Sadig v The Hills Shire Council

[2021] NSWLEC 1630

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sadig v The Hills Shire Council [2021] NSWLEC 1630

Hearing dates:

Conciliation conference on 4 and 31 August and 16 September 2021

Date of orders:

21 October 2021

Decision date:

21 October 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The Applicant to pay, within 28 days of the final order, the Councils s 8.15(3) costs thrown away as a result of the amendment to the development application agreed at $10,000.

(2) The Appeal is upheld.

(3) Development Application 2286/2018/HA (as amended) for demolition of existing buildings and construction of a 106 place child care centre on the land at 166 Old Pitt Town Road, Box Hill NSW is approved subject to the conditions set out in Annexure “A” to this agreement.

Catchwords:

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

Legislation Cited:

Education and Care Services National Regulations, regs 107, 108

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 22, 23

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

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, cl 7, Appendix 11, cll 2.3, 4.3, 6.1

The Hills Local Environmental Plan 2019, cl 5.10, Schedule 5

Texts Cited:

Child Care Planning Guideline, NSW Department of Planning and Environment, August 2017

Category:

Principal judgment

Parties:

Raymond Sadig (First Applicant)
Diana Sadig (Second Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
A Hudson (Solicitor) (Respondent)

Solicitors:
Storey & Gough
Wilshire Webb Staunton Beattie Lawyers

File Number(s):

2020/45183

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an Appeal against the actual refusal of a development application No. 2286/2018/HA seeking consent for a two storey building with basement parking, incorporating a 118 place child care centre, 39 car parking spaces (the Proposed Development) on the land at 166 Old Pitt Town Road, Box Hill legally describes as Lot 122 in DP 562991 (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 4 and 31 August and 16 September 2021. I have presided over the conciliation conference.

3. 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.

4. 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. 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 jurisdictional statement which provides as follows:

1. The State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP Growth Centres) is applicable to the Site.

1. The land is within the North West Growth Centre and is within Precinct E Box Hill of the North West Growth Centre.

2. Clause 7 of the SEPP Growth Centres provides that Appendix 11 of the SEPP Growth Centres applies and this Appendix sets out the zoning and development control provisions applying to the carrying out of development in the Box Hill Precinct.

3. Appendix 11 is The Hills Growth Centre Precincts Plan 2013 (“the PP” and is like a Standard Instrument Local Environmental Plan). It applies to the Box Hill Precinct.

4. The land is zoned R2 Low Density Residential and “Centre-based child care facilities” is a listed use in the Permissible with consent section.

5. Clause 2.3 requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

6. The objectives of the R2 zone have been appropriately considered at pages 7-9 of the Joint Planning Report filed 2 August 2021 in conjunction with the amended plans showing the changes to the SW corner of the building and the final landscape plan (and conditions).

7. Clause 4.3 sets a height limit of 8.5m. The development is within the 8.5m height limit as shown on plans A04.01 and A05.01.

8. Clause 6.1 provides that development consent must not be granted for development on land to which this Precinct Plan applies unless the Council is satisfied that any public utility infrastructure (water, sewerage and electricity) that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.

9. This clause has been satisfied for sewerage and water by the section 73 certificate No 19404 dated 23 August 2021 and for the electricity by the Endeavour Energy connection offer letter dated 5 August 2021 (ref UCL 11019).

10. The North West Growth Centre Box Hill precinct has a Development Control Plan (DCP)- the Box Hill DCP. The relevant controls to the proposed development have been taken into consideration by a combination of the original SEE (Urbanesque 18 June 2018) , Councils assessment report 13 August 2019 , the contentions and the joint reports particularly the planning report (filed 2 August 2021) in association with the final amended plans.

2. In relation to the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP Childcare) and the Education and Care Services National Regulations, cl 22 of the SEPP Childcare does not apply because regs 107 (indoor unencumbered space requirements) and 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations have been complied with to the satisfaction of the Council as per calculations on plan A03.1.

1. Clause 23 of the SEPP Childcare requires the consent authority to take into consideration any applicable provisions of the Child Care Planning Guideline (Guideline), in relation to the proposed development.

