Roumanous v City of Parramatta Council

[2021] NSWLEC 1642

Land and Environment Court

New South Wales

Medium Neutral Citation:

Roumanous v City of Parramatta Council [2021] NSWLEC 1642

Hearing dates:

Conciliation conference on 3 September 2021

Date of orders:

22 October 2021

Decision date:

22 October 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs that have been thrown away as a result of the amendment of the application for development consent pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA/549/2018 lodged with the City of Parramatta Council on 7 August 2018 (as amended) seeking consent for the demolition of structures on the site, excavation, tree removal and construction of a forty-seven (47) place two-storey child care centre with basement car parking and associated works at 33 Thomas Street, Parramatta, subject to the conditions in the annexure marked "A”.

Catchwords:

APPEAL – development application – child care centre – conciliation conference – agreement reached

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

Land and Environment Court Act 1979, s 34

Parramatta Local Environmental Plan 2011

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 23, 25, 26

State Environmental Planning Policy (Infrastructure) 2007, cl 104

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Texts Cited:

Child Care Planning Guideline

Category:

Principal judgment

Parties:

Paul Roumanous (First Applicant)
Laura Anne Roumanous (Second Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
J Reid (Applicants)
A Seton (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicants)
Marsdens Law Group (Respondent)

File Number(s):

2021/169155

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s refusal of a development application for the demolition of structures on the site, excavation, tree removal and construction of a forty-seven (47) place two-storey child care centre with basement car parking and associated works at 33 Thomas Street, Parramatta. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 was held on 3 September 2021. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 15 October 2021, following the lodging of amended plans on the NSW Planning Portal with the agreement of the respondent, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amendments to the development application have reconfigured the street access and core, as well as relocating and redesigning the indoor play areas.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The agreement is supported by a jurisdictional statement provided by the parties by email on 15 October 2021. The jurisdictional statement supplements the matters addressed in the Statement of Environmental Effects dated 31 March 2020.

5. 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:

• The proposed development is for the purpose of centre based child care facility, which is permissible with consent in the R4 High Density Residential zone in which the site is located, pursuant to the Parramatta Local Environmental Plan 2011 (PLEP).

• The proposed development complies with the applicable development standards for height and floor space ratio under the PLEP.

• Although the site is identified as being affected by Class 5 acid sulfate soils in accordance with cl 6.1 of the PLEP, the proposed development is unlikely to lower the watertable below 1m AHD on an adjacent Class 1, 2, 3 or 4 land, and therefore an acid sulfate soils management plan is not required.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. A site inspection by the Council, historical aerial photographs and a search of records did not reveal any history of a previous use on the site that may have caused contamination.

• The State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Childcare SEPP) applies to the proposed development. The proposed development meets the development standards in cl 25 of the Childcare SEPP, and, in accordance with cl 23 and based on the Statement of Environmental Effects, I have considered the applicable provisions of the Child Care Planning Guideline.

6. The development application was advertised and notified, and a number of residents raised concerns, including concerns with respect to the parking and traffic impact of the proposed development, as well as the number of child care centres in the immediate vicinity of the site. Although these matters are not jurisdictional preconditions, I note that:

• In relation to parking, the proposed development provides the number of car parking spaces required by the Parramatta Development Control Plan 2011 (PDCP) and s 4.15(3A)(a) precludes the Court, in exercising the functions of the consent authority, from requiring more onerous standards than those stipulated by the PDCP.

• In relation to traffic, cl 104 of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) identifies several types of development that require concurrence from Transport for New South Wales (TfNSW) where development is identified as ‘traffic generating development’. The current proposal is not identified as traffic generating development by Sch 3 of the Infrastructure SEPP. Accordingly, the proposal is not required to be referred to TfNSW for comment. In addition, the potential traffic implications associated with the proposed development have been considered in the Parking and Traffic Impact Assessment by Stanbury Traffic Planning dated 20 April 2020, which concludes that the proposed site access arrangements will result in motorists being capable of entering and exiting the site in a safe and efficient manner, and the surrounding road network is capable of accommodating the additional traffic projected to be generated by the subject development.

• In relation to the existence of other child care centres within close proximity to the site, cl 25(2)(a) of the Childcare SEPP provides that “the development may be located at any distance from an existing or proposed early education and care facility”, and cl 26 of the Childcare SEPP makes it clear that any provisions of the PDCP that specify a requirement to demonstrate need or demand for child care services, or that specify a control in relation to the proximity of a facility to other early education and care facilities, do not apply.

7. 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)).

8. 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.

9. The Court notes that:

1. City of Parramatta Council as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application.

2. The applicant has uploaded the amended application on the NSW planning portal on 15 October 2021.

3. The applicant has subsequently filed the amended application with the Court on 15 October 2021.

10. The Court orders that:

1. The Applicant is to pay the Respondent’s costs that have been thrown away as a result of the amendment of the application for development consent pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to development application DA/549/2018 lodged with the City of Parramatta Council on 7 August 2018 (as amended) seeking consent for the demolition of structures on the site, excavation, tree removal and construction of a forty-seven (47) place two-storey child care centre with basement car parking and associated works at 33 Thomas Street, Parramatta, subject to the conditions in the annexure marked "A”.

……………………….

J Gray

Commissioner of the Court

Annexure A (330239, pdf)

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Decision last updated: 22 October 2021