Redsab Pty Ltd v Central Coast Council

[2023] NSWLEC 1280

Land and Environment Court

New South Wales

Medium Neutral Citation:

Redsab Pty Ltd v Central Coast Council [2023] NSWLEC 1280

Hearing dates:

Conciliation conference held on 22 May 2023

Date of orders:

07 June 2023

Decision date:

07 June 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA/520/2022 seeking consent for the demolition of structures on the site, excavation, tree removal and construction of a ninety-six (96) place two-storey childcare centre with basement car parking and associated works on Lots 77 and 78 in Deposited Plan 20482, also known as 102 to 104 Evans Road, Toukley NSW 2263, is determined by the grant of consent, subject to the conditions in Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 37

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

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

Wyong Local Environmental Plan 2013, cll 2.3, 2.7, 4.3, 4.4, 5.10, 7.1, 7.4

Texts Cited:

Child Care Planning Guidelines, NSW Planning and Environment, 2017

Wyong Development Control Plan 2013

Category:

Principal judgment

Parties:

Redsab Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
J Frangi (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2022/195626

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA/520/2022 (the DA) by Central Coast Council (the Council), which as amended seeks demolition of existing structures, tree removal and the construction of a two-storey, 96-place childcare centre with basement parking on Lots 77 and 78 in Deposited Plan 20482, also known as 102-104 Evans Road, Toukley (the site).

Background

2. The DA was lodged with Council on 11 May 2022. The original DA was notified to residents, with one submission in objection received. The DA was referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

4. The Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The amended DA was renotified, and two submissions in objection were received.

5. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and was held in person. One resident from an adjoining property made an oral submission at the start of the conciliation. The issues raised by the resident objector related to traffic, parking, pedestrian safety, solar access and technical assessment accuracy.

6. Based on the amended DA and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agreed that the contentions of Council have been considered and are resolved. The agreed position of the parties is for the Court to grant consent to the amended Development Application DA/520/2022, with conditions.

7. Pursuant to s 34(3) of the LEC Act, 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 making a determination under s 4.16 of the EPA Act and being satisfied, of all relevant jurisdictional requirements, to grant consent to Development Application DA/520/2022, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following relevant jurisdictional requirements have been specifically addressed:

1. Wyong Local Environmental Plan 2013 (WLEP):

1. Pursuant to cl 2.3 of the WLEP, the proposed development is situated over land zoned R1 General Residential. The proposed development, as described to the Court, is permissible with consent. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the WLEP, and specifically considered are cll 2.7, 4.3, 4.4, 5.10, 7.1, and 7.4.

2. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The DA seeks to remove trees on the site, which engages Ch 2 of the SEPP Biodiversity. The removal of trees is informed by an arboricultural report and landscape plans that support the amended DA, which together with agreed conditions of consent, I am satisfied sufficiently address the relevant objectives, aims, standards and requirements of the SEPP Biodiversity.

3. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):

1. The DA relates to a proposed childcare centre, therefore Ch 3 of the SEPP Infrastructure is engaged. The amended DA, together with agreed conditions of consent satisfy the relevant provisions of the SEPP Infrastructure, and specifically considered are ss 3.23 and 3.26. The requirements of the Child Care Planning Guidelines are sufficiently addressed by the amended DA, which ensure sufficient amenity to users of the childcare centre.

4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the historic use of the site being historically for residential purposes and supporting documents to the amended DA, including a Preliminary Site Investigation Report, prepared by Environmental Consultants Australia, the applicant has provided sufficient evidence, together with the agreed conditions of consent to address the relevant requirements of s 4.6 of the SEPP Resilience.

5. Wyong Development Control Plan 2013 (WDCP):

1. The original DA was publicly notified in accordance with the WDCP, with one submission received. The relevant requirements of the WDCP are generally complied with, based on the amended plans and supporting documents to the amended DA, and described in the agreed conditions of consent.

2. The issues raised by the objector in written and oral submission have been considered by the Council in undertaking its merit assessment of the DA. The Council is satisfied the issues raised by the residents have been addressed, where appropriate by amendments to the DA. The DA satisfies all the relevant planning provisions relating to resident amenity and local area safety. The DA relies on updated traffic and noise assessments to provide sufficient technical accuracy to address any impact relating to the use of the childcare centre, as proposed. The amended design of the driveway and parking area ensure pedestrian safety is addressed and any impacts to solar access of the adjoining properties is consistent with the requirements described in the WDCP, specifically Ch 2.1 and Part 4.4.

9. Pursuant to s 23 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowners.

Grant of consent

10. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the DA and supporting documents.

12. I am satisfied, based on the evidence before me and as explained by the parties, that there are no jurisdictional impediments to this agreement and that Development Application DA/520/2022 be granted consent.

