Singh v Tamworth Regional Council

[2024] NSWLEC 1333

Land and Environment Court

New South Wales

Medium Neutral Citation:

Singh v Tamworth Regional Council [2024] NSWLEC 1333

Hearing dates:

Conciliation Conference 11 June 2024

Date of orders:

18 June 2024

Decision date:

18 June 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Appeal is upheld.

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

(3) Development Application No. DA2022-0547 for the lot amalgamation and the subdivision of land to create proposed Lot 1 and Lot 2, demolition of existing buildings and structures on proposed Lot 1 and Lot 2, tree removal, and the construction of a 100 place, two storey centre-based childcare facility with 25 car spaces, landscaping and civil works on proposed Lot 1 on land legally described as Lots 52, 53, 54, 55, and 56 in Deposited Plan 2356 and Lot 1 in Deposited Plan 44204 and known as 7-9 Gorman Street, North Tamworth, NSW, 2340, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, s 3.23

Tamworth Regional Local Environmental Plan 2010, cll 2.6, 2.7, 4.1

Education and Care Services National Regulations

Texts Cited:

Tamworth Regional Council Community Participation Plan 2019

Child Care Planning Guidelines

Category:

Principal judgment

Parties:

Chandni Singh (First Applicant)
Rajender Singh (Second Applicant)
Tamworth Regional Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
B Dyer (Solicitor)(Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Maddocks (Respondent)

File Number(s):

2023/348643

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA2022-0547 for the demolition of existing structures lot amalgamation and the subdivision of land to create two (2) lots, and the construction of a 100 place, two storey centre-based childcare centre with 25 car spaces, landscaping and civil works (the Proposed Development) on proposed Lot 1 on land legally described as Lots 52, 53, 54, 55, and 56 in Deposited Plan 2356 and Lot 1 in Deposited Plan 44204 and known as 7-9 Gorman Street, North Tamworth (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 11 June 2024. I presided over the conciliation conference.

3. On 5 December 2023, the Respondent filed a Statement of Facts and Contentions (SOFAC) and the parties participated in without prejudice discussions regarding the matters raised in the SOFAC including the concerns raised by objectors. The parties reached an agreement as to the resolution of those contentions as a result of the following amendments to the Proposed Development (Amended Application):

1. Revisions to the architectural drawings submitted with the proposed Development Application, including:

2. An amended plan of management;

3. An amended traffic report.

4. The Respondent has approved the amended plans and documents that support and amend the application, pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021.

5. 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 development consent to the development application subject to conditions.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) and the Tamworth Regional Local Environmental Plan 2010 (TRLEP). The parties explained how the jurisdictional prerequisites of the various provisions of these environmental planning instruments have been satisfied in an agreed jurisdictional statement from which I set out an explain as to how each jurisdictional prerequisite has been satisfied.

9. As set out in the SOFAC, the Proposed Development initially proposed amalgamation of the Site into two lots with Lot 1 used for a 105 place childcare centre and Lot 2 being used for a two storey medical centre with associated carparking on each lot (the Original Application).

10. The Original Application was made by Baini Design Pty Ltd with the consent of the landowners of the Site (Tab 3 of the Class 1 Application) and the landowners are the Applicants in the proceedings.

11. The Original Application was notified and advertised between 24 June 2022 and 15 July 2022 in accordance with the Tamworth Regional Council Community Participation Plan 2019 (Community Participation Plan). In about April 2023 the Proposed Development was amended to remove the medical centre, reduce the number of children at the childcare centre from 105 to 100 and increase the number of carparks from 21 to 25. Following notification of this amendment between 18 April 2023 to 12 May 2023, Council received 32 public submissions and a petition containing 9 signatures raising concerns which have been considered by the parties, and the parties have agreed that the matters raised where relevant have been satisfactorily addressed through the Applicants’ Amended Application.

12. The Site is zoned R1 General Residential pursuant to the TRLEP where a ‘centre-based child care facility’ is a type of development that is permissible with consent.

13. Development consent is sought as a part of the Proposed Development for demolition works in accordance with cl 2.7 of the TRLEP. Development consent is also sought as part of the Proposed Development for subdivision, following the amalgamation of the lots which make up the Site, in accordance with cl 2.6 of the TRLEP. In relation to the proposed subdivision of the new proposed lots 1 and 2, the new lots will meet the prescribed Minimum Lot Size (600m2) for the R1 zone and will therefore achieve compliance with cl 4.1(3) of the TRLEP.

14. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the consent authority must be satisfied that appropriate consideration has been given to whether the Site is contaminated, the suitability of the Site for the Proposed Development and whether satisfactory measures are put into place to remediate the land should it be required to do so. The Applicant relies on a Preliminary Environmental Site Investigation Report (PSI) prepared by Environmental Consulting Services dated 6 February 2023 filed at Tab 13 of the Class 1 Application. The PSI finds that the Site has been historically used for residential purposes for at least 100 years and there is no evidence of significant filling at the Site. The results of the soil analysis indicate concentrations of contaminants of concern being below the relevant site assessment criteria and below the laboratory level of reporting. The Report concludes that the Site is suitable for the Proposed Development subject to the implementation of a number of management controls. I note that the PSI is listed in consent condition 1 as a document with which the development shall take place in accordance and that there are consent conditions to address potential asbestos materials and an unexpected finds protocol at conditions 5, 47 to 54 and 63.