2. The Guideline is appropriately addressed on pages 9 – 14 in the Joint Planners Report filed 2 August 2021 in conjunction with the amended plans showing the changes to the SW corner of the building and the final landscape plan (and conditions).

3. Clause 7 of the State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) requires the consent authority to consider whether the land is contaminated. The applicant provided a phase 1 report in November 2020 which has been considered by the Council. The Council requires a deferred commencement consent condition to be imposed requiring a phase 2 report because there are areas which are covered by existing buildings which need to be considered. Given the relatively low level of any possible contamination the Council is satisfied that this can be addressed by the deferred commencement condition that requires any recommendation for remediation to be undertaken and a site validation provided prior to the commencement of the consent. There is also the option provided for the applicant to appoint a site auditor.

4. Relevantly there is a heritage listed bypass road adjacent to the site. The bypass road is not part of the Precinct E Box Hill of the North West Growth Centre in accordance with the SEPP Growth Centres. The bypass road is covered by and listed as an heritage item/archaeological site under Part 3 of Schedule 5 of The Hills Local Environmental Plan 2019 (HLEP 2019) as follows:

Part 3 Archaeological sites

Suburb	Item name	Address	Property description	Significance	Item no
Box Hill	Bypassed section of road	162–170 Old Pitt Town Road	Within road reserve fronting Lot 10A, DP 11104; Lot 11, DP 10157; Lots 121 and 122, DP 562991; Lot 1, DP 581760	Local	A3

The HLEP 2019 and the SEPP Growth Centres contain the Standard Instrument 5.10 heritage clause. Clauses 5.10(4) of either or both of the HLEP 2019 or the SEPP Growth Centres may not specifically apply to the proposed development. However, a supporting heritage report (Paul Davies Pty Ltd June 2018) was submitted under clauses 5.10(5)(c) of the HLEP 2019 and the SEPP Growth Centres. This report was required to assess the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage bypass road.

5. The Council’s contentions did not agree with this report because of the direct impacts and ancillary traffic impacts from the originally proposed vehicular and pedestrian access to the childcare centre from the bypass road. However, this issue has now been fully resolved by the amended development application because there is now no pedestrian or vehicular access (including construction, deliveries and garbage services) from or to the bypass road and this will also be supported by a conditions of consent.

5. 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. I refer to and adopt the reasons given by the parties set out above in this judgment.

6. 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.

7. The Court notes that:

1. The Hills Shire Council (the 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 2286/2018/HA the subject of these proceedings as shown in the following amended plans and details:

DRAWING NO	DESCRIPTION	REVISION	DATE
A0.00	Cover Page	C	10 May 2021
A01.01	Existing and Demolition Plan	D	26 June 2021
A02.01	Proposed Site Plan / Roof Plan	I	25 August 2021
A03.01	Lower Ground Floor Plan	I	10 August 2021
A03.02	Ground Floor Plan	H	25 August 2021
A04.01	External Elevations	G	10 August 2021
A05.01	Building Sections and Fencing Details	G	10 August 2021
A05.03	Other Sections	E	10 August 2021
A06.05	Earthworks Plan	D	10 August 2021
L-01/2	Landscape Plan	F	26 August 2021
L-02/2	Outdoor Play Area Typical Activities Plan	F	26 August 2021
TPP-SAD0721 Sheet 1 of 2	Tree Protection Plan	-	12 July 2021
TPP-SAD0721 Sheet 2 of 2	TPP Specifications	-	12 July 2021

(referred to as” the amended DA”)

2. On 21 September 2021 the amended DA was been lodged/published with the NSW Planning Portal (“the Portal”) as shown in the NSW Portal extract Annexure “A1”.

3. On 24 September 2021 the Applicant filed with the Court a copy of the amended DA.

Orders

8. The Court orders that:

1. The Applicant to pay, within 28 days of the final order, the Councils s  8.15(3) costs thrown away as a result of the amendment to the development application agreed at $10,000.

2. The Appeal is upheld.

3. Development Application 2286/2018/HA (as amended) for demolition of existing buildings and construction of a 106 place child care centre on the land at 166 Old Pitt Town Road, Box Hill NSW is approved subject to the conditions set out in Annexure “A” to this agreement.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (5021931, pdf)

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Decision last updated: 21 October 2021