Selim v City of Canada Bay Council

[2020] NSWLEC 1403

Land and Environment Court

New South Wales

Medium Neutral Citation:

Selim v City of Canada Bay Council [2020] NSWLEC 1403

Hearing dates:

Conciliation conference on 6 August 2020

Date of orders:

01 September 2020

Decision date:

01 September 2020

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the development application in the sum of $17,500.00 within 28 days from the date of these orders.

(3) The appeal is upheld.

(4) Development Application No. DA 2017/0535 for the demolition of existing dwelling houses and all other existing structures from the site, and the construction of part one and part two storey child care centre for 56 children, with basement parking for 14 cars on the land known as 16 & 18 Salt Street, Concord NSW is approved subject to the conditions in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – Conciliation Conference – childcare centre – agreement between the parties

Legislation Cited:

Canada Bay Local Environmental Plan 2013

Children (Education and Care Services) Supplementary Provisions Regulation 2012

Education and Care Services National Regulations

Environmental Planning and Assessment Act 1979

Establishments and Child Care Facilities) 2017

Land and Environment Court Act 1979

State Environmental Planning Policy (Educational

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy No 64 – Advertising and Signage

Texts Cited:

Child Care Planning Guideline

City of Canada Bay Development Control Plan 2017

Category:

Principal judgment

Parties:

Raouf Selim (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
M Hanna (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2019/93150

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to provisions of s 8.7(1) of the Environmental Planning and Assessment Act1979 (EPA Act) against refusal of the Applicant’s development application DA 2017/0535 seeking consent for the demolition of existing structures and construction of a new two storey building with basement car parking to be used as a childcare centre, providing for 60 children at a site legally described as Lot C in Deposited Plan 313778 and Lot 13 in Deposited Plan 4931, with a street address of Nos. 16-18 Salt Street, Concord (the Site). The Land and Environment Court may dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) the Land and Environment Court Act 1979 (LEC Act).

2. The Court has the statutory power as consent authority to determine the proceedings pursuant to s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which has been held on 6 August 2020. I have presided over the conciliation conference.

4. 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 seeking leave to rely on amended plans, costs, upholding the appeal and granting development consent subject to conditions.

5. The development application (as amended) DA 2017/0535 seeks approval for the demolition of existing dwelling houses and all other existing structures from the Site, and the construction of part one and part two storey child care centre for 56 children, with basement parking for 14 cars on the land known as 16 & 18 Salt Street, Concord NSW legally described as Lot C in Deposited Plan 313778 and Lot 13 in Deposited Plan 4931 (the Proposed Development).

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

Jurisdictional considerations

7. 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 I considered these giving my reasons as set out below.

8. The Applicant is the owner of the Site. The landowner of the Site of the Proposed Development provided their consent to the development application when it was lodged with the Respondent.

9. The Proposed Development was appropriately notified by the Respondent pursuant to the EPA Act, between 3 January 2018 and 31 January 2018 and in accordance with the City of Canada Bay Development Control Plan 2017 (CDCP). The parties advised and I accept that notification of the amended plans has been appropriately carried out in accordance with the CDCP.

10. The Site is located within the R2 Low Density Residential zone under the Canada Bay Local Environmental Plan 2013 (CLEP 2013). The Proposed Development is defined as a centre-based child care facility which is permissible with consent within the R2 Low Density Residential zone.

1. I have reviewed the Land Use Table and it is my view that the Proposed Development is permissible with consent because the Applicant proposes to develop a centre-based child care facility being a development expressly listed as permitted with consent in the Land Use Table of R2 Low Density Residential Zone in the CLEP 2013.

11. Clause 6.1 of the CLEP 2013 deals with acid sulfate soils and is relevant to the Proposed Development as a result of the Site being located on class 5 land and is within 500m of class 2 land. Consideration of the works specified in the Proposed Development is relevant in order to determine if an acid sulfate soils management plan is required to be prepared prior to granting consent as required by cl 6.1(3). Relevantly, cl 6.1(2) provides the following with respect to class 5 land and the preparation of an acid sulfate soils management plan:

Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

1. The Proposed Development includes details of the basement works and I note that the finished floor level (FFL) of the Basement will not result in the lowering of water table on adjacent class 2 land. As such it is my view that the preparation of an acid sulfate soils management plan is not required and that the court may grant the consent sought for the Proposed Development without an acid sulfate soils management plan.

12. Clause 6.2 of CLEP 2013 titled Earthworks is relevant as the Proposed Development will require excavation for and construction of a basement. Clause 6.2(3) states that before granting consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters:

(a)  the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b)  the effect of the development on the likely future use or redevelopment of the land,

(c)  the quality of the fill or the soil to be excavated, or both,

(d)  the effect of the development on the existing and likely amenity of adjoining properties,

(e)  the source of any fill material and the destination of any excavated material,

(f)  the likelihood of disturbing relics,

(g)  the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h)  any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

13. I note that the Respondent has assessed and considers acceptable these matters relating to earthworks and I am of the view the Proposed Development requires these matters to be considered and addressed in the consent conditions. I note and accept that these matters are considered and addressed in the proposed Conditions of consent which provide for the following:

1. Development to be carried out substantially in accordance with plans and documents including Stormwater Plans dated 2 December 2019 by United Consulting Engineers Pty Ltd (condition 1);

2. Dilapidation report (condition 49);

3. Geo-technical Report (condition 50);

4. Support and Protection for Neighbouring Buildings (condition 51); and

5. Fill material (condition 11)

14. Clause 7 of the State Environmental Planning Policy No 55 – Remediation of Land requires the Court as consent authority to not grant consent to the carrying out of any development on land unless it has considered whether the land is contaminated.

