Sivabalakan v Blacktown City Council

[2023] NSWLEC 1658

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sivabalakan v Blacktown City Council [2023] NSWLEC 1658

Hearing dates:

17 and 18 August 2023

Date of orders:

07 November 2023

Decision date:

07 November 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) Pursuant to section 39(2) of the Land and Environment Court Act 1979, exercising the function of Blacktown City Council as consent authority under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the application to amend Development Application No DA-22-01213 is approved and the Applicant can rely on the amended plans and documents listed in Annexure A to these orders.
(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent, as agreed or assessed, that have been thrown away as a result of the amendment of Development Application DA-22-01213 as referred to in Order (1).
(3) The appeal is upheld.
(4)    Restriction 9 contained in the Section 88B instrument (prepared pursuant to section 88B of the Conveyancing Act 1919) relating to DP1170094 does not apply to the development the subject of Land and Environment Court proceedings No 2022/00336183, to the extent necessary to enable the development the subject of the grant of consent to be carried out.
(5) The Development Application DA-22-01213, as amended, for the amalgamation of two lots into one lot, construction of two storey Centre Based Child care Facility with a maximum capacity of 122 children ranging from 0 to 5 years and basement parking, at 84-86 Amarco Circuit, The Ponds, NSW, Bayview Road, Canada Bay, is determined by the grant of Development Consent subject to the conditions set out in Annexure B to this judgment.
(6) The Exhibits, apart from Exhibits A, C, D and 2, are returned.

Catchwords:

DEVELOPMENT APPLICATION – Centre based child care facility – amended plans – outdoor play area – hearing

Legislation Cited:

Blacktown Local Environmental Plan 2015, cll 4.3, 7.5
Education and Care Services National Regulations (2011 SI 653) Regs 107, 108
Environmental Planning and Assessment Act 1979, s 8.7
Environmental Planning and Assessment Regulation 2021, s 38
Land and Environment Court Act 1979, s 39
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Transport and Infrastructure) 2021, Pt 3.3, ss 3.22, 3.23
State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017, cl 22

Texts Cited:

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

Category:

Principal judgment

Parties:

Sharmila Sivabalakan (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
A Seton (Solicitor)(Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/336183

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 Sharmila Sivabalakan (Applicant) against the deemed refusal by Blacktown City Council (the Respondent) of a development application (DA-22-01213) for a Centre Based Child Care Facility.

The Proposal

2. Broadly, the Development Application proposes the amalgamation of two lots into a single lot and the subsequent construction of a two storey centre based child care facility. The facility would accommodate a total of 122 children, plus educators, with one level of basement parking.

3. During the appeal process the Applicant sought leave, which was granted, to rely on amended plans on the basis that the adjustments addressed various issues raised in the Statement of Facts and Contentions (SOFAC’s). The adjustments included changes to both indoor and outdoor play spaces, changes to coverings of play areas, changes to internal designs and fire related adjustments. The amended package of material included a suite of documents which are broadly outlined in Annexure A to this judgment.

The Site and Locality

4. The site consists of 2 vacant parcels of land, which have a legal description of lots 808 and 809 in Deposited Plan 1170094. The land is otherwise known as 84 and 86 Amarco Circuit, The Ponds (the Site).

5. The site is regular in shape with an access handle to Amarco Circuit. The combined area of the 2 lots is 1,929m². The access handle of the Site has a frontage to Amarco Circuit (far east boundary) of 8m. The southern (rear) boundary is 36.07m combined, the eastern (side) boundary is 38m, and the western (side) boundary is 42.16m.

6. The Site has a slope from the western side boundary to Amarco Circuit of approximately 2.9m. The contours across the Site range from RL 60.95 at the side western corner to RL 58.02 at the eastern frontage of the Site. Vehicular access will be from the 8 metre wide driveway, into a basement, from Amarco Circuit. Whilst the Site has frontage to Schofields Road, it is an access-denied road.

Public Submissions

7. The Development Application was publicly notified between 26 October to 9 November 2022. The SOFAC’s note that 10 written submissions, and a petition signed by 15 signatories, were received in response to the 2022 notification of the proposal.

8. The development application was amended in May and, as a result of these changes, a further consultation process was undertaken. The application was further advertised and notified to surrounding properties between 14 June 2023 and 28 June 2023. The Respondent received 3 submissions objecting to the amended application.

9. At the commencement of the site visit associated with the hearing, an oral and written submission was provided by a resident who lived in close proximity to the site. The main merit issues raised were in respect to increased traffic and the parking demand associated with the proposed use. The written submissions were filed with the Court. The parties undertook a site view which included observing the characteristics of development in the vicinity of the site.

The Assessment Framework for the Application

10. Centre based child care facilities are regulated by a variety of planning controls. The legislative framework relevant to this assessment is outlined below.

11. The state policy, State Environmental Planning Policy (Transport and Infrastructure) 2021 (the TI SEPP) contains specific requirements for centre based child care facilities. The relevant sections in the TI SEPP also cross reference further requirements in the Education and Care Services National Regulations (2011 SI 653) (the National Regulations).

12. A further requirement, in s 3.23 of the SEPP TI, is that the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline (the Guideline). The current Guideline was prepared under the now repealed State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017 (the Education SEPP). Whilst the Education SEPP has been repealed, the Guideline remains in place and are empowered through the TI SEPP (s 3.23).

