Redsab Pty Ltd v Liverpool City Council

[2022] NSWLEC 1689

Land and Environment Court

New South Wales

Medium Neutral Citation:

Redsab Pty Ltd v Liverpool City Council [2022] NSWLEC 1689

Hearing dates:

Conciliation conference on 19 September and 3, 14 and 17 November 2022

Date of orders:

13 December 2022

Decision date:

13 December 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs that have been thrown away as a result of the amendment of the applicant for development consent pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $3,000.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA-203/2022 seeking consent for the demolition of structures on the site, excavation, tree removal and construction of a one hundred and twenty-seven (127) place two-storey childcare centre with basement car parking and associated works at 88 – 90 Woodlands Road, Liverpool and 34 Marsden Road, Liverpool, subject to the conditions in the annexure marked "A”.

Catchwords:

DEVELOPMENT APPEAL – Child care centre - conciliation conference – agreement between the parties - orders

Legislation Cited:

Education and Care Services National Regulations 2011

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

Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 4.3, 4.4

State Environmental Planning Policy No. 55 – Remediation of Land, cl 7
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.3, 3.23, 3.26

Texts Cited:

Child Care Planning Guidelines 2017

Liverpool Development Control Plan 2008

Category:

Principal judgment

Parties:

Redsab Pty Ltd ACN 653 196 939 (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2022/181312

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No. DA-203/2022 seeking consent for demolition of existing structures and construction of a 139-place child-care centre with basement car parking and associated vehicle access and landscaping (the Proposed Development) at 88 and 90 Woodlands Road and 34 Marsden Road Liverpool legally described at Lots 3, 2 and 1 in Deposited Plan 23856 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 19 September and 3, 14 and 17 November 2022. I have presided over the conciliation conference.

3. The amendment to the Development Application results in the Proposed Development being for the demolition of structures on the site, excavation, tree removal and construction of a one hundred and twenty-seven (127) place two-storey childcare centre with basement car parking and associated works.

4. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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.

6. 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 the parties explained how the jurisdictional prerequisites have been satisfied in an agreed statement as to jurisdictional prerequisites. I set out a summary of that explanation below.

7. The relevant provisions of environmental planning instruments (EPI) are satisfied as required by s 4.15(1)(a)(i) of the EPA Act. The first relevant EPI is the Liverpool Local Environmental Plan 2008 (LLEP). Compliance with the LLEP is addressed generally in the Statement of Environmental Effects filed with the Class 1 Application. Relevant specific provisions of the LLEP are addressed as follows:

1. The Site is zoned R2 Low Density Residential under the LEP. The Proposed Development is permissible with consent in the R2 zone.

2. The Proposed Development complies with the following development standards:

1. 8.5m maximum building height limit (cl 4.3 LLEP); and

2. maximum floor space ratio (FSR) of 0.5:1 (cl 4.4 LLEP). The Proposed Development proposal provides an FSR of 0.35:1.

8. The next relevant EPI relates to consideration of contamination of land, namely the State Environmental Planning Policy (Resilience and Hazards) 2021 which transferred the provisions of the State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) including cl 7. Clause 7 of SEPP 55 required 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 land is suitable (or will be after undergoing remediation) for the proposed use.

9. The Court is satisfied that consent can be granted because the Preliminary Site Investigation Report prepared by Geotechnical Consultants Australia (GCA) confirms as follows:

1. A site investigation was undertaken on the 14th October 2021 by qualified environmental consultants;

2. During the site inspection, a soil investigation program was undertaken with a judgemental approach in accessing locations across the site to identify areas of contamination;

3. Four (4) soil samples were submitted to a National Association of Testing Authorities, Australia (NATA) accredited laboratory for analysis of Chemicals of Potential Concern (CoPC) that may have impacted the site during historical or present activities. Three (3) samples were taken from a depth of approximately 0.3m (fill layer) and one (1) sample was taken from approximately 1.2m (natural soil) beneath the site; and

4. Based on the site investigation and analytical results, GCA considers that the potential for significant contamination of soil and groundwater to be low. All analytes were below the NEPM Health and Ecological Assessment Criteria for Residential developments.

