Plant Schedule & Maintenance Program | 14 November 2024 | ||
| Stormwater Plans | ||||
| 3 | Drawing No 000 Issue D | Cover Sheet, Notes & Legend | Telford Civil | 14 November 2024 |
| Drawing No. 101 Issue D | Stormwater Concept Plan Ground Level | 14 November 2024 | ||
| Drawing No. 102 Issue D | Pre Development Catchment Plan | 14 November 2024 | ||
| Drawing No. 103 Issue D | OSD Catchment Plan | 14 November 2024 | ||
| Drawing No. 104 Issue D | Post Development WSUD Catchment Plan | 14 November 2024 | ||
| Drawing No. 105 Issue D | Emergency Overflow Plan | 14 November 2024 | ||
| Drawing No. 106 Issue D | OSD/WSUD/RWT Details and Calculations | 14 November 2024 | ||
| Drawing No. 107 Issue D | Drains and Music Model and Results | 14 November 2024 | ||
| Drawing No. 108 Issue D | Pollutant Concentration Comparison TSS, TP& TN | 14 November 2024 | ||
| Drawing No. 109 Issue D | Miscellaneous Details Sheet | 14 November 2024 | ||
| Drawing No. 110 Issue D | External Catchment & Swale Calculations | 14 November 2024 | ||
| Documents | ||||
| 4 | Water Cycle Management Report - Issue B | Telford Civil | 14 November 2024 | |
| 5 | Emergency and Evacuation Report - Version 4 | Early Education Solutions | 13 November 2024 | |
| 6 | Operational Plan of Management | Janssen Designs | 13 November 2024 | |
| 7 | Statement of Environmental Effects | Think Planners | 13 November 2024 | |
| 8 | Amended Environmental Noise Impact Assessment | Day Design Pty Ltd | 14 November 2024 | |
| 9 | Supplementary Traffic and Parking Advice | McLaren Traffic Engineering | 15 November 2024 | |
| 10 | Asbestos Clearance Inspection Report | Sydney Environmental Group | 14 October 2024 | |
| 11 | Waste Management Plan | 27 November 2024 | ||
Pre-conditions to the grant of consent
State Environmental Planning Policy (Biodiversity and Conservation) 2021
-
Chapter 6 Water Catchments of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the proposal as the site is located within the Sydney Drinking Water Catchment. Section 6.61(1) provides that consent must not be granted to development relating to any part of the Sydney Drinking Water Catchment unless the consent authority is satisfied the carrying out of the development would have a neutral or beneficial effect on water quality.
-
Pursuant to s6.61(2), for the purposes of determining whether the carrying out of the development would have a neutral or beneficial effect on water quality, the consent authority must, if the development is a development to which the Neutral or Beneficial Effect on Water Quality Assessment Tool (NorBE Tool) applies, undertake an assessment using the NorBE Tool. Section 6.63 also provides that development consent must not be granted to development on land in the Sydney Drinking Water Catchment unless the consent authority is satisfied the development is consistent with the NorBE Guideline.
-
The stormwater design of the proposal includes a water quality measure to ensure that the development achieves a NorBE on water quality as required by WaterNSW guidelines. Section 3.3 of the Water Cycle Management Report provides a NorBE assessment for the proposed development.
-
On 5 March 2024, the application was referred to WaterNSW pursuant to Part 6.5 of the Biodiversity and Conservation SEPP as the site is located within the Sydney Drinking Water Catchment. On 6 March 2024, WaterNSW issued a request for information in relation to the application.
-
On 3 October 2024, WaterNSW issued a letter stating that it considers that the proposed development can achieve a neutral or beneficial effect (NorBE) on water quality, subject to appropriate conditions.
-
On 14 November 2024, further information was provided to WaterNSW following the conciliation conference as a result of amended plans and material. On 18 November 2024, WaterNSW issued a letter confirming that it considers that the proposed development can achieve a NorBE on water quality, subject to appropriate conditions. These conditions have been included in the Agreed Conditions.
State Environmental Planning Policy (Transport and Infrastructure) 2021
-
On 5 March 2024, the application was referred to Transport for New South Wales (TfNSW) in accordance with s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). The site has a frontage to Sydney Road, which is identified as a classified road. On 14 March 2024, TfNSW issued a letter in response to the application confirming that it has no objections to the proposal, provided the conditions attached to its letter are included in any development consent issued.
-
On 5 March 2024, the application was referred to Essential Energy in accordance with s 2.48 of the Transport and Infrastructure SEPP. On 27 March 2024, Essential Energy provided its comments, advising that it has no comments to make as to any potential safety risks arising from the proposed development.
State Environmental Planning Policy (Resilience and Hazards) 2021
-
Chapter 4 (Remediation of Land) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the Site. Section 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.
-
The site was previously used as a preschool. Based on historical records, there is no suggestion that the site would have been contaminated. There are no immediate site conditions which would require remediation of the site.
Goulburn Mulwaree Local Environmental Plan 2009 (LEP 2009)
-
The site is zoned R1 General Residential under Goulburn Mulwaree Local Environmental Plan 2009 (LEP 2009) and the proposal is a nominate use permissible with consent in the R1 zone. The objectives of the zone, to which regard must be had, are:
• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To maintain the economic strength of commercial centres by limiting the retailing of food and clothing.
-
Clause 7.1A Earthworks of LEP 2009 applies to the proposal as it involves cut and fill works to the site. The extent of cut is no more than 1m deep. There are also small areas of fill required, predominantly in the location of the car park. As the proposed earthworks are minor, it is unlikely that the proposed development will disrupt or have any detrimental effect on existing drainage patterns and soil stability, the proposal will not have an adverse effect on any future use or redevelopment of the site, nor adjoining properties, and it is unlikely that the proposal will disturb Aboriginal objects or other relics. The quality of the fill and/or soil to be excavated and the source or destination of this material is the subject of conditions.
Conclusion
-
I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 11 December 2024 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.
Orders
-
The orders of the Court are:
The appeal is upheld.
The applicant is to pay the respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $3,500 payable within 28 days of the date of these orders.
Development Application No. 0224/2324, as amended, for the demolition of all existing structures, consolidation of lots, and the construction of a single storey 120 place childcare centre, 41 car parking spaces and associated works, on land legally described as Lot 1 in Deposited Plan 995523 and Lot 12 in Deposited Plan 581011, known as 26 Long Street, Goulburn, is determined by the grant of development consent, subject to the conditions at Annexure A.
………………………….
Susan O’Neill
Commissioner of the Court
Annexure A
**********
Decision last updated: 07 January 2025
0
0
7