Rosewood Avenue Pty Ltd v Liverpool City Council

[2022] NSWLEC 1610

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rosewood Avenue Pty Ltd v Liverpool City Council [2022] NSWLEC 1610

Hearing dates:

Conciliation conference on 9 September 2022

Date of orders:

02 November 2022

Decision date:

02 November 2022

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA-375/2022, for the construction of a single storey 80 place childcare centre with car parking, fencing, landscaping, drainage and associated site works on land legally described as Lot 1 in DP 871535 and known as 47-51 Rosewood Avenue, Prestons, NSW, 2170, subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021 cl 37

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008 cll 4.3, 4.4,

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Pt 11.2, cl 11.6

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

Category:

Principal judgment

Parties:

Rosewood Avenue Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Johnson (Solicitor) (Applicant)
L Zumot (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2022/137280

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA 375/2022 (the DA) by Liverpool City Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to an 1857 m² parcel of land which is legally described as DP 871535 and known as 47-51 Rosewood Avenue, Prestons (the Site). The Site is rectangular in shape with a primary eastern boundary frontage of approximately 47.62 m to Rosewood Avenue and a rear western boundary to a public reserve fronting Beech Road and a depth of 39m. The Site is currently occupied by an existing single storey dwelling and garden shed.

3. The DA as submitted to Council sought consent for the construction of a single storey 80 place childcare centre with carparking, fencing, landscaping and associated site works.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 September 2022, and at which I presided.

5. The Applicant provided without prejudice amended material to the Council as listed at Annexure A of the s 34 Agreement (Amended DA). Prior to 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.

6. Council confirmed that the Amended DA resolved Council’s Statement of Facts and Contentions . The Council, as the relevant consent authority, has agreed under cl 37 of the Environmental Planning and Assessment Regulation 2021to the Applicant amending the DA in accordance with the Amended DA.

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was subsequently filed with the Court on 28 September 2022.

8. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended material that was prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

9. 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 power under s 4.16 of the EPA Act.

10. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [11 -19] below.

Satisfaction of jurisdiction

11. The relevant jurisdictional matters in relation to the Liverpool Local Environmental Plan 2008 (LLEP) are:

1. The Site is zoned R2 Low Density Residential under the LLEP. “Centre-based childcare facilities” are permitted with consent in the R2 Zone.

2. The development applicant was accompanied by landowner’s consent.

3. Clause 4.3 to LLEP prescribes a maximum height for the site of 8.5 metres. The parties agree that the proposed building is less than 8.5m and I am satisfied that this standard is complied with.

4. Clause 4.4 of LLEP specifies that the maximum floor space ratio (FSR) on the Site is 0.5:1 and the parties agree that the proposed development has an FSR which is less than 0.5:1 and I am satisfied that this standard is complied with.

5. The DA was notified by the Respondent for a period of fourteen (14) days commencing on 20 May 2022 and no submissions were received.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

12. Chapter 4 Remediation of land of the Resilience and Hazards SEPP applies to the proposed development. Clause 4.6 of the Resilience and Hazards SEPP requires a consent authority to consider the contamination and remediation of land when determining a development application. Clause 4.6(1) requires that:

A consent authority must not consent to the carrying out of any development on land unless—

1. (a) it has considered whether the land is contaminated, and

2. (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

3. (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

13. The Amended DA is accompanied by a Combined Stage 1 Preliminary and Stage 2 Detailed Site Investigation report prepared by Sydney Environmental Group dated 20 December 2021.

14. Based on the assessments undertaken as part of the site investigation, the parties agree that the Site is suitable for the proposed development, and I am satisfied that the requirements of SEPP (Resilience and Hazards) are complied with.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C)

15. Chapter 11 Georges River Catchment of the SEPP B&C applies to the proposed development. Cl 11.6 of the SEPP B&C requires a consent authority to consider the matters referred to in Part 11.2.

