Selim v Strathfield Municipal Council

[2024] NSWLEC 1662

Land and Environment Court

New South Wales

Medium Neutral Citation:

Selim v Strathfield Municipal Council [2024] NSWLEC 1662

Hearing dates:

Conciliation conference held on 22 August 2024

Date of orders:

22 October 2024

Decision date:

22 October 2024

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 to the development application, as agreed or assessed, such amount to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development Application No DA 2023.99 as amended for alterations and additions to existing childcare centre to increase the capacity of the childcare centre by an additional 10 children to a total capacity of 58 children, and extension of operating hours to include Saturdays from 8:00am to 5:00pm for 10 children on the first floor addition only, at 6 Torrington Road, Strathfield, 2135, legally known as Lot A1 in DP 368736, is determined by the grant of development consent, subject to the conditions of consent at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.46, 8.15, 8.7, Sch 1, Div 2, s 7

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations 2011, regs 107, 108

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Strathfield Local Environmental Plan 2012, cll 2.2, 2.3, 2.7, 4.3, 4.4, 6.1, 6.2, 6.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, Ch 3, ss 3.22, 3.23, 3.25

Texts Cited:

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

Strathfield Community Participation Plan 2019

Strathfield Consolidated Development Control Plan 2005

Category:

Principal judgment

Parties:

Sheriff Selim (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
M Harker (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Strathfield Municipal Council (Respondent)

File Number(s):

2023/316883

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Development consent is sought for alterations and additions to an existing childcare centre to increase the capacity of the childcare centre by an additional 10 children to a total capacity of 58 children and extension of operating hours to include Saturdays from 8:00am to 5:00pm. The proposal also includes one additional staff member, an increase from nine to ten staff. The proposed development is on land at 6 Torrington Road, Strathfield, 2135, legally known as Lot A1 in DP 368736 (the site).

Evolution of the Appeal

2. Development Application DA 2023.99 (the DA) was lodged by the Applicant with Strathfield Municipal Council (the Respondent) on 14 August 2023, seeking development consent for alterations and additions to the existing childcare centre to increase the capacity of the childcare centre by an additional 10 children to a total capacity of 58 children and extension of operating hours to include Saturdays from 8:00am to 5:00pm.

3. The DA was publicly notified in accordance with the Strathfield Community Participation Plan 2019 (SCPP) from 18 August 2023 to 8 September 2023. Nine submissions were received by the Respondent during the notification period.

4. On 6 October 2023, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of the DA by the Respondent.

5. On 8 March 2024, the Court arranged a s 34 conciliation conference on site pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The parties were unable to reach an agreement at that time and the s 34 conciliation conference was terminated on that date.

The Hearing

6. The Hearing commenced with an on-site view. One submitter attended the site view and made a submission.

7. Following the on-site view, the parties indicated that they had reached a s 34 agreement in principle and an application was made to the Court to list the matter for a s 34 conciliation conference on 22 August 2024.

8. The s 34 agreement was based on an amended DA which addressed a number of concerns raised by the Respondent and by the submitter.

9. The parties advise that following the Joint Expert Reports of the parties’ Traffic, Town Planning and Acoustic experts, and the consideration of submissions made objecting to the proposed development, the DA was amended to provide for the following key changes to the proposed development:

1. relocation of an external stairway closer to the core of the building which increases the side setback;

2. introduction of a car stacker to increase the amount of off-street parking;

3. provision of a second stairway within the southern setback to address fire egress considerations and increases to the height of first floor acoustic screens to protect the amenity of the adjoining developments; and

4. reduction to only 10 children to be at the centre on Saturdays between the hours of 8am to 5pm in the new first floor indoor/outdoor play area.

10. The parties advised that they considered that collectively, the amendments represent a better environmental planning outcome, as the changes reduce the opportunity for adverse impacts on neighbours, improve the streetscape appearance of the development from Torrington Road and provide greater safety to children and carers in the instance of a fire.

The s 34 Conciliation Conference

11. At the conciliation conference on 22 August 2024, the parties confirmed that they had generally reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, based on the amended DA. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

12. A signed s 34 agreement with Annexure A and amended plans (the amended DA) as agreed between the parties were filed with the Court on 22 August 2024. Upon the filing of the s 34 agreement, the Hearing was adjourned. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

13. 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.

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

15. 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 below.

Jurisdictional Matters

Owner’s consent

16. The parties advise that owner’s consent was provided by the registered proprietor of the property accompanied the DA in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021.

Community Participation (Sch 1, Div 2, s 7(1)) - Environmental Planning and Assessment Act1979

17. The DA was publicly notified in accordance with the SCPP and Sch 1, Div 2, s 7 of the EPA Act from 18 August 2023 to 8 September 2023. The Respondent received nine submissions from the public during the public notification period.

