Serobian v City of Parramatta Council

[2024] NSWLEC 1841

Land and Environment Court

New South Wales

Medium Neutral Citation:

Serobian v City of Parramatta Council [2024] NSWLEC 1841

Hearing dates:

Conciliation conferences on 26 September, 16, 23 and 28 October 2024

Date of orders:

24 December 2024

Decision date:

24 December 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 6/2024, for the demolition of existing buildings, construction of a 2-storey, 63 place childcare centre and related landscaping on the land at 30 Rickard Street, Carlingford NSW 2118, legally known as Lot 1 in Deposited Plan 29201, is determined by the grant of development consent, subject to the conditions included in 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, 8.7, 8.15; Sch 1 Div 2 s 7

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10

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

State Environmental Planning Policy (Sustainable Buildings) 2022, Ch 3

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.25, 3.26

Parramatta Local Environmental Plan 2023, cll 2.2, 2.3, 2.7, 4.3, 4.4, 5.10, 6.1, 6.2, 6.5, 6.7

Texts Cited:

Parramatta Development Control Plan 2023

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

Category:

Principal judgment

Parties:

Patrick Serobian (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
M Parrino (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicant)
City of Parramatta Council Legal Services (Respondent)

File Number(s):

2024/90500

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No DA/6/2024 (the DA) for the demolition of existing buildings, construction of a 2-storey, 63 place childcare centre and related landscaping on the land at 30 Rickard Street, Carlingford NSW 2118, legally known as Lot 1 in Deposited Plan 29201 (the site).

2. The proposal as lodged and advertised provided for the construction of a double-storey centre-based childcare centre for 63 children over basement carparking with 16 carparking spaces.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 September 2024. I presided over the conciliation conference, which began with an on-site view. Seven submissions were made against the proposal, however no submitters attended the on-site view.

4. The s 34 conciliation conference was adjourned to 16 October 2024 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. The s 34 conciliation conference was further adjourned twice to enable the parties to come to an agreement over the proposed development.

5. At the conciliation conference on 28 October 2024 the parties indicated that they had generally 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 development consent to the amended DA subject to conditions.

6. A signed s 34 agreement with Annexure A and amended plans (the amended DA) as agreed between the parties was filed with the Court on 29 October 2024. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

7. The changes made to the DA include:

1. Contentions about the outdoors open space and outdoor play area were resolved;

2. The Plan of Management (POM) was updated;

3. Landscaping issues were addressed, including the removal of a ramp proposed in the outdoor play area; and

4. Stormwater issues were addressed in updated stormwater plans.

8. 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.

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

10. 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

11. The parties advise that owner’s consent has been provided in respect of the DA lodged for the site.

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

12. The DA was publicly notified to the adjoining and surrounding properties between 19 January 2024 and 12 February 2024. Seven submissions were received in response to the notification of the DA.

13. The parties confirm that the objectors’ submissions have been considered and addressed by the amended DA.

Conditions

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

Parramatta Local Environmental Plan 2023

15. The Parramatta Local Environmental Plan 2023 (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;

2. The parties submitted that the proposed development addresses the objectives of the R2 zone by providing valuable and in-demand child care services to meet the day to day needs of residents; and

3. 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.

3. Pursuant to cl 4.3 of the LEP the maximum height of buildings on the site is 9 metres. The amended DA proposes a building height of 7.4m, complying with cl 4.3.

4. Pursuant to cl 4.4 of the LEP, the site has a prescribed maximum Floor space ratio (FSR) of 0.5:1. 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 [26] below].

5. The amended DA proposes a FSR of 0.42:1, complying with cl 4.4 of the LEP and s 3.25 of the Transport and Infrastructure SEPP.

6. Clause 5.10 of the LEP relates to heritage conservation. The parties submit that the site does not contain a heritage item and is not located within a heritage conservation area; and that the proposed works do not affect any known archaeological or Aboriginal objects or Aboriginal places of heritage significance.

