Sayed v Liverpool City Council

[2023] NSWLEC 1761

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sayed v Liverpool City Council [2023] NSWLEC 1761

Hearing dates:

Conciliation conference 8, 11 December 2023

Date of orders:

11 December 2023

Decision date:

11 December 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA1030/2020 for demolition of a single storey dwelling house and construction of a part single / part double storey child care centre to cater for 57 children at 26 Nineteenth Avenue, Hoxton Park NSW 2171 (legally described as Lot 798 DP 847956) is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords:

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

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cl 7.31

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 22, 23, 25

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Sch 9, s 1

Texts Cited:

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

Category:

Principal judgment

Parties:

Mohamed Sayed (First Applicant)
Ghiwa Dannaoui (Second Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Adam and Dean Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/57691

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for a centre-based childcare facility at 26 Nineteenth Avenue, Hoxton Park. The development application was refused on 31 October 2022. The applicant appeals against that decision, 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. The final orders in this appeal, outlined in [9] 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 8 December 2023. I presided over the conciliation conference.

3. At the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement, the final version of which was submitted on 11 December 2023, and follows the agreement of the Council to an amendment to the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). The amendments include the provision of the landscaping plan and additional detail of dimensions on the architectural plans.

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 signed agreement is supported by a Jurisdictional Note that sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

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 site is zoned R2 Low Density Residential pursuant to the Liverpool Local Environmental Plan 2008 (LLEP) and development for the purposes of a centre-based childcare facility is permissible with development consent in the zone.

• The proposed development complies with the applicable development standards for height and floor space ratio that apply to the site pursuant to the LLEP.

• The development application includes earthworks for the construction of a basement for car parking. Based on the Jurisdictional Note, the stormwater plans provided in August 2023 and the amended waste management plan, I have considered the matters set out in cl 7.31 of the LLEP.

• The State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Childcare SEPP) continues to apply to the proposed development, despite its repeal, pursuant to the savings provision in s 1 of Sch 9 of the State Environmental Planning Policy (Transport and Infrastructure) 2021. The proposed development complies with the requirements for unencumbered indoor and outdoor space, and therefore concurrence of the Regulatory Authority is not required by cl 22 of the Childcare SEPP. 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 and the Jurisdictional Note, I have considered the applicable provisions of the Child Care Planning Guideline.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The development application was notified between 5 and 22 February 2021, and an amended development application was notified between 17 and 31 August 2023. I have considered the submissions received in the first notification period. No submissions were received on the second notification.

6. 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)).

7. 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.

8. The Court notes:

1. Liverpool City Council, as the relevant consent authority for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicants amending Development Application No. DA-1030/2020 (amended DA) to rely on the following amended plans and additional material:

1. Amended Architectural Plans, prepared by Janssen Designs, being:

Plan Name	Sheet Number	Revision	Date
Cover Page	A000	E	7 November 2023
Calculations & LEP Controls	A001	E	7 November 2023
Site Context Plan	A002	D	25 October 2023
Site Analysis Plan	A003	D	25 October 2023
Demolition Plan	A004	D	25 October 2023
Site Plan	A005	E	7 November 2023
Basement Plan	A006	D	25 October 2023
Ground Floor Plan	A007	E	7 November 2023
First Floor Plan	A008	D	25 October 2023
Roof Plan	A009	D	25 October 2023
Elevations	A010	E	7 November 2023
Sections	A011	D	25 October 2023
Perspective Images	A012	D	25 October 2023
Perspective Images	A013	D	25 October 2023
Shadow Diagrams	A014	D	25 October 2023
Emergency Evacuation Plan – Ground Floor	A015	E	7 November 2023
Emergency Evacuation Plan – First Floor	A016	D	25 October 2023
OPA Calculation Diagram – Ground Floor	A017	E	7 November 2023
OPA Calculation Diagram – First Floor	A018	D	25 October 2023
Landscape Area Calculation Diagram	A019	E	7 November 2023
Nappy Change 1 – Detail Plan	A020	D	25 October 2023
Kids WC 1 – Detail Plan	A021	D	25 October 2023
Nappy Change 2 – Detail Plan	A022	D	25 October 2023
Gross Floor Area Calculation Diagram – Ground Floor	G001	E	7 November 2023
Gross Floor Area Calculation Diagram – First Floor	G002	D	25 October 2023

2. Amended Landscaping Plans, prepared by Outside In Design Group, Revision D, dated 15 November 2023, being Dwg No’s 01 and 02;

3. Plan of Management prepared by Jannsen Design, revision B, dated November 2023; and

4. Cost Plan prepared by MCG Quantity Surveyors, dated 6 December 2023.

9. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA1030/2020 for demolition of a single storey dwelling house and construction of a part single / part double storey child care centre to cater for 57 children at 26 Nineteenth Avenue, Hoxton Park NSW 2171 (legally described as Lot 798 DP 847956) is determined by the grant of consent subject to the conditions in Annexure A.

J Gray

Commissioner of the Court

57691.23 Annexure A

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Decision last updated: 11 December 2023