18. The parties advise that pursuant to clause 5.12 of the SCPP, the amended DA does not require renotification as the proposed development as amended will not give rise to additional environmental impacts.

Integrated Development

19. The parties advise that the DA is not integrated development as defined under s 4.46 of the EPA Act.

Conditions

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

Strathfield Environmental Plan 2012

21. The Strathfield Local Environmental Plan 2012 (the LEP) is the relevant local environmental planning instrument that applies to the site. Under the LEP provisions:

1. The site is zoned R2 Low Density Residential pursuant to cl 2.2 of the LEP; and

1. Pursuant to cl 2.3 of the LEP, the proposed development for centre-based child care facilities is permissible with consent in the R2 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. Clause 2.7 of the LEP provides that the demolition of a building or work requires development consent. The proposal involves a small amount of demolition in association with the construction work;

3. Pursuant to cl 4.3 of the LEP, the maximum height of buildings (HOB) on the site is 9.5 metres; and

1. The building has a maximum height of 8.4 metres, in compliance with the HOB development standard;

4. Pursuant to cl 4.4 of the LEP, the maximum Floor Space Ratio (FSR) for the site is 0.5:1; and

1. The proposed development has a FSR of 0.35:1, in compliance with this development standard; and

2. Under s 3.25 of the State Environmental Planning policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), development consent must not be granted for the purposes of a centre-based child care facility in Zone R2 Low Density Residential if the FSR for the building on the site of the facility exceeds 0.5:1 (Refer to [30] below). The proposed development complies with s 3.25 of the Transport and Infrastructure SEPP;

5. Clause 6.1 of the LEP relates to Acid Sulfate Soils (ASS). The parties advise that:

1. The DA is accompanied by a Geotechnical report prepared by STS Geotechnics Pty Ltd which concludes that the site is likely to be underlain by residual soils overlying Ashfield Shale. The site conditions are not consistent with the geomorphic criteria necessary for the presence of ASS; and

2. In addition, it is not expected to encounter groundwater during construction necessitating dewatering and therefore site development is unlikely to result in the lowering of the groundwater where nearby ASS may be present and will not expose ASS to oxidation. Accordingly, the proposed construction will not require the preparation of an Acid Sulfate Soil Management Plan;

6. Clause 6.2 of the LEP relates to earthworks. The parties advise that:

1. The proposed development involves the carrying out of earthworks associated with the construction of footings, the lift pit and the mechanical car stacker. The extent of excavation is not excessive and adequately setback from common boundaries to ensure the amenity and stability of adjoining properties is maintained; and

2. The DA was accompanied by a Geotechnical report prepared by STS Geotechnics Pty Ltd and each matter required by cl 6.2(3)(a)-(h) has been addressed and considered by the Respondent.

7. Clause 6.4 of the LEP relates to Essential Services. The site is occupied by an existing child care centre and the parties advise that adequate arrangements are in place for the availability of the supply of water, electricity, sewage management, stormwater drainage and road access for the site.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

22. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the proposed development as the site is located within the Sydney Harbour Catchment. The Biodiversity SEPP seeks to manage and promote integrated catchment management policies.

23. The parties advise that the Court could be satisfied that the proposed development:

1. Will have a neutral impact on the quality of water entering into Sydney Harbour; and

2. Will not adversely impact on water flow into a natural waterbody.

State Environmental Planning Policy (Resilience and Hazards) 2021

24. 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.

25. The parties advise that the historic use of the site is for residential purposes, and a review of the available history for the site gives no indication that the land associated with the proposed development is contaminated. There were no historic uses identified that would trigger further site investigation.

26. 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

27. Chapter 3 of the Transport and Infrastructure SEPP aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW.

28. Under s 3.22 of the Transport and Infrastructure SEPP – Centre-based child care facility, the concurrence of the Regulatory Authority is required for certain development: The parties advise that:

1. The proposed development provides a compliant floor area pursuant to reg 107 of the Education and Care Services National Regulations 2011 (the Regulations) and compliant outdoor space pursuant to reg 108 of the Regulations. As the proposed development demonstrates compliance with regs 107 and 108, concurrence from the Regulatory Authority under s 3.22 is not required.

29. Under s 3.23 of the Transport and Infrastructure SEPP - Centre-based child care facility - matters for consideration by consent authorities, a consent authority must consider applicable provisions of the Child Care Planning Guideline 2021 (the Guideline).

