Selim v Strathfield Municipal Council

[2021] NSWLEC 1783

Land and Environment Court

New South Wales

Medium Neutral Citation:

Selim v Strathfield Municipal Council [2021] NSWLEC 1783

Hearing dates:

Conciliation conference on 25 November and 10 December 2021

Date of orders:

22 December 2021

Decision date:

22 December 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA/2021/116 to increase the capacity of an existing child care centre on the land at 6 Torrington Road, Strathfield (Lot A1 in DP 368736) by thirteen (13) children, from thirty-five (35) to forty-eight (48) children, increase in the number of staff from six (6) to nine (9), and provision of an additional parking space within the existing porte cochere area is approved subject to the conditions of consent annexed hereto and marked “A”.

(3) No order as to costs.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Education and Care Services National Regulations, regs 107,108

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 77

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Strathfield Local Environmental Plan 2019, ss 2.3, 4.3, 4.4C, 6.1, 6.2, 6.4, 6.6

Texts Cited:

Department of Planning and Environment, Child Care Planning Guideline, 2017

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Category:

Principal judgment

Parties:

Sheriff Selim (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

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

Solicitors:
Dentons (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/234926

Publication restriction:

No

Judgment

1. COMMISSIONER: Sheriff Selim (the Applicant) has appeal the refusal by Strathfield Municipal Council (the Respondent) of his Development Application number DA/2021/116, made with owner’s consent, seeking consent for an increase in the capacity of an existing childcare centre by thirteen children from 35 to 48 children and an increase in staff from six to nine, along with the provision of additional parking (the Proposed Development) at 6 Torrington Road, Strathfield (the Subject Site).

2. The Respondent had notified the Applicant’s development application pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000, between 28 May and 11 June 2021.

3. The Applicant appealed the refusal of his development application under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) and is determined under s 4.16 of the EP&A Act.

4. On 25 November and 10 December 2021, the Parties participated in a s 34 conciliation conference and reached an in principle agreement regarding the granting of consent to the DA, subject to conditions.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site view was undertaken as part of the conciliation conference, during which submissions were received local residents in relation to the Proposed Development.

6. 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 the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

7. Under s 34(3) of the Land and Environment Court Act 1979 (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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP55), cl 7(1)(a) requires the consent authority to consider whether the land is contaminated. The Parties advise, and I am satisfied that the Subject Site, and the Applicant’s childcare centre which sits thereon, is not considered to be contaminated. The Applicant proposes a continuing and unchanged use of the Subject Site which is an existing use on the Subject Site and no works are proposed as part of the development application to alter the structure of the facility, or the Subject Site;

2. in relation to the provisions of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP Childcare), the Parties advise, and I am satisfied, that:

1. clause 23 of SEPP Childcare requires consent authorities to consider any applicable provisions of the Child Care Planning Guideline. The provisions of the Child Care Planning Guideline were considered at Annexure A to the Applicant’s Statement of Environmental Effects prepared by Planning Ingenuity dated 25 May 2021;

2. clause 25 of SEPP Childcare contains non-discretionary development standard for centre-based child care facilities, and in relation to which:

1. cl 25(2)(b)(i) requires the unencumbered area of indoor space and the unencumbered area of outdoor space to comply with the requirements of regulations 107 and 108 of the Educational and Care Services National Regulations;

2. pursuant to regulation 107, every child at the Applicant’s child care centre must have a minimum of 3.25m² of unencumbered indoor play space, and the Applicant’s dimensioned plans which are referenced in the Parties’ proposed conditions of consent demonstrate that the proposal complies with the minimum 156m² required by regulation 107;

3. pursuant to regulation 108 every child at the Applicant’s child care centre must have a minimum of 7m² of unencumbered outdoor play space and the Applicant’s dimensioned plans which are referenced in the Parties’ proposed conditions of consent demonstrate that the proposal complies with the minimum 336m² required by Regulation 108;

3. in relation to the provisions of Strathfield Local Environmental Plan 2012 (SLEP), the Parties advise, and I am satisfied, that:

1. the Subject Site is situated within Zone R2 Low Density Residential pursuant to the provisions of SLEP pursuant to cl 2.3 of SLEP;

2. development for the purposes of “centre-based child care facilities” is a permitted use with consent within the Zone R2 Low Density Residential applicable to the Subject Site;

3. the Applicant’s development application seeks consent to increase the number of children and staff of an operational childcare centre and no physical work (other than line marking an additional car parking space within an existing porte cochere) is proposed. In those circumstances the following is noted:

1. a maximum building height of 9.5m applies to development on the Subject Site pursuant to cl 4.3 of SLEP. The development application does not alter the existing building height;

2. a maximum floor space ratio of 0.5:1 applies to development the Subject Site pursuant to cl 4.4C of SLEP. The development application does not alter the floor space ratio of the existing building;

3. The Subject Site is identified as containing Class 5 acid sulfate soils in the Acid Sulfate Soils Map referred to in cl 6.1 of SLEP. However, as no works are proposed by the development application the provisions of clause 6.1 does not apply;

4. the provisions of cl 6.2 ‘Earthworks’ of SLEP do not apply in circumstances where no earthworks are proposed;

5. the provisions of clause 6.6 ‘Erection and display of signage’ of SLEP do not apply in circumstances where no additional signage is proposed;

4. the services that are essential for the development are available pursuant to clause 6.4 of SLEP, in circumstances where are currently available to the approved childcare centre.

9. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

10. I am further 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

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

Orders

13. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA/2021/116 to increase the capacity of an existing child care centre on the land at 6 Torrington Road, Strathfield (Lot A1 in DP 368736) by thirteen (13) children, from thirty-five (35) to forty-eight (48) children, increase in the number of staff from six (6) to nine (9), and provision of an additional parking space within the existing porte cochere area is approved subject to the conditions of consent annexed hereto and marked “A”.

3. No order as to costs.

………………………..

M Chilcott

Commissioner of the Court

Annexure A (151761, pdf)

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Decision last updated: 22 December 2021