Sahyoun v City of Parramatta Council

[2023] NSWLEC 1769

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sahyoun v City of Parramatta Council [2023] NSWLEC 1769

Hearing dates:

Conciliation conferences on 10 October, 15 and 27 November 2023

Date of orders:

20 December 2023

Decision date:

20 December 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA/670/2022, as amended, for demolition, construction of a two-storey, forty place child care centre with basement carparking and associated landscaping on Lots 130 and 131 in Deposited Plan 1250311, known as 7 and 7A Gaggin Street, North Parramatta, New South Wales, 2151 subject to the conditions of consent in Annexure A.

Catchwords:

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

Legislation Cited:

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.15, 8.7, Sch 1, Div 2, s 7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

Parramatta Local Environmental Plan 2011, cll 2.3, 4.3, 4.4, 5.10, 6.1, 6.2

Parramatta Local Environmental Plan 2023, cl 1.8A

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 10

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, s 3.26

State Environmental Planning Policy Amendment (Water Catchments) 2022, s 6.65

Texts Cited:

Department of Planning, Industry and Environment, Child Care Planning Guideline 2021

Parramatta Development Control Plan 2011

Parramatta Community Participation Plan 2022

Category:

Principal judgment

Parties:

Albert Sahyoun (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
K Marginson (Solicitor) (Applicant)
B Stephen (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2023/125558

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA /670/2022 (the DA) for the demolition, construction of a two-storey, forty three place child care centre with basement carparking and associated landscaping on Lots 130 and 131 in Deposited Plan 1250311, known as 7 and 7A Gaggin Street, North Parramatta, New South Wales, 2151 (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 October 2023. I presided over the conciliation conference, which began with an on-site view. There was one objector to the proposed development, who did not attend the on-site view.

3. The s 34 conciliation conference was adjourned to 2 November 2023 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent, and subsequently further adjourned to 15 and 27 November 2023 to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent.

4. The amended DA includes a reduction in the capacity of the proposed child care facility to forty children and changes to the design of the building to reduce its bulk and scale; changes to the configuration of the first floor outdoor play area to enable adequate sightlines for supervision; additional landscaping; inclusion of fence details with reference to acoustic requirements; and amended stormwater plans with additional details regarding on-site detention and water sensitive design.

5. The signed s 34 agreement with Annexure A was filed with the Court on 28 November 2023. This decision of the parties involves the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

6. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

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

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Environmental Planning and Assessment Act 1979

Owner’s consent

9. The DA was formally lodged on 29 August 2022 by Artmade Architects, who provided owner’s consent.

Community Participation (Sch 1, Div 2, s 7(1))

10. The DA was exhibited between 7 and 28 September 2022 in accordance with the requirements of the Parramatta Community Participation Plan 2022. One submission was received in response to that notification.

Conditions

11. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Evaluation under Section 4.15

12. The parties agree that the amended DA can be approved taking into consideration the matters in s 4.15(1)(b) to (e) of the EPA Act.

Parramatta Local Environmental Plan 2011

13. The Parramatta Local Environmental Plan 2011 (PLEP) is the relevant local environmental planning instrument that applies to the site, as the DA was lodged prior to the gazettal of the Parramatta Local Environmental Plan 2023, which contains a savings provision at cl 1.8A. Under the PLEP provisions:

1. The site is zoned R3 Medium Density Residential pursuant to cl 2.3 of the PLEP;

1. Centre-based child care is permissible with consent in the R3 zone; and

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

2. Pursuant to cl 4.3 of the PLEP, the maximum height of buildings on the site is 9.5 metres;

1. The height of the proposed development is less than 9.5 metres, and thus complies with cl 4.3.

3. Pursuant to cl 4.4 of the PLEP, a maximum floor space ratio (FSR) of 0.6:1 applies to the site;

1. The proposed development has an FSR of 0.39:1, and thus complies with cl 4.4.

4. Clause 5.10 of the PLEP relates to heritage conservation;

1. The parties advise there are no known or suspected archaeological or Aboriginal heritage items on the site.

5. The provisions of cl 6.1 of the PLEP concern acid sulfate soils;

1. The site is designated as Class 5 on the Acid Sulfate Soils Map, however the parties advise that the proposed development will not result in the lowering of the watertable and will not result in the disturbance of more than one tonne of soil; and

2. The site underwent a preliminary assessment pursuant to cl 6.1. The parties advise that the proposed site activities have been assessed through a Geotechnical Report submitted with the amended DA.