30. Section 3.25 of the Transport and Infrastructure SEPP provides that development consent must not be granted for the purposes of a centre-based child care facility in Zone R2 Low Density Residential if the FSR for the building on the site of the facility exceeds 0.5:1. The parties advise that the amended DA has a FSR of 0.35:1, thus complying with this requirement;

31. Section 3.26 of the Transport and Infrastructure SEPP in particular contains non-discretionary development standards for centre-based child care centres; and the parties submit that the amended DA:

1. Is not located in an area which contains an excessive number of child care centres;

2. Complies with the indoor and outdoor space requirements of the Regulations; and

3. Will occur on a site that is sufficiently sized, in terms of its width and depth to accommodate the development.

Education and Care Service National Regulations 2011

32. The Regulations provide extensive controls and requirements in addition to that of Local Environmental Plans and Development Control Plans and includes licensing and approvals processes, including documentation requirements; facilities and equipment requirements; staffing requirements; child number requirements; operational requirements; administrative requirements; and probity check requirements; and

1. The parties advise that the amended DA has been assessed as complying with the Regulations.

Child Care Planning Guideline 2021

33. The Guideline establishes the assessment framework to deliver consistent planning outcomes and design quality for centre-based child care facilities in NSW. Section 3.23 of the Transport and Infrastructure SEPP requires that the consent authority must take into consideration any applicable provisions of the Guideline before determining a development application; and

1. The parties advise that the Respondent has taken into consideration the Guideline in the assessment of the DA.

Strathfield Consolidated Development Control Plan 2005

34. Strathfield Consolidated Development Control Plan 2005 applies to the site; and

1. The parties advise that the amended DA can be approved taking into consideration the matters in subss 4.15(1)(b) – (e) of the EPA Act.

Conclusion

35. Having considered the advice of the parties provided above at [17]-[34], I am satisfied that:

1. The Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. Approval of the proposed development is in the public interest.

36. Further, 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.

37. 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.

38. The Court notes:

1. That Strathfield Municipal Council, as the 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 No DA2023.99 made on 22 August 2024 to rely on the documents and plans specified below (the amended development application):

1. Architectural Plans prepared by ‘Design Link Australia Pty Ltd’.

2. Drawing Nos. DA01 to DA03, DA05 to DA18, Issue J and dated 20 August 2024.

3. Drawing No. DA04, issue K and dated 21 August 2024.

4. Specifications for car stacker produced by ‘Klaus Multiparking’ dated April 2023.

5. Letter of owner’s consent dated 1 August 2023.

6. Environmental Noise Assessment prepared by ‘Day Design Pty Ltd’ and dated 30 July 2024.

7. Further Acoustic Assessment prepared by ‘Day Design Pty Ltd’ and dated 19 August 2024.

8. Survey Report prepared by ‘H Ramsay & Co’ and dated 11 June 2024.

9. Survey Plans prepared by ‘H Ramsay and Co’.

10. Plan Showing Details and Levels dated 27 October 2023 and Sheet No.1 of 6.

11. Plan Showing Internal Dimensions dated 11 June 2024 and Sheet No. 3A of 6.

12. Plan Showing Internal Dimensions dated 28 November 2020 and Sheet No. 3B of 6.

13. Plan Showing Internal Dimensions dated 28 November 2020 and Sheet No. 3C of 6.

14. Plan Showing Internal Dimensions dated 28 November 2020 and Sheet No. 3D of 6.

15. Plan Showing Street Elevation 1 dated 27 October 2023 and Sheet No. 4 of 6.

16. Plan Showing Street Elevation 2 dated 27 October 2023 and Sheet No. 5 of 6.

17. Plan Showing Section 1 and 2 dated 27 October 2023 and Sheet No. 6 of 6.

18. Landscape Plan prepared by ‘Outside in Design Group’, issue B, dated 17 June 2023 and drawing No. L-01_A3.

19. Cost of Works Estimate prepared by ‘Perennial Building Group’ and dated 19 August 2024.

20. Daily Program for first floor.

21. Traffic letter prepared by Wongala Consulting Engineers and dated 19 August 2024.

22. Geotechnical Assessment prepared by ‘STS Geotechnics Pty Ltd and dated August 2024.

23. Amended Plan of Management prepared by Woodgreen Early Education Centre dated 21 August 2024.

39. 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 to the development application, as agreed or assessed, such amount to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. Development Application No DA 2023.99 as amended for alterations and additions to existing childcare centre to increase the capacity of the childcare centre by an additional 10 children to a total capacity of 58 children, and extension of operating hours to include Saturdays from 8:00am to 5:00pm for 10 children on the first floor addition only, at 6 Torrington Road, Strathfield, 2135, legally known as Lot A1 in DP 368736, is determined by the grant of development consent, subject to the conditions of consent at Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 22 October 2024