The Blacktown Local Environmental Plan 2015

13. The site is located within an area of R3 Medium Density Residential zoned land pursuant to Blacktown Local Environmental Plan 2015 (BLEP 2015). The proposed development is defined as a Centre Based Child Care Facility which is permissible, with development consent, within the zone. Development for the purposes of a Centre Based Child Care Facility is listed as permissible with consent in the land-use table applying to this site.

14. The BLEP 2015 sets the development standard for the maximum Height of Buildings, pursuant to cl 4.3, of 8.5m. It is agreed that the development does not exceed the Height of Buildings development standard.

The Issues

15. The parties rely on Joint Experts Reports prepared by experts covering the subjects of stormwater, child care centre design and operation, town planning and fire safety. These reports addressed the issues raised in the amended SOFAC’s which included an assessment of the suitability of the site, the streetscape, the design and function of the centre and impacts on amenity and the natural landscape. The evidence also covers issues raised by objectors relating to traffic, parking and amenity concerns.

16. The discussions between the parties prior to the hearing, including the relevant experts, has resulted in minor amendments to the application and the provision of additional information. The Applicant sort approval from the Court to amend the application to reflect these changes. The Respondent did not oppose the amending of the application nor did they approve the application for an amendment pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulations). Pursuant to s 39(2) of the Land and Environment Court Act 1979, I have exercised the function of Blacktown Council, as the consent authority under s 38 (1) of the EPA Regulations, to approve the amending of the application and the orders associated with this judgment reflect that outcome.

17. The provision of additional information has either resolved the issues between the parties or enabled a clear articulation of the outstanding issues before the Court. The result of these amendments is that the experts agree that the application, currently before the Court, has satisfactorily addressed the merit issues raised in the SOFAC’s. Whilst the experts agree, the parties stopped short of full agreement with the issue of outdoor play space. This issue remains the only contention in the matter for which full agreement was not reached.

18. Despite the parties acknowledging that the issues raised in the SOFAC’s have been addressed by the experts, the Court must reach its own conclusion, in respect to the adequacy of the Development Application. This includes consideration of the calculation of outdoor play space and whether the proposal meets the relevant requirements. There are also jurisdictional matters that require assessment prior to determination.

19. The issues before the Court can be grouped into three broad categories being the form and function of the facility, outdoor play areas and traffic and parking. These matters are addressed as follows.

Is the form and function of the facility adequate?

20. Evidence has been provided in respect to the form and function of various components of the facility. This includes, but is not limited to, the size, shape and location of the indoor and outdoor play areas.

21. The experts now agree that the proposal adequately addresses the requirements of Pt 3.3 of TI SEPP. As part of the consideration of s 3.22 an assessment of the proposal against Regs 107 and 108 of the Education and Care Services National Regulations (2011 SI 653) is required.

22. Section 3.22(4) of the TI SEPP provides, that before determining a Development Application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Guideline, in relation to the Proposed Development. A focus in this matter has been the classification of outdoor play area which is, in part, informed by the Guideline.

23. When assessing the development application, the Council made the decision to refer the matter to the New South Wales Department of Education (the Department) pursuant to cl 22 of the then Education SEPP. That referral queried whether any of the play areas in the application were considered “simulated outdoor play space” and therefore required concurrence from the Department. At the same time, the referral questioned whether compliance with Reg 108 of the National Regulations (for outdoor play area) was achieved.

24. On 16 December 2022, the Department refused the concurrence referral. Upon receipt of further material, the Department undertook another assessment. In considering the second submission, the Department reached the conclusion that there was insufficient information to demonstrate compliance with the requirements of Reg 108. The Department noted, in relation to the further material, that the Applicant has not proposed that these areas are indoor space nor has the Applicant requested that they should be considered as simulated outdoor space. As a result, the Department declined to provide advice to the Council in relation to the simulated outdoor environment. Notwithstanding the above, the Department again refused concurrence.

25. The position taken by the Department is somewhat superseded by the Applicant making further amendments to the application to remove any doubt as to the categorisation of the outdoor play space. It is these amended plans, which are the plans the subject of the application before the Court and which were the subject of deliberations above of the childcare experts, that are agreed by the experts as complying with Reg 108.

26. The child care experts prepared a supplementary report which considered the categorisation of two areas or outdoor play space and subsequently compliance, or otherwise, with the National Regulations. The agreed position of the experts in the supplementary joint report (Ex 11), which is based on the amended application now before the court, can be summarised as follows:

1. The presence of two open void areas above the ground floor play area are of such size that this area is not considered to be a simulated outdoor area.

2. Other areas of the ground floor outdoor play area are consistent with outdoor space covered by shade structures and therefore compliant with the definition of outdoor play area.

3. The adjusted roof line (in the amended plans) of the Level 1 outdoor play area removes any doubt that this area is unencumbered outdoor area.

4. The outdoor play area is consistent with areas of outdoor space that are required to be covered and open on at least one third of its perimeter.

5. As a result of the above, the child care experts now agree that the proposal complies with the regulatory requirements for indoor and outdoor play space and that concurrence from the regulatory authority is not required.

27. Notwithstanding the agreements between the experts, the Court must satisfy itself that compliance has been achieved. I am swayed by the evidence of the experts in their assessment of this issue.

28. The amendments undertaken by the Applicant have included measures of reducing coverings of play areas, improving the utility of the spaces and ensuring adequate light and ventilation. It is for the reasons outlined by the child care experts that I agree that the proposal achieves compliance with Reg 108, and as a consequence, is acