Sande v The Hills Shire Council

[2023] NSWLEC 1719

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sande v The Hills Shire Council [2023] NSWLEC 1719

Hearing dates:

Conciliation conference 17 November 2023

Date of orders:

28 November 2023

Decision date:

28 November 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1) The Applicant’s are 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 s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $82,000.00 within 28 days of the date of these orders.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA156/2023/HA for the demolition of existing structures, construction of a 76 (seventy-six) place centre-based child care facility, outdoor play areas, basement car parking and landscaping at 134-134A and 136 Showground Road, Castle Hill NSW 2154, subject to the conditions in the Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: demolition and centre based child care centre and associated works – amended plans – conciliation conference – agreement between the parties – orders made.

Legislation Cited:

Education and Care Services National Regulations 2011 regs 107, 108, 109, 110, 111, 112, 113, 114, 115

Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 4.55, 8.7

Environmental Planning and Assessment Regulation 2021 s 23, 38

Land and Environment Court Act 1979 s 34

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

State Environmental Planning Policy (Transport and Infrastructure) 2021 ss 2.119, 3.22, 3.23, Ch 3

Texts Cited:

Hills Development Control Plan 2012

NSW Department of Planning, Industry and Environment, Child Care Planning Guidelines 2021

Category:

Principal judgment

Parties:

Mario Sande (First Applicant)
Louis Sande (Second Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
G Pavlis (Solicitor) (Applicants)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicants)
Hall & Willcox (Respondent)

File Number(s):

2023/66735

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application for demolition of existing structures and construction of a 76 place centre- based childcare centre facility, outdoor play areas, basement parking and landscaping. The development is proposed at 134A and 136 Showground Road, Castle Hill (Lot 405 DP860609 and Lot 1222 DP 872924). The Applicant’s appeal against the deemed refusal of their development application, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 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.

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 24 August 2023. That conciliation conference was terminated on 28 September 2023.

3. Following the conciliation conference, the parties continued without prejudice discussions and on 13 November 2023 sought orders for a further conciliation conference. A further conciliation conference was listed for 17 November 2023. I presided over the further conciliation conference. At that conciliation conference, the parties reached agreement based on amendments to the application and imposition of conditions of consent. The amendments to the development include a reduction in the number of children accommodated at the facility from 100 to 76 children.

4. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction on the basis that:

1. The development application was lodged with the consent of the Applicants, whom are the owners of the site as required by s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies. As required by s 4.6 of SEPP RH, consideration has been given as to whether the subject site is contaminated, and if it is, that the consent authority is satisfied that the land is suitable (or will be after remediation) for the proposed use. The development application includes a Preliminary Site Investigation of the site which includes recommendations for the implementation of the development. That report concludes that, subject to implementation of its recommendations, the potential for significant contamination of the soil and ground water within the site is low and that the site is suitable for the proposed development. The annexed conditions of consent include the requirement to comply with the recommendations of the report. Therefore, the requirements of s 4.6 of SEPP RH are met.

3. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the development application in two ways, firstly as the site has frontage to a classified road and secondly as the development seeks consent for a child care facilities.

Classified Road Provisions

1. Section 2.119 applies as the site fronts Showground Road, a classified road. Applying s 2.119(2), the consent authority cannot grant consent to a development with frontage to a classified road unless it is satisfied that:

(a)  where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b)  the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i)  the design of the vehicular access to the land, or

(ii)  the emission of smoke or dust from the development, or

(iii)  the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c)  the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

2. The development application is accompanied by a Traffic Impact Assessment which demonstrate that the development will not adversely impact the safety, efficiency or ongoing operation of Showground Road. The development application was sent to Transport for NSW for comment. Their requirements are incorporated in the annexed conditions.

3. Further, the development application is accompanied by an acoustic assessment which assesses the impact on the development from road traffic and concludes that, subject to the nominated recommendations, predicted internal noise levels are acceptable. On the preceding basis, I am satisfied that the requirements of s 2.119 of SEPP TI are met.

Child care provisions

1. Chapter 3 of SEPP TI contains provisions in relation to child care facilities.

2. Pursuant to s 3.22(1) of SEPP TI, the proposed development meets the required quantum of unencumbered outdoor and indoor space per child set out in the Education and Care Services National Regulations 2011 (Education and Care Regulation). As such concurrence of the Regulatory Authority is not required.

3. Pursuant to s 3.23 of SEPP TI, in determining the development application I am required to take into account the NSW Department of Planning, Industry and Environment Child Care Planning Guidelines 2021 (Child Care Planning Guidelines). The Statement of Environmental Effects accompanying the development application details the compliance of the development with the guidelines. I am satisfied that the Child Care Planning Guidelines have been considered.

4. Further, s 3.26 of SEPP TI details non discretionary development standards. The parties agree and I accept that the development application complies with these standards.

1. The Child Care Planning Guidelines apply to the development. The Education and Care Regulation generally regulates the operation of Childcare centres and includes the following prescriptive controls with which the Proposed Development complies:

1. a minimum of 3.25m² of unencumbered indoor space is provided for each child (reg 107);

2. a minimum of 7m² of unencumbered outdoor space is provided for each child (reg 108);

3. adequate toilet facilities are provided in the development (reg 109);

4. the development is provided with indoor spaces that are adequately ventilated, have access to natural light and are capable of being maintained at a suitable temperature (reg 110);

5. adequate administrative and nappy change spaces are provided (regs 111-112); and

6. the development is designed with outdoor spaces that allow children to play and explore, with suitable shading and overall facilitates supervision (regs 113-115).

