Siddiqui v Ku-ring-gai Council

[2019] NSWLEC 1060

Land and Environment Court

New South Wales

Medium Neutral Citation:	Siddiqui v Ku-ring-gai Council [2019] NSWLEC 1060
Hearing dates:	Conciliation conference on 12 February 2019
Date of orders:	14 February 2019
Decision date:	14 February 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See orders at [22] below
Catchwords:	DEVELOPMENT APPLICATION: child care centre; conciliation conference; agreement between the parties; orders
Legislation Cited:	Education and Care Services National Regulations 2011 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Fareeda Siddiqui (First Applicant) Murtaza Siddiqui (Second Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: M McMahon, M E McMahon & Associates (Applicant) J Ede, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2017/315099
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Fareeda and Murtaza Siddiqui (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Ku-ring-gai Council (the Council) pursuant to s 8.11 of the EPA Act of development application DA0291/17 (the application).

2. The application sought consent under the EPA Act for the alterations and extensions to an existing dwelling house, with associated parking, landscaping and works, for use as a child care centre for 20 children at Lot 15 DP 22165 being 24 Larchmont Avenue, East Killara (the site).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). However, as the parties could not come to an agreement the conciliation was terminated.

4. The appeal was listed for hearing before me which commenced onsite with the Court, the parties and their experts undertaking a site view and hearing from adjoining residents who had lodged objections to the application.

5. An expert report jointly prepared by all experts for the hearing filed in response to the contentions raised by the Council advised that all of the contentions could be resolved subject to amendments to the plans as sketched by the experts and attached to their report.

6. The hearing was adjourned to enable the Applicant to prepare revised plans, reflecting the sketches recommended by the experts, and to then update associated documentation. Collectively, these documents comprised an amended application including revised acoustic assessment.

7. On the basis of these amendments addressing the Council’s contentions and those issues raised by objectors, to the extent that they were relevant considerations, the parties sought the matter be listed as a further s 34 conciliation conference at which to present a s 34 agreement.

8. I presided over that conciliation. As a result of the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.

9. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

10. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

11. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met.

12. The parties in lodging the agreement advised that the application was made with the consent in writing of Fareeda and Murtaza Siddiqui being the owners of the site. This is notwithstanding that the application filed with the Court lists a different owner and Applicant. However, the Court was provided with a Certificate of Title confirming that the Siddiquis do now own the site.

13. The development is for the purpose of a ‘centre-based child care facility’ as defined in the Dictionary of the Ku-ring-gai Local Environmental Plan 2015 (the LEP).

14. The site is located within the R2 Low Density Residential zone under the provisions of the LEP and development for the purpose of a centre-based child care facility is permitted with consent in the LEP.

15. The development does not contravene any development standard in the LEP nor any other applicable environmental planning instrument.

16. In this regard, the application was accompanied by a statement by a qualified designer as referred to in cl 50 of the Environmental Planning and Assessment Regulation 2000.

17. In relation to cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), the parties advised the Court that the site is not known to be contaminated and is not:

1. land that is within an investigation area, or

2. land on which development for a purpose referred to in Table 1 to the Contaminated Land Planning Guidelines is being, or is known to have been, carried out.

18. I am therefore satisfied on the evidence provided that the requirements of SEPP 55 have been met.

19. As well as the development being assessed under the provisions of the LEP, it is also necessary to consider the provisions of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the Child Care SEPP). The Child Care SEPP commenced after the lodgement of the application and accordingly the savings provisions at Schedule 5 of the SEPP apply. These advise that the Child Care SEPP does not apply to the determination of the application however, the Court must have regard to the National Quality Framework Assessment Checklist (the checklist) set out in Part 4 of the Child Care Planning Guidelines 2017 (the Guidelines), in relation to the proposed development.

20. I am satisfied that the experts to the parties addressed the requirements of the checklist and I have therefore had regard to the relevant provisions of the Child Care SEPP and the checklist. In particular, I note that compliance with the checklist was originally a matter of contention between the parties but resolved with the amendments undertaken to the application.

21. The Council raised a number of merit issues arising from consideration of the Ku-ring-gai Local Centres Development Control Plan 2016. These included the design of the development relative to the character of the local area, acoustic and privacy impacts on neighbours, and traffic and access concerns. These issues were addressed to the satisfaction of the Council (and having regard to the objections of neighbours), with amendments to the application arising from conciliation and with the proposed conditions of consent.

22. On the basis of the amended application, and in accordance with the agreement between the parties, the Court orders that:

1. The Applicant is granted leave to rely on the following plans and documents:

Plan no.	Drawn by	Dated
Architectural Plans
Prj 201705 Dwg DA01 Issue F Site Plan	Archian Architects	08/Feb/2019
Prj 201705 Dwg DA02 Issue D Site Analysis	Archian Architects	08/Feb/2019
Prj 201705 Dwg DA03 Issue B Site Analysis Description	Archian Architects	08/Feb/2019
Prj 201705 Dwg DA11 Issue F Lower Floor Plan	Archian Architects	08/Feb/2019
Prj 201705 Dwg DA12 Issue E Ground Floor Plan	Archian Architects	08/Feb/2019
Prj 201705 Dwg DA21 Issue F Northeast and Northwest Elevations	Archian Architects	08/Feb/2019
Prj 201705 Dwg DA22 Issue F Southeast and Southwest Elevations	Archian Architects	08/Feb/2019
Prj 201705 Dwg DA31 Issue F Section	Archian Architects	08/Feb/2019
Prj 201705 Dwg DA41 Issue D Floor Area Claculation	Archian Architects	08/Feb/2019
Prj 201705 Dwg DA43 Issue F Neighbours’ Relationship Plan	Archian Architects	08/Feb/2019
Prj 201705 Dwg DA44 Issue F Neighbours’ Relationship	Archian Architects	08/Feb/2019
Prj 201705 Dwg DA45 Issue F Neighbours’ Relationship 2	Archian Architects	08/Feb/2019
Prj 201705 Dwg DA47 Issue E Fence Detail	Archian Architects	08/Feb/2019
Landscape Plans
Dwg 24LA/DA/LP/01 Rev P Landscape Plan	JCA Urban Designers Landscape Architects	21/01/2019
Dwg 24LA/DA/LP/02 Rev P Landscape Sections	JCA Urban Designers Landscape Architects	21/01/2019
Documents
Accessibility Report prepared by BCA Vision Ref: P17099 (Rev 6)		30/11/2018
Acoustic Report prepared by Rodney Stevens Acoustics Ref: R170228R1 (Rev 3)		30/11/2018
Design Verification Statement prepared by Archian Architects		07/02/2018
Plan of Management prepared by GiggleCare for 24 Larchmont Ave EAST KILLARA (Rev 6)		11/12/2018

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of its development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA0291/17 for alterations and additions to the existing dwelling to create a 20 place child care centre with car parking and associated landscaping at 24 Larchmont Avenue, East Killara subject to the conditions of consent annexed hereto and marked “A”.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A

Plans

Decision last updated: 15 February 2019