5. Therefore, GCA found that the site is suitable for the proposed development, providing that the recommendations within Section 14 of the report are undertaken.

10. Various conditions of consent have been included to address any potential asbestos.

11. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetations. I am satisfied that the development proposes appropriate landscape embellishment works within a residential context undertaken in accordance with the Landscape Plan. The proposal removes four (4) trees from the site but proposes appropriate replacements and also incorporates suitable street trees.

12. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across the State. The Proposed Development is for a centre-based child care facility pursuant to s 3.3 of the Transport and Infrastructure SEPP. Section 3.23 of the Transport and Infrastructure SEPP requires that the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines, before determining a development application. I am satisfied that compliance with the Child Care Planning Guidelines is addressed at pages 24 to 43 of the Statement of Environmental Effects filed with the Class 1 Application.

13. Clause 3.26 of the Transport and Infrastructure SEPP sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority from requiring more onerous standards for those matters. Clause 3.26(2) of the Transport and Infrastructure SEPP sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act, in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, cl 3.26(2)(b) provides the requirements for indoor or outdoor space. The Proposed Development provides 3.28m² of unencumbered indoor play space and 7m² of unencumbered outdoor play space which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations, which requires 3.25m² of unencumbered indoor play space and 7m² of unencumbered outdoor play space.

14. Compliance with the Liverpool Development Control Plan 2008 (LDCP), including specific provisions of clause 2 of Part 3.8 of the LDCP as they relate to child care centres within the Liverpool Local Government Area, is set out in the table appearing at pages 52 to 59 of the Statement of Environmental Effects filed with the Class 1 Application.

15. Finally, the Education and Care Services National Regulations 2011 provides extensive controls and requirements in addition to that of LLEP and LDCP and includes the following:

1. licensing and approvals processes, including documentation requirements;

2. facilities and equipment requirements;

3. staffing requirements;

4. child number requirements;

5. operational requirements;

6. administrative requirements;

7. probity check requirements; and

8. various miscellaneous requirements.

16. I am satisfied that compliance with Education and Care Services National Regulations is set out at pages 60 and 61 of the Statement of Environmental Effects filed with the Class 1 Application.

17. The Court must take into account the submissions of objectors under s 4.15(1)(d) of the EPA Act. The development application was advertised and notified to surrounding properties by the respondent between 24 May 2022 to 8 June 2022. Two (2) submissions were received. I am satisfied that the written submissions and those submissions provided orally onsite on the first day of the Conciliation Conference have been taken into account and addressed in the Proposed Development and Conditions of Consent.

18. 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 and I adopt the reasons given by the parties.

19. 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.

Notations:

20. The Court notes that:

1. Liverpool City Council as the relevant consent authority has agreed, pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000 (NSW), to the applicant amending the development application by the following documents:

No.	Document		Ref No.	Prepared by	Rev.	Date
1.	Architectural
	Cover Page	01		Baini Design	D	20 Sep 2022
	Compliance Table	02		Baini Design	D	20 Sep 2022
	Site Context	03		Baini Design	D	20 Sep 2022
	Demolition	04		Baini Design	D	20 Sep 2022
	Site Plan	05		Baini Design	D	20 Sep 2022
	Basement Floor	06		Baini Design	D	20 Sep 2022
	Ground Floor	07		Baini Design	D	20 Sep 2022
	First Floor	08		Baini Design	D	20 Sep 2022
	Elevations - East & North	09		Baini Design	D	20 Sep 2022
	Elevations - South & West	10		Baini Design	D	20 Sep 2022
	Sections - 1 & 2	11		Baini Design	D	20 Sep 2022
	Sections - 3 & 4	12		Baini Design	D	20 Sep 2022
	Kitchen & Laundry Details	13		Baini Design	D	20 Sep 2022
	Typical Nappy Change Detail	14		Baini Design	D	20 Sep 2022
	Typical Bottle Prep Detail	15		Baini Design	D	20 Sep 2022
	3D Views	16		Baini Design	D	20 Sep 2022
	Streetscape	17		Baini Design	D	20 Sep 2022
	Shadow Diagram – 9AM	18		Baini Design	D	20 Sep 2022
	Shadow Diagram – 12PM	19		Baini Design	D	20 Sep 2022
	Shadow Diagram – 3PM	20		Baini Design	D	20 Sep 2022
	Schedule of Finishes	21		Baini Design	D	20 Sep 2022
	Basement Accessible Plan	22		Baini Design	D	20 Sep 2022
	Ground Floor Accessible Plan	23		Baini Design	D	20 Sep 2022
	First Floor Accessible Plan	24		Baini Design	D	20 Sep 2022
	Ground Floor Calculation Plan	25		Baini Design	D	20 Sep 2022
	0-2 Indoor Play Area	26		Baini Design	D	20 Sep 2022
	2-3 Indoor Play Area	27		Baini Design	D	20 Sep 2022
	3-5 Indoor Play Area	28		Baini Design	D	20 Sep 2022
	Outdoor Play Area Calculations	29		Baini Design	D	20 Sep 2022
	Solar Access Plan	30		Baini Design	D	20 Sep 2022
	Boundary Fencing Plan	31		Baini Design	D	20 Sep 2022
33.	Landscape
	Landscape Concept	L – 01		Outside In Design	E	30 Sep 2022
	Section A-A	L – 02		Outside In Design	E	30 Sep 2022
	Fence + Planting Details	L – 03		Outside In Design	E	30 Sep 2022
37.	Stormwater
	Cover Sheet	SW001		Capital Engineering Consultants	F	27 Sep 2022
	Basement Plan	SW010		Capital Engineering Consultants	F	27 Sep 2022
	Site Stormwater Plan	SW020		Capital Engineering Consultants	F	27 Sep 2022
	On-site detention sections & details	SW021		Capital Engineering Consultants	F	27 Sep 2022
	Erosion and Sediment Control Plan	ER001		Capital Engineering Consultants	F	27 Sep 2022
43.	Traffic
	Statement			Hemanote Consultants	15 Sep 2022
	Statement			Hemanote Consultants	13 Oct 2022
46.	Environmental Noise Impact Assessment			Day Design	B	28 Sep 2022
47.	Social Impact Comment			Think Planners	-	14 Oct 2022
48.	Plan of Management			-	4	14 Oct 2022
49.	Arboricultural Impact Assessment and Tree Management Plan			Horticultural Management Services	2	15 Sep 2022
50.	CENVP Review of Preliminary Site Investigation			HEC	-	10 Nov 2021
51.	Geotechnical Investigation Report			CEC Geotechnical	-	25 Aug 2022

2. The applicant has uploaded the amended application on the NSW Planning Portal on 16 November 2022 and 17 November 2022.

3. The applicant has filed the amended application with the Court on 17 and 18 November 2022.

Orders:

21. The Court orders:

1. The applicant is to pay the respondent’s costs that have been thrown away as a result of the amendment of the applicant for development consent pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $3,000.

2. The appeal is upheld.

3. Development consent is granted to development application DA-203/2022 seeking consent for the demolition of structures on the site, excavation, tree removal and construction of a one hundred and twenty-seven (127) place two-storey childcare centre with basement car parking and associated works at 88 – 90 Woodlands Road, Liverpool and 34 Marsden Road, Liverpool, subject to the conditions in the annexure marked "A”

E Espinosa

Commissioner of the Court

**********

Annexure A 

Decision last updated: 13 December 2022