Sethi v Blacktown City Council

[2024] NSWLEC 1092

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sethi v Blacktown City Council [2024] NSWLEC 1092

Hearing dates:

Conciliation conference on 15 February 2024

Date of orders:

05 March 2024

Decision date:

05 March 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act  1979, the Applicants are to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application, as agreed or assessed.

(2) The appeal is upheld.

(3) Development Application DA-22-01209, as amended, for the demolition of existing structures,  vegetation  removal  and construction of a single storey child care centre above basement car parking with associated earthworks, retaining walls, fencing, stormwater and landscaping works, at 74 Arnott Road Marayong, legally known as Lot 1 DP 876105, is determined by the grant of Development Consent subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – child care centre – amended plans – conciliation conference – agreement reached – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, s 34

Blacktown Local Environmental Plan 2015, cl 7.5
Environmental Planning and Assessment Regulation 2021, s 38
Education and Care Services National Regulations 2011
State Environmental Planning Policy (Resilience and Hazards), s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.23, 3.26

Category:

Principal judgment

Parties:

Himanshu Sethi (First Applicant)
Parminder Kaur (Second Applicant)
Jatin Sethi (Third Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Reid (Applicants)
D Loether (Solicitor) (Respondent)

Solicitors:
Macquarie Lawyers (Applicants)
Bartier Perry Lawyers (Respondent)

File Number(s):

2022/382564

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Himanshu Sethi, Parminder Kaur and Jatin Sethi (the Applicants). The appeal is against Blacktown City Council (the Respondent) for the deemed refusal of Development Application DA-22-01209 which was lodged on 27 September 2022.

2. The Development Application seeks Development Consent for demolition of existing structures, vegetation removal and construction of a single-storey child care centre above basement car parking with associated earthworks, retaining walls, fencing, stormwater and landscaping works at Lot 1 DP 876105, also known as 74 Arnott Road, Marayong.

3. This is a matter that was listed for hearing on 15 February 2024. In advance of the hearing the parties approached the Court for a listing as a s 34 conciliation conference. This took place on 15 February 2024, and I 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. The proposed decision was to grant Development Consent to the Development Application subject to conditions.

5. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court. Blacktown City Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicants amending Development Application No. DA-22-01209.

6. Pursuant to s 34(3) of the Land and Environment Court Act 1979 (LEC Act), I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

8. As the presiding Commissioner, I am satisfied that the decision is one 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Blacktown Local Environmental Plan 2015 (BLEP 2015), the subject site is zoned R2 Low Density Residential. Centre-based child care facilities are permissible, with Development Consent, in the R2 zone. In determining the Development Application, the parties and I have had regard to the objectives of the zone.

2. The proposed development does not contravene a development standard in the BLEP 2015, nor in any other applicable Environmental Planning Instrument.

3. The requirements of cl 7.5 of BLEP 2015, that require the consent authority to be satisfied that certain services will be met, has been adequately considered and satisfied. The parties agree that essential services will be available to the proposed development and appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

4. The Development Application was notified to nearby properties of the Site from 16 November 2022 to 30 November 2022. Three submissions were received in relation to the proposed development. The issues raised were considered by the parties.

5. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The Applicants provided a Detailed Site Investigation undertaken by Geotechnical Consulting Australia concluded that the potential for significant contamination of soil is low and the site is suitable for the proposed development and land use, subject to recommendations. Appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

6. The required consideration has been given to State Environmental Planning Policy (Transport and Infrastructure) 2021 (ISEPP). The parties agree that the Development Application has addressed the necessary matters in Chapter 3 of the ISEPP which relates to Education Establishment and Child Care Facilities. This includes compliance assessment and responses to the various considerations, and numerical requirements, in the Child Care Planning Guidelines, as required under s 3.23 of the ISEPP.

7. As required by s 3.26 of ISEPP, the Amended Application provides for a total outdoor unencumbered space of 570m² (including the drainage pit/grates which total 10m²). The Amended Application satisfies the requirement to provide a minimum of 560m² of unencumbered outdoor space to provide at least 7m² for 80 children. The Amended Application satisfies the requirement to provide a minimum of 3.25m² per child of indoor unencumbered space.

8. Where appropriate, the parties have agreed on conditions around the operation of the proposed centre and these are included in Annexure A. On this basis, I agree that the various aspects of the ISEPP have been met.

9. The Education and Care Service National Regulations 2011 also apply to the development. The required assessment of compliance has been undertaken and is satisfied.

9. 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’ agreement.

10. 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.

Orders

11. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicants are to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application, as agreed or assessed.

2. The appeal is upheld.

3. Development Application DA-22-01209, as amended, for the demolition of existing structures, vegetation removal and construction of a single storey child care centre above basement car parking with associated earthworks, retaining walls, fencing, stormwater and landscaping works, at 74 Arnott Road Marayong, legally known as Lot 1 DP 876105, is determined by the grant of Development Consent subject to the conditions set out in Annexure A.

Stuart Harding

Acting Commissioner of the Court

382564.22 Annexure A

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Decision last updated: 05 March 2024