13. 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.

14. The Court notes that:

1. Central Coast Council as the relevant consent authority has agreed, pursuant to clause 37 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending development application DA/520/2022 to rely on the following documents:

1.	Architectural
	Compliance Table	01	Baini Design	D	15 Dec 2022
	Site Context Plan	02	Baini Design	D	15 Dec 2022
	Demolition Plan	03	Baini Design	D	15 Dec 2022
	Site Analysis Plan	04	Baini Design	D	15 Dec 2022
	Site Plan	05	Baini Design	D	15 Dec 2022
	Basement Floor	06	Baini Design	D	15 Dec 2022
	Ground Floor	07	Baini Design	D	15 Dec 2022
	First Floor	08	Baini Design	D	15 Dec 2022
	Elevations	09	Baini Design	D	15 Dec 2022
	Sections	10	Baini Design	D	15 Dec 2022
	Kitchen Details	11	Baini Design	D	15 Dec 2022
	Typical Bottle Prep Detail	12	Baini Design	D	15 Dec 2022
	Typical Nappy Change Detail	13	Baini Design	D	15 Dec 2022
	3D Views	14	Baini Design	D	15 Dec 2022
	Shadow Diagrams	15	Baini Design	D	15 Dec 2022
	Views From The Sun June 21.01	16	Baini Design	D	15 Dec 2022
	Views From The Sun June 21.02	17	Baini Design	D	15 Dec 2022
	Views From The Sun June 21.03	18	Baini Design	D	15 Dec 2022
	Views From The Sun June 21.04	19	Baini Design	D	15 Dec 2022
	Views From The Sun June 21.05	20	Baini Design	D	15 Dec 2022
	Views From The Sun Sept. 21 @ 9AM & 10AM	21	Baini Design	D	15 Dec 2022
	Views From The Sun Sept. 21 @ 11AM	22	Baini Design	D	15 Dec 2022
	Views From The Sun Sept. 21 @ 12AM	23	Baini Design	D	15 Dec 2022
	Views From The Sun Sept. 21 @ 1PM	24	Baini Design	D	15 Dec 2022
	Views From The Sun Sept. 21 @ 2PM	25	Baini Design	D	15 Dec 2022
	Views From The Sun Sept. 21 @ 3PM	26	Baini Design	D	15 Dec 2022
	Views From The Sun Sept. 21 @ 4PM	27	Baini Design	D	15 Dec 2022
	Outdoor Play Area Cal.	28	Baini Design	D	15 Dec 2022
	Fence Details	29	Baini Design	D	15 Dec 2022
	Solar Access Cals Plan	30	Baini Design	D	15 Dec 2022
	Schedule of Finishes	31	Baini Design	D	15 Dec 2022
33.	Landscape
	Landscape Concept	L-01	Outside In Design Group	E	03 Feb 2023
	Plant Schedule + Landscape Specification	L-02	Outside In Design Group	E	03 Feb 2023
	West Elevation [AA] + Typical On Structure Tree Details	L-03	Outside In Design Group	E	03 Feb 2023
	South Elevation [BB] + North Elevation [CC]	L-04	Outside In Design Group	E	03 Feb 2023
	East Elevation [DD]	L-05	Outside In Design Group	E	03 Feb 2023
38.	Stormwater
	Cover Sheet	SW001	Capital Engineering Consultants	E	06 Feb 2023
	Basement Plan	SW010	Capital Engineering Consultants	E	06 Feb 2023
	Site Stormwater Plan	SW020	Capital Engineering Consultants	E	06 Feb 2023
	On-Site Detention Sections & Details	SW021	Capital Engineering Consultants	E	06 Feb 2023
	Erosion and Sediment Control Plan	ER001	Capital Engineering Consultants	E	06 Feb 2023
44.	Traffic & Parking Statement		Hemanote	-	08 Feb 2023
45.	Transport Management Plan		Hemanote	-	Feb 2023
46.	Survey		Axiom Spatial	00	13 Oct 2022
47.	Environmental Noise Impact Assessment		Day Design	D	03 May 2023

2. The applicant has filed the amended application with the Court on 19 May 2023 with the amended plans and documents, which are described in Condition 1 of Annexure A.

15. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/520/2022 seeking consent for the demolition of structures on the site, excavation, tree removal and construction of a ninety-six (96) place two-storey childcare centre with basement car parking and associated works on Lots 77 and 78 in Deposited Plan 20482, also known as 102 to 104 Evans Road, Toukley NSW 2263, is determined by the grant of consent, subject to the conditions in Annexure A.

Sarah Bish

Commissioner of the Court

22.195626 Annexure A

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Decision last updated: 07 June 2023