Revelop Building and Development Pty Ltd v The Hills Shire Council

[2020] NSWLEC 1665

Land and Environment Court

New South Wales

Medium Neutral Citation:

Revelop Building & Development Pty Ltd v The Hills Shire Council [2020] NSWLEC 1665

Hearing dates:

Conciliation Conference 1 and 10 December 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Class 1

Before:

Froh R

Decision:

(1) The Applicant is granted leave to rely on the amended plans listed in Condition 1 at Annexure 'A' to this agreement.

(2) The appeal is upheld.

(3) Development Application No. DA/617/2020/HC for the change of use of existing ground floor residential units within a shop top housing development to a 58 place child care facility at Lot 10 in Deposited Plan 1234927 otherwise described as 2-4 Aberdour Avenue, Rouse Hill, is approved subject to the conditions contained at Annexure 'A'.

Catchwords:

CHANGE OF USE – conciliation conference – agreement between the parties – change of use from shop top housing development to a child care facility

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7

Land and Environment Court Act 1979 s 34

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 cl 22

State Environmental Planning Policy No. 55 – Remediation of Land cl 7

The Hills Local Environmental Plan 2012 cll 4.3; 4.4; 5.10(4)

Texts Cited:

Education and Care Services National Regulations (2011 SI 653) rr 107; 108

Category:

Principal judgment

Parties:

Revelop Building & Development Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
Ms A Hemmings (Applicant)
Mr A Hudson (Solicitor) (Respondent)

Solicitors:
Thomson Geer (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/256433

Publication restriction:

No

Judgment

1. REGISTRAR: This is an appeal lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (“the Act”) against the respondent's deemed refusal of Development Application No. DA/617/2020/HC (“the Application”).

2. The Application as lodged on 6 November 2019 sought consent for the change of use of existing ground floor residential units within a shop top housing development to a 66 child care facility at Lot 10 in Deposited Plan 1234927 otherwise described as 2-4 Aberdour Avenue, Rouse Hill (“the Site”).

3. Following the conciliation conference, the Applicant provided the Respondent with amended plans and additional information in response to the contentions raised in the Respondent’s Statements of Facts and Contentions (“the Amended Application”).

4. A conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (“the Court Act”) was held between the parties, on 1 and 10 December 2020. I presided over the conciliation conference.

5. At the conciliation conference, an agreement under s 34(3) of the Court Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding officer, I am satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I am so satisfied because:

1. the development is for the purpose of a “centre-based child care facility” which is permissible with consent in the B2 Zone of The Hills Local Environmental Plan 2012 (“the HLEP”);

2. there is no change to the approved building height or floor space ratio pursuant to cll 4.3 and 4.4 of the HLEP respectively;

3. there is no impact on heritage curtilage of the local heritage items (cl 5.10(4) of the HLEP);

4. the Amended Application satisfies the provisions minimum unencumbered indoor and outdoor play space requirements of cl 25(2)(b) of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (“the SEPP (Educational Establishments and Child Care Facilities)”);

5. the concurrence of the Regulatory Authority (being the NSW Department of Education in NSW) for the purposes of cl 22 of the SEPP (Educational Establishments and Child Care Facilities) is not required as the architectural plans for which consent is sought provides that compliance with regulations 107 and 108 of the Education and Care Services National Regulations (“the Regulations”) is achieved;

6. the child care centre has been designed in accordance with Part 3 Facilities and Equipment Requirements of the Regulations. In particular, the proposed child care centre will include:

1. Office administration area and staff rooms;

2. Indoor space (unencumbered) of 3.99m² per child;

3. Outdoor space of 7m² per child;

4. a laundry facility at site;

5. craft sinks and areas in the play rooms;

6. a food preparation – kitchen area where children are prevented from accessing;

7. nominated children toilet facilities;

8. a nappy changing area;

9. a sleeping area - cot room; and

10. storage areas adjoining the playrooms and outdoor space; and

7. the Site has been remediated as required by cl 7 of the State Environmental Planning Policy No. 55 – Remediation of Land.

6. As a consequence, s 34(3)(a) of the Court Act requires me to “dispose of the proceedings in accordance with the decision”.

7. The Court Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). These orders constitute the terms of the decision.

8. The final orders to give effect to the agreement between the parties under s 34(3) of the Court Act are:

1. The Applicant is granted leave to rely on the amended plans listed in Condition 1 at Annexure 'A' to this agreement.

2. The appeal is upheld.

3. Development Application No. DA/617/2020/HC for the change of use of existing ground floor residential units within a shop top housing development to a 58 place child care facility at Lot 10 in Deposited Plan 1234927 otherwise described as 2-4 Aberdour Avenue, Rouse Hill, is approved subject to the conditions contained at Annexure 'A'.

………………………

S Froh

Registrar of the Court

Annexure A (710282, pdf)

Architecture Plans (5081090, pdf)

Landscape Plans (2615820, pdf)

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Decision last updated: 18 December 2020