6. The provisions of cl 6.2 of the PLEP concern earthworks and apply to the proposed development as it includes earthworks to construct the basement carparking;

1. The Applicant has prepared a revised Geotechnical Investigation Report which concludes that the excavation proposed for the basement car parking will not have a “a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land” as required by the objectives of cl 6.2; and

2. The parties advise that conditions of consent require compliance with the recommendations of the geotechnical investigations and to the plans that denote the extent of cut and fill across the site.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation;

1. The parties advise that there are no trees proposed to be removed from the site and no major vegetation clearing proposed, hence the proposed development is consistent with Ch 2 of the Biodiversity and Conservation SEPP.

15. Former Ch 10 of the Biodiversity and Conservation SEPP applies to the proposed development, as the DA was lodged on 29 August 2022 prior to the amendment of the Biodiversity and Conservation SEPP on 21 November 2022 by the State Environmental Planning Policy Amendment (Water Catchments) 2022, which contains savings provisions at s 6.65;

1. The parties advise that the site is not identified as land within the Foreshores and Waterways Area, as a strategic foreshore site, as a heritage item or as a land within the wetlands protection area, and therefore Ch 10 of the Biodiversity and Conservation SEPP is not applicable.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 ( Resilience and Hazards SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and 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;

1. The parties advise that the Applicant engaged ECON Environmental to prepare a Preliminary Site Investigation dated 16 June 2022 which concludes that the site is suitable for the proposed use and a detailed site investigation is not required; and

2. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

17. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW. Section 3.26 of the Transport and Infrastructure SEPP contains non-discretionary development standards for centre based child care centres;

1. The parties advise that the proposed development meets the requirements of Ch 3 of the Transport and Infrastructure SEPP, including addressing compliance with Child Care Planning Guideline 2021 and Education and Care Services National Regulations 2011.

Child Care Planning Guideline 2021

18. The Child Care Planning Guideline 2021 establishes the assessment framework to deliver consistent planning outcomes and design quality for centre based child care facilities in NSW;

1. The parties advise that compliance with the Child Care Planning Guideline 2021 is addressed in the Statement of Environmental Effects accompanying the DA, and the proposed development remains compliant in the amended DA.

Parramatta Development Control Plan 2011

19. The Parramatta Development Control Plan 2011 (DCP) applies to the site;

1. The parties submit that all contentions (which included non-compliance with the DCP) raised in the Statement of Facts and Contentions filed on 26 May 2023 have been resolved by the preparation of the amended plans and documents and the agreed conditions of consent.

Conclusion

20. 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.

21. 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.

22. The Court notes:

1. That the City of Parramatta Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA/670/2022 made on 28 November 2023 to rely on the documents and plans specified below (the amended development application):

PLANS

1.

Schedule of Amendments and Amended Architectural Plans prepared by Artmade Architects as follows:

Plan	Date
Cover Page Rev E	13 November 2023
Site Demolition Plan Rev E	13 November 2023
Basement Plan Rev C	5 October 2023
Ground Floor Plan Rev E	13 November 2023
First Floor Plan Rev D	17 October 2023
Calculations Rev D	17 October 2023
External Elevations & External Finishes Rev D	17 October 2023
Sections & External Finishes Rev E	13 November 2023

13 November 2023

2.

Views prepared by Artmade Architects

17 October 2023

3.

Stormwater Plans prepared by Telford Civil (Rev B)

Stormwater & OSD Documentation DA Checklist

14 November 2023

14 November 2023

4.

Landscape Plans prepared by Greenscape (Rev D)

17 November 2023

5.

Swept Paths and Gradient Access Plans prepared by Stanbury Traffic

28 September 2023

REPORTS

6.

Updated Access Report prepared by ABE consulting

20 October 2023

7.

Updated Acoustic Report prepared by Day Design

23 October 2023

8.

Updated Statement on Planning Issues prepared by Planning Ingenuity

23 October 2023

9.

Geotechnical Report prepared by Greywacke

5 October 2023

23. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to development application DA/670/2022, as amended, for demolition, construction of a two-storey, forty place child care centre with basement carparking and associated landscaping on Lots 130 and 131 in Deposited Plan 1250311, known as 7 and 7A Gaggin Street, North Parramatta, New South Wales, 2151 subject to the conditions of consent in Annexure A.

……………………….

G Kullen

Acting Commissioner of the Court

Annexure A (393531, pdf)

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Decision last updated: 20 December 2023