Reynolds v Canterbury-Bankstown Council

[2025] NSWLEC 1146

Land and Environment Court

New South Wales

Medium Neutral Citation:

Reynolds v Canterbury-Bankstown Council [2025] NSWLEC 1146

Hearing dates:

Conciliation conference on 20 February 2025

Date of orders:

14 March 2025

Decision date:

14 March 2025

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The appeal is upheld

(2) Development Application No. DA-1354/2023 for amalgamation of two separate allotments, demolition of existing structures to construct a two storey childcare centre accommodating sixty-four children above one level of basement carpark accommodating sixteen vehicles, site works and landscaping at 14 & 16 Plimsoll Street, Belmore (Lot 29 Sec A DP 3206 and Lot 30 Sec A DP 3206) is determined by the grant of consent subject to the conditions contained in Annexure A.

(3) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendments to the development application in the agreed amount of $2,800.00 within 28 days of these orders.

Catchwords:

APPEAL – development application – centre based child care centre - conciliation conference – agreement reached – orders made

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 38, 49

Education and Care Services National Regulations 2011, reg 107, 108

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.26

Canterbury-Bankstown Local Environmental Plan 2023, cll 2.7, 4.3, 4.4, 6.2, 6.3, 6.9

Texts Cited:

Department of Planning, Industry and Environment, Child Care Planning Guideline (1 October 2021)

Category:

Principal judgment

Parties:

Josh Garry Reynolds (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
Mr M Staunton (Applicant)
Mr M Bonnano (Respondent)

Solicitors:
Fortis Law (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2024/170917

Publication restriction:

Nil

JUDGMENT

1. 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 DA-1354/2023 for the demolition of existing structures and the construction of a two-storey centre based child care facility for 70 children above basement parking at 14 & 16 Plimsoll Street, Belmore (Lot 29 Sec A DP 3206 and Lot 30 Sec A DP 3206) by Canterbury-Bankstown Council.

2. This matter was originally listed for hearing on 20 February 2025 however prior to the hearing the parties advised that they had reached an agreement and therefore requested that the site viewing be vacated, and the matter be relisted for a s 34 conciliation conference. The parties advised that no objectors had requested to make submissions on site and that all submitters had been advised by the respondent of the parties’ intention to enter into an agreement. The submitters had also been provided with a copy of the proposed agreement, amended application and agreed conditions of consent. The requests that the site view be vacated and that the matter be relisted for a s 34 conciliation conference were granted. A conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) commenced on 20 February 2025. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Applicant amending DA-1354/2023 in accordance with the documents listed at Annexure A (amended DA).

4. As part of the conciliation conference process, 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 for the amended DA and granting development consent to the amended application subject to conditions of consent.

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. I have considered the contents of the jurisdictional statement together with the documents referred to therein, the Class 1 Application and its attachments, the joint expert reports and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. Under 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional matters

8. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1. Pursuant to s 49 of the EPA Regulation, owner’s consent accompanied the DA and formed part of the Class 1 Appeal documentation.

2. The development application was originally notified by Canterbury-Bankstown Council between 22 November 2023 and 12 December 2023. A total of seventeen submissions objecting to the application were received. Following amendments to the plans the application was renotified from 29 November to 12 December 2024 and three further submissions were received. As outlined above no objectors advised that they wished to speak at the commencement of the proceedings and all submitters were advised by the respondent of the parties’ intention to enter into an agreement. They were also provided with a copy of the proposed agreement, amended application and agreed conditions of consent prior to the conciliation conference. In reaching agreement, the parties have advised that the matters raised by objectors have been considered.

Canterbury-Bankstown Local Environmental Plan 2023

1. The development works are for the purposes of a centre based child care centre, which is a permissible use in the R3 – Medium Density Residential zone in which the site is located, pursuant to the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP).

2. The development is consistent with the objectives of the R3 – Medium Density Residential zone including notably “to enable other land uses that provide facilities or services to meet the day to day needs of residents”.

3. Demolition is permissible with consent under cl 2.7 of CBLEP and consent is sought for demolition as part of the subject application.

4. The proposed development complies with the maximum height of building development standard (maximum proposed height of 8.5m where a maximum of 8.5m applies) in accordance with cl 4.3 of CBLEP.

5. The proposed development complies with the maximum floor space ratio development standard (maximum proposed floor space ratio of 0.45:1 where a maximum of 0.5:1 applies) in accordance with cl 4.4 of CBLEP.

6. Development consent is required under cl 6.2 of CBLEP for earthworks and cl. 6.2(3) sets out matters which must be considered in deciding whether to grant consent to earthworks. In accordance with the requirements of cl 6.2, I am satisfied on the basis of the submitted stormwater drainage plans and sediment and erosion control plan (Vanguard Consulting Engineers, 11 November 2024) and various conditions of consent at Annexure A that the relevant matters have been considered and that the proposed earthworks will not give rise to any adverse environmental impacts.

7. Clause 6.3 of CBLEP requires that when deciding whether to grant consent the consent authority must be satisfied of a variety of matters in respect of stormwater management including water infiltration, on-site detention, stormwater runoff and impacts on the public drainage system. On the basis of the parties’ agreement, the stormwater drainage plans and sediment and erosion control plan (Vanguard Consulting Engineers, 11 November 2024) and the proposed conditions of consent I am satisfied in respect of the specified matters.

8. Clause 6.9 of CBLEP provides that development consent must not be granted unless the consent authority is satisfied that essential services (including water, electricity, sewage, stormwater drainage and vehicular access) are available or that adequate arrangements have been made to make them available for the proposed development. I am satisfied on the basis of the existing use of the site and the amended plans, that essential services are available.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Prior to the granting of consent consideration is required to be given to whether a subject site is contaminated and if so the consent authority is required to be satisfied that it can and will be made suitable for the proposed use in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). I am satisfied that the site will be made suitable for the proposed use on the basis of the Detailed Site Investigation report (21 February 2023) and Remedial Action Plan (31 July 2024) both prepared by Geotechnical Consultants Australia and the proposed conditions of consent including conditions 2, 12 and 53.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

1. Chapter 3 Educational establishments and child care facilities of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies to the proposed development. The parties agree and I accept that the amended proposal complies with the non-discretionary standards set out at s 3.26 of the TI SEPP and the indoor and outdoor unencumbered space requirements outlined in the Education and Care Services National Regulations (2011) reg 107 and 108. Accordingly, the concurrence of the Regulatory Authority is not required as provided by s 3.22 of the TI SEPP. Based on the updated Statement of Environmental Effects prepared by Think Planners dated 7 February 2025 and agreement of the parties, I have considered the provisions of ss 3.22, 3.23, the Department of Planning, Industry and Environment’s ‘Child Care Planning Guideline’ (1 October 2021) and the Education and Care Services National Regulations and accept that the relevant matters have been addressed.

CONCLUSION

9. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

10. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

11. The orders of the Court are:

12. (1)   The appeal is upheld.

13. (2)   Development Application No. DA-1354/2023 for amalgamation of two separate allotments, demolition of existing structures to construct a two storey childcare centre accommodating sixty-four children above one level of basement carpark accommodating sixteen vehicles, site works and landscaping at 14 & 16 Plimsoll Street, Belmore (Lot 29 Sec A DP 3206 and Lot 30 Sec A DP 3206) is determined by the grant of consent subject to the conditions contained in Annexure A.

14. (3) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendments to the development application in the agreed amount of $2,800.00 within 28 days of these orders.

H Miller

Acting Commissioner of the Court

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Annexure A

Decision last updated: 14 March 2025