2. The Hills Development Control Plan 2012 (DCP 2012) applies to the site. The Statement of Facts and Contentions notes the compliance of the proposed development with DCP 2012. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

3. The development application was notified by The Hills Shire Council from 15 November to 6 December 2022 and two submissions were received.

5. 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)).

6. 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 ss 4.55(3) and 4.15(1) of the EPA Act.

7. The Court notes that:

1. The Hills Shire Council has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No DA156/2023/HA to rely upon the following amended plans and documents

Architectural Plans
Cover Page	0	Designcorp	I	19 Sep 2023
LEP/DCP Controls	1	Designcorp	I	19 Sep 2023
Site Context	2	Designcorp	I	19 Sep 2023
Site Analysis	3	Designcorp	I	19 Sep 2023
Site Plan	4	Designcorp	I	19 Sep 2023
Basement Floor Plan	5	Designcorp	I	19 Sep 2023
Ground Floor Plan	6	Designcorp	I	19 Sep 2023
First Floor Plan	7	Designcorp	I	19 Sep 2023
Elevations	8	Designcorp	I	19 Sep 2023
Section	9	Designcorp	I	19 Sep 2023
3D Perspectives	10	Designcorp	I	19 Sep 2023
3D Perspectives	11	Designcorp	I	19 Sep 2023
Shadows – Jun	12	Designcorp	I	19 Sep 2023
Materials & Finishes	13	Designcorp	I	19 Sep 2023
Ground Floor Play Area Plan	14	Designcorp	I	19 Sep 2023
First Floor Play Area Plan	15	Designcorp	I	19 Sep 2023
Ground Floor Plau Area Plan	16	Designcorp	I	19 Sep 2023
Driveway Location	17	Designcorp	I	19 Sep 2023
Landscape Plans
Hardscape	1	Conzept	K	18 Sep 2023
Landscape Plan	2	Conzept	K	18 Sep 2023
Landscape Plan	3	Conzept	K	18 Sep 2023
Details & Specification	4	Conzept	K	18 Sep 2023
Details	5	Conzept	K	18 Sep 2023
Details	6	Conzept	K	18 Sep 2023
Details	7	Conzept	K	18 Sep 2023
Outdoor Play Area & Shade Area Calculations	8	Conzept	K	18 Sep 2023
Planting Images	9	Conzept	K	18 Sep 2023
Stormwater Plans
Cover Sheet	SW001	Capital Engineering Consultants	G	25 Sep 2023
Basement Floor Plan, Notes & Details, 1 of 2	SW010	Capital Engineering Consultants	G	25 Sep 2023
Basement Floor Plan, Notes & Details, 2 of 2	SW011	Capital Engineering Consultants	G	25 Sep 2023
Ground Floor Plan, Notes & Details, 1 of 4	SW020	Capital Engineering Consultants	G	25 Sep 2023
Ground Floor Plan, Notes & Details, 2 of 4	SW021	Capital Engineering Consultants	G	25 Sep 2023
Ground Floor Plan, Notes & Details, 3 of 4	SW022	Capital Engineering Consultants	G	25 Sep 2023
Ground Floor Plan, Notes & Details, 4 of 4	SW022	Capital Engineering Consultants	G	25 Sep 2023
WSUD Catchment Plan & Calculations	SW030	Capital Engineering Consultants	G	25 Sep 2023
First Floor Plan, Notes & Details	SW040	Capital Engineering Consultants	G	25 Sep 2023
Roof Plan, Notes & Details	SW050	Capital Engineering Consultants	G	25 Sep 2023
Erosion & Sediment Control Plan, Notes & Details	ER001	Capital Engineering Consultants	G	25 Sep 2023
Cut & Fill/Ret. Wall Plan & Analysis	CF001	Capital Engineering Consultants	B	7 Jun 2023
Pre & Post Development Catchment for TfNSW	RMS001	Capital Engineering Consultants	G	25 Sep 2023
Stormwater Discharge Calculations		Capital Engineering Consultants	-	25 Sep 2023
Traffic Report		TTPP	-	6 Sep 2023
Risk Management Strategy		TTPP	-	26 Sep 2023
Plan of Management		-	-	26 Sep 2023
Environmental Noise Impact Assessment		Day Design	D	20 Sep 2023
Preliminary Construction Management Plan		ECON	B	18 Sep 2023
Evacuation Diagrams
Basement		SPS	-	18 Sep 2023
Ground Floor		SPS	-	18 Sep 2023
First Floor		SPS	-	18 Sep 2023
Survey Plan
Survey Plan		NSW Land Services	-	16 May 2023

1. The Applicant filed the amended development application with the Court on 10 November 2023.

8. The Court orders that:

1. The Applicant’s are 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 s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $82,000.00 within 28 days of the date of these orders.

2. The appeal is upheld.

3. Development consent is granted to development application DA156/2023/HA for the demolition of existing structures, construction of a 76 (seventy-six) place centre-based child care facility, outdoor play areas, basement car parking and landscaping at 134-134A and 136 Showground Road, Castle Hill NSW 2154, subject to the conditions in the Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A

Decision last updated: 28 November 2023