1. I have considered the Statement of Environmental Effects dated 17 December 2017 prepared by Chapman Planning (SEE) and on the basis of the following paragraph at 4.3 of the SEE, I am satisfied that I have considered whether the land is contaminated and that consent may be granted:

“The development site has been (historically) used as residential accommodation and there is no evidence of potentially contaminating activities occurring on site.”

15. Part 3 of the State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017 (Child Care SEPP) contains provisions which apply to centre based child care facilities in particular cll 22 and 23.   

1. Clause 22(2) provides that the consent authority must not grant development consent to development to which this clause applies except with the concurrence of the Regulatory Authority.

2. Clause 22(1) sets out the circumstances for when the clause applies as follows:

(1)   This clause applies to development for the purpose of a centre-based child care facility if—

(a)  the floor area of the building or place does not comply with regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, or

(b)  the outdoor space requirements for the building or place do not comply with regulation 108 (outdoor unencumbered space requirements) of those Regulations.

3. The Proposed Development complies with cl 107 of the Education and Care Services National Regulations Children (Education and Care Services) Supplementary Provisions Regulation 2012 in that the architectural plans indicate compliance, in particular drawing A903 specifies that the required indoor space to be 3.25 square metres per child being a total of 182.00 square metres whereas the indoor space provided exceeds this by providing 195.05 square metres.

4. The Proposed Development complies with cl 108 of the Education and Care Services National Regulations Children (Education and Care Services) Supplementary Provisions Regulation 2012 in that drawing A903 indicates the required outdoor space to be 7 square metres per child being a total of 392.00 square metres whereas the indoor space provided exceeds this by providing 392.5 square metres. I note also that consent condition 94 also addresses the number and age of children in external play areas.

5. I also note that cl 4 of the Amended Operation Plan of Management – Child Care Centre dated 13 March 2020 provides an obligation on the childcare operator to be responsible to ensure that no obstructions are put in place to ensure there is a minimum of 3.25m² of unencumbered internal area and 7m² of unencumbered external play area per child on site at any one time.

6. I am satisfied that as compliance with cll 107 and 108 of the Education and Care Services National Regulations Children (Education and Care Services) Supplementary Provisions Regulation 2012 has been achieved, cl 22 of the Child Care SEPP does not apply and therefore concurrence of the Regulatory Authority is not required.

7. Clause 23 of the Child Care SEPP provides that before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline (the Guidelines), in relation to the Proposed Development.

8. These guidelines have been addressed in the Statement of Environmental Effects dated 17 December 2017 prepared by Chapman Planning Pty Ltd and in a letter dated 2 May 2019 prepared by Chapman Planning Pty Ltd. The amended plans provided by the Applicant address the previous contentions raised by the Respondent in relation to non-compliances with the Guidelines. These are set out in the letter dated 2 May 2019 prepared by Chapman Planning Pty Ltd and specifically in the table on page 3 of that letter which include location, indoor or outdoor space, site area and site dimensions and design principles. The Amended Operational Plan of Management dated 13 March 2020 also addressed and complies with the Guidelines.

1. I have considered and I am satisfied that the Respondent has considered the applicable provisions of the Child Care Planning Guidelines which are addressed in the Statement of Environmental Effects and letter of 2 May 2019 both prepared by Chapman Planning Pty Ltd together with the Amended Operational Plan of Management dated 13 March 2020.

16. The relevant provisions of the Education and Care Services National Regulations including the Children (Education and Care Services) Supplementary Provisions Regulation 2012 are addressed by the Proposed Development. In particular, Part 3 – Facilities and Equipment Requirements as follows:

1. The child care centre has been designed in accordance with Part 3 Facilities and Equipment Requirements of the Regulations. The key provisions are summarised in the list below:

1. The proposed child care centre will include:

1. Office administration area and staff rooms;

2. Indoor space (unencumbered) of 3.25m2 per child;

3. Outdoor space of 7m² per child;

4. A laundry facility at the Site;

5. Craft sinks and areas in the play rooms;

6. A food preparation – kitchen area where children are prevented from accessing;

7. Nominated children toilet facilities;

8. A nappy changing area;

9. A sleeping area- cot room; and

10. Storage areas adjoining the Playrooms and outdoor space.

2. I am satisfied that the Proposed Development addresses the requirements of the Education and Care Services National Regulations in that the Proposed Development has been designed to meet the above requirements and the numerical provisions (indoor and outdoor areas) required by the Child Care SEPP.

17. For the reasons set out above it is my view that the jurisdictional prerequisites have been satisfied and 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 am required to dispose of the proceedings in accordance with the parties’ decision.

Orders

18. The Court orders:

1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979 (“EP&A Act”), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the development application in the sum of $17,500.00 within 28 days from the date of these orders.

3. The appeal is upheld.

4. Development Application No. DA 2017/0535 for the demolition of existing dwelling houses and all other existing structures from the Site, and the construction of part one and part two storey child care centre for 56 children, with basement parking for 14 cars on the land known as 16 & 18 Salt Street, Concord NSW is approved subject to the conditions in Annexure ‘A’.

………………………………….

E Espinosa

Commissioner of the Court

Annexure A (426071, pdf)

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Decision last updated: 01 September 2020