7. Clause 6.1 of the LEP relates to acid sulfate soils. The site is impacted by Class 5 acid sulfate soils. The parties agree that:

1. The proposal is not located within 500m of adjacent Class 1, 2, 3 or 4 Acid Sulfate Soils and the proposal will not have any adverse impact on the site or on its surrounds.

2. Given the distance of the site to a nearby lower class of acid sulfate soils, an Acid Sulfate Soils Management Plan is not required, and that the amended DA is acceptable with regard to cl 6.1 of the LEP.

8. Clause 6.2 of the LEP relates to earthworks. The proposal is supported by a Geotechnical Investigation prepared by Sydney Geotech dated 8 May 2023. The parties submit that the proposed development is acceptable with regard to cl 6.2 of the LEP for the following reasons:

1. The proposed development will not restrict the existing or future use of the site, adversely impact on neighbouring amenity, the quality of the water table or disturb any known relics;

2. The site is located within a suburban area with no nearby creeks or water courses. The site does not contribute to any watercourses, drinking catchments or environmentally sensitive area; and

3. Standard construction measures are proposed to avoid, minimise and mitigate the impact of the excavation.

16. Clause 6.5 of the LEP relates to stormwater. The parties submit that the proposal is acceptable with regard to cl 6.5 of the LEP, as the stormwater details accompanying the amended DA demonstrate no adverse impacts of urban stormwater on the land. Further, the site is located within a suburban area with no nearby creeks or water courses. The site does not contribute to any watercourses, drinking catchments or environmentally sensitive area.

17. Clause 6.7 of the LEP relates to essential services. The parties agree that the site is understood to have, or have proposed, all essential services and associated infrastructure.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

18. The amended DA proposes removal of trees to facilitate the proposed development. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the preservation of trees and other vegetation in non-rural areas of the State.

19. The parties advise that the proposal is supported by an Arboricultural Impact Assessment (AIA) prepared by Urban Abor dated 15 May 2023. The parties agree that the AIA has assessed all the trees at the site and considered that 6 trees are appropriate for removal. Further, the parties agree that the proposed landscaping will assist in moderating the scale of the development and integrate the proposal within the context of the site and its surrounds.

20. Chapter 6 of the 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. The parties advise that the matters in Pt 6.2 of the Biodiversity SEPP have been considered in the following material accompanying the amended DA:

1. Stormwater Plans prepared by SDS Engineering dated 21 September 2023;

2. Arboricultural Impact Assessment prepared by Urban Abor dated 15 May 2023;

3. Preliminary Environmental Site Investigation Report prepared by GSL Environmental dated 8 May 2023;

4. Detailed Site Investigation prepared by Sydney Environmental Group dated 12 July 2024; and

5. Geotechnical Investigation prepared by Sydney Geotech dated 8 May 2023.

21. The parties agree that the stormwater design accompanying the proposal demonstrates no adverse impacts of urban stormwater on the land. Further, the site is located within a suburban area with no nearby creeks or water courses. The site does not contribute to any watercourses, drinking catchments or environmentally sensitive area. Accordingly, the parties are satisfied that the proposed development will have a neutral effect on the quality of water entering the Sydney Harbour Catchment and that the proposal appropriately considers those matters set out at ss 6.6, 6.7, 6.8, 6.9 and 6.10 of the Biodiversity SEPP, which deal with mandatory aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, and adverse environmental impacts on any adjacent or downstream local government areas.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. 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. The parties advise and agree that:

1. The amended DA is supported by a Preliminary Environmental Site Investigation (PSI) Report prepared by GSL Environmental dated 8 May 2023. The parties confirm that based on an investigation of site history, perusal of historic aerial imagery, the potential for significant contamination at the site is considered to be of a medium risk; and

2. A Detailed Site Investigation was prepared by Sydney Environmental Group dated 12 July 2024 to demonstrate that the site is, or can be made suitable for use as a centre-based childcare facility.

23. 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 (Sustainable Buildings) 2022

24. The State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) came into effect on 1 October 2023 and repealed the State Environmental Planning Policy (BASIX) 2004. Chapter 3 of the Sustainable Buildings SEPP contains standards for non-residential developments involving the erection of a new building with an estimated development cost of $5 million or more.

25. The parties advise that the Sustainable Buildings SEPP is not applicable to the proposed development as its capital investment value is not more than $5 million.

State Environment Planning Policy (Transport and Infrastructure) 2021

26. 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; and

1. 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 [Refer to [15](4)(5)].

2. Section 3.26 of the Transport and Infrastructure SEPP in particular contains non-discretionary development standards for centre based child care centres; and

3. The parties submit that the amended DA provides unencumbered outdoor play space which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations (s 3.22 of the Transport and Infrastructure SEPP).

Education and Care Service National Regulations 2011

27. The Education and Care Services National Regulations 2011 (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.

Child Care Planning Guideline 2021

28. The Child Care Planning Guideline 2021 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 Child Care Planning Guideline 2021 before determining a development application; and

1. The parties advise the applicable provisions (in particular relating to acoustic matters and parking and traffic matters) under the Child Care Planning Guideline 2021 have been considered and addressed.

Parramatta Development Control Plan 2023

29. The Parramatta Development Control Plan 2023 (the DCP) applies to the site; and the parties agree that all of the matters contained in s 4.15 of the EPA Act, which are of relevance to the proposed development have been taken into consideration, and the DA, is acceptable subject to conditions.

Conclusion

30. Having considered the advice of the parties provided above at [11]-[29], 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.

31. 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.

32. 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.

33. The Court notes:

1. That the City of Parramatta 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 6/2024 made on 28 October 2024 to rely on the documents and plans specified below (the amended development application):

Tab	Plans	Rev	Date
1.	Architectural Plans prepared by Sustain Design & Construction Workshop Architects
i) Cover Sheet, dwg no. A000	E	3 October 2024
ii) Location, dwg no. A001	B	11 July 2024
iii) Site Survey, dwg no. A002	A	11 July 2024
iv) Site Plan – Aerial, dwg no. A004	C	3 October 2024
v) Compliance Diagrams, dwg no. A005	D	3 October 2024
vi) Views from Sun, dwg no. A006	C	16 August 2024
vii) Shadow Diagrams – Jun 21, dwg no. A007	C	16 August 2024
viii) Excavation Plan, dwg no. A008	B	11 July 2024
ix) Basement 1, dwg no. A009	D	11 July 2024
x) Level 1, dwg no. A011	C	3 October 2024
xi) Ground Level, dwg no. A010	F	3 October 2024
xii) Elevation East and West, dwg no. A012	C	3 October 2024
xiii) Elevation North and South, dwg no. A013	B	3 October 2024
xiv) Building section, dwg no. A014	C	3 October 2024
xv) Perspectives, dwg no. A016	D	3 October 2024
xvi) Signage, dwg no. A017	D	16 August 2024
xvii) Compliance Diagrams Play Area, dwg no. A05A	C	3 October 2024
2.	Landscape Plans prepared by A Total Concept Landscape Architects
i) Cover Sheet, dwg no. L/00	C	3 October 2024
ii) Landscape – Ground Level, dwg no. L/01	C	3 October 2024
iii) Landscape Plan – Level 1, dwg no. L/02	B	3 October 2024
Reports and Documents	Rev	Date
3.	Plan of Management prepared by Think Planners	-	15 September 2024
4.	CPTED Assessment prepared by Think Planners	-	12 September 2024
5.	Detailed Site Investigation prepared by Sydney Environmental Group	v1f	12 July 2024
6.	Access Report prepared by Vista Access Architects	B	10 July 2024
7.	Evacuation Plans prepared by SPS Services	-	3 July 2024
8.	Swept Path Assessments and Compliance Review prepared by Transport Strategies	-	12 July 2024
9.	Acoustic Report prepared by Acoustic Works	R01E	24 September 2024

34. 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 6/2024, for the demolition of existing buildings, construction of a 2-storey, 63 place childcare centre and related landscaping on the land at 30 Rickard Street, Carlingford NSW 2118, legally known as Lot 1 in Deposited Plan 29201, is determined by the grant of development consent, subject to the conditions included in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 24 December 2024