16. The parties agree that the matters for consideration under Part 11.2 have been addressed in the following material which accompany the Amended DA:

1. Statement of Environmental Effects prepared by MMDC Pty Ltd dated February 2022;

2. Combined Stage 1 Preliminary and Stage 2 Detailed Site Investigation report prepared by Sydney Environmental Group dated 20 December 2021;

3. Stormwater plans prepared by VNK Consulting Pty Ltd dated 8 August 2022; and

4. Sediment Erosion Control plan prepared by VNK Consulting 8 August 2022.

17. I am satisfied, based on the above documents submitted by the Applicant that Part 11.2 of SEPP B&C is addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (ISEPP)

18. Chapter 3 Educational establishments and childcare facilities of the ISEPP applies to the proposed development.

19. Clause 3.23 of the ISEPP requires a consent authority to consider the Child Care Planning Guideline when determining a development application. The matters for consideration under the Child Care Planning Guideline have been addressed in the Statement of Environmental Effects prepared by MMDC Pty Ltd dated February 2022 and the letter from Mr Eltin Miletic-Mieler dated 12 September which includes a table demonstrating how the Amended DA complies with the ISEPP. I am satisfied that the Child Care Planning Guideline has been satisfactorily addressed by the Amended DA.

Disposal of Proceedings

20. 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.

21. The Court notes that:

1. the parties have reached an agreement in a conciliation conference conducted pursuant to s 34(3) of the Land and Environment Court Act1979, as to a decision that the Court could have made in the proper exercise of its functions; and

2. the Council, as the relevant consent authority, has consented to (pursuant to cl.37 of the Environment Planning and Assessment Regulation 2021) the Applicant amending Development Application No. DA-375/2022 in accordance with the amended plans and documents lodged on the NSW Planning Portal on 8 September 2022 and filed with the Court on 14 September 2022 as described below.

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Dwg A01 Rev R-00	Location Analysis	Archidrome	19 January 2022
	Dwg A02 Rev R-05	Site Analysis		29 July 2022
	Dwg A03 Rev R-05	Site Plan		29 July 2022
	Dwg A04 Rev R-05	Ground Floor Plan		29 July 2022
	Dwg A05 Rev R-05	Roof Plan		29 July 2022
	Dwg A06 Rev R-01	Section		12 July 2022
	Dwg A07.A Rev R-05	Elevation 01		29 July 2022
	Dwg A07.B Rev R-05	Elevation 02		29 July 2022
	Dwg A09.A Rev R-01	Solar Access Analysis at Winter		31 January 2022
	Dwg A09.B Rev R-01	Solar Access Analysis at Winter 2		31 January 2022
	Dwg A09.C Rev R-00	Solar Access at Summer		30 November 2021
	Dwg M01 Rev R-02	Material Schedule		19 January 2022
	Dwg A10 Rev R-05	Evacuation Plan		29 July 2022
	Dwg A11 Rev R-00	Design Concept		19 January 2022
	Dwg A12 Rev R-00	3D View		19 January 2022
	Dwg A13 Rev R-02	Streetscape Elevation		19 January 2022
	Dwg A14 Rev R-05	Acoustic Fencing		29 July 2022
	Dwg A14.B Rev R-05	Acoustic Fencing Detail		29 July 2022
	Dwg 00 Rev R-00	Nappy Changing Station		6 July 2022
Landscape Plan
2	Dwg A08 Rev R-05	Landscape Plan	Archidrome	29 July 2022
Engineering Plans
3	Dwg 260122-01 Rev C	Sediment Erosion Control Plan	VNK Consulting Pty Ttd	8 August 2022
	Dwg 270122-01 Rev D	Stormwater Drainage Layout Plan – 1		8 August 2022
	Dwg 270122-02 Rev D	Stormwater Drainage Layout Pln – 2		8 August 2022
DRAINS & MUSIC Model
Reports
4	Operational Management Plan		Archidrome	August 2022
5	Traffic Response		TEF Consulting	10 August 2022 and 14 July 2022
6	Social Impact Assessment		MMDC Pty Ltd	July 2022
7	DA Acoustic Assessment		Acoustic Logic	1 July 2022
8	Combined Stage 1 & Stage 2 Detailed Site Investigation		Sydney Environmental Group Pty Ltd	5 July 2022

Orders

22. The Court orders that:

1. The Appeal is upheld.

2. Development consent is granted to Development Application No. DA-375/2022, for the construction of a single storey 80 place childcare centre with car parking, fencing, landscaping, drainage and associated site works on land legally described as Lot 1 in DP871535 and known as 47-51 Rosewood Avenue, Prestons, NSW, 2170, subject to the conditions at Annexure A.

……………………….

L Sheridan

Acting Commissioner of the Court

137280.22 Annexure A (493160, pdf)

**********

Decision last updated: 02 November 2022