15. The Proposed Development seeks consent for the removal of trees accordingly, the terms of Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) do not present as a jurisdictional prerequisite because the Applicant has not applied to remove the trees under permit, but rather seeks development consent to remove the trees under EPA Act. In any event, the Applicant relies on an Arboricultural Impact Assessment and Tree Management Plan, prepared by Horticultural Management Services dated 10 February 2023 and filed at Tab 12 of the Class 1 Application. This document is listed in consent condition 1 as a document with which the development shall take place in accordance read together with consent condition 5. The parties explain that the trees on the Site were assessed as having a low – medium retention value and nil – low ecological and landscape value, with one tree identified as being dead and that of the 22 trees identified on Site, three will be retained. No habitat or hollows were observed in the 19 trees recommended to be removed. Furthermore, the Landscape Plan dated March 2023 includes a number of smaller plants and shrubs, as well as 19 replacement trees to be planted including of the following tree species: Rough Barked Apple, Tuckeroo, and Manchurian Pear.

16. Chapter 3 of the Transport and Infrastructure SEPP contains the planning provisions relating to child care centres including a centre-based child care facility. The parties explain that in accordance with s 3.23 of the Transport and Infrastructure SEPP, they have taken into consideration the applicable provisions of the Child Care Planning Guidelines. Compliance with Chapter 3 of the Transport and Infrastructure SEPP is addressed in the Statement of Environment Effects (SEE) behind Tab 5 of the Class 1 Application at pages 27-30 and compliance with the Child Care Planning Guidelines is addressed in the SEE at pages 31-44. Drawing 01 Revision G dated 18 March 2024 also set out a comprehensive compliance table for the Proposed Development.

17. Education and Care Services National Regulations provides extensive controls and requirements in addition to that of the Transport and Infrastructure SEPP, the TLEP and the Tamworth Development Control Plan. Compliance with Education and Care Services National Regulations is assessed as part of the assessment against the Child Care Planning Guidelines in the SEE behind Tab 5 of the Class 1 Application at pages 29 to 30.

18. 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. I adopt the reasons given by the parties as set out in this judgment.

19. 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.

Notations:

20. The Court notes:

1. that Applicant has amended Development Application No. DA2022-0547 with the agreement of Tamworth Regional Council, as the relevant consent authority, pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021 to rely upon the following amended documents (Amended Development Application):

Drawing No and Revision		Title	Prepared by		Date
Architectural Plans
1	Drawing No. 01 Revision G	Compliance Table & Location	Baini Design		18 March 2024
	Drawing No. 02 Revision G	Site Context Plan
	Drawing No. 03 Revision G	Site Analysis Plan
	Drawing No. 04 Revision G	Tree Management Plan
	Drawing No. 05 Revision G	Shadow Diagram
	Drawing No. 06 Revision G	Shadow Diagram
	Drawing No. 07 Revision G	Site Plan
	Drawing No. 08 Revision G	Demolition & Amalgamation Plan
	Drawing No. 09 Revision G	Ground Floor
	Drawing No. 10 Revision G	First Floor
	Drawing No. 11 Revision G	Roof Plan
	Drawing No. 12 Revision G	Elevations
	Drawing No. 13 Revision G	Elevations
	Drawing No. 14 Revision G	Sections
	Drawing No. 15 Revision G	Callout Elevations
	Drawing No. 16 Revision G	Kitchen and Laundry Details
	Drawing No. 17 Revision G	Nappy Change Detail
	Drawing No. 18 Revision G	Craft Bench Detail
	Drawing No. 19 Revision G	Bottle Prep Detail
	Drawing No. 20 Revision G	Schedule of Finishes
	Drawing No. 21 Revision G	Outdoor Play Area Calculation
	Drawing No. 22 Revision G	Solar Study Plans
	Drawing No. 23 Revision G	0-2 Indoor Play Area
	Drawing No. 24 Revision G	2-3 Indoor Play Area
	Drawing No. 25 Revision G	3-5 Indoor Play Area
	Drawing No. 26 Revision G	Fencing Details
	Drawing No. 27 Revision G	3D Perspectives
Proposed Line Marking and Sign Installation Plans
2	Drawing No. HC 220/2223-1R	Proposed Line Marking & Signs Installation	Hemanote Consultants		18 April 2024
	Drawing No. HC 220/2223-2R	Proposed Line Marking & Signs Installation
	Drawing No. HC 220/2223-3R	Proposed Signs Installation
	Drawing No. HC 220/2223-4R	Proposed Line Marking & Signs Installation
	Drawing No. HC 220/2223-5	Proposed Signs Installation
	Drawing No. HC 220/2223-6	Proposed Signs Installation
Reports / documents
3	Addendum Traffic & Parking Statement			Hemanote Consultants	18 April 2024
4	On-street Parking Utilisation			Hemanote Consultants	-
5	Plan of Management (Version 3)			18 April 2024

2. The Amended Development Application was filed with the Court on 11 June 2024

Orders:

21. The Court orders:

1. The Appeal is upheld.

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

3. Development Application No. DA2022-0547 for the lot amalgamation and the subdivision of land to create proposed Lot 1 and Lot 2, demolition of existing buildings and structures on proposed Lot 1 and Lot 2, tree removal, and the construction of a 100 place, two storey centre-based childcare facility with 25 car spaces, landscaping and civil works on proposed Lot 1 on land legally described as Lots 52, 53, 54, 55, and 56 in Deposited Plan 2356 and Lot 1 in Deposited Plan 44204 and known as 7-9 Gorman Street, North Tamworth, NSW, 2340, is determined by the grant of development consent subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

Annexure A

Tab 1 - REV G Architecturals - 7-9 Gorman Street, North Tamworth

Tab 2 - Proposed signage plans - 7-9 Gorman St - North Tamworth

Tab 3 - Updated Traffic statement 7-9 Gorman St North Tamworth

Tab 4 - Proposed vehicle passing opportunities & No Stopping Restrictions Gorman St

Tab 5 - PoM 7-9 Gorman Tamworth

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Decision last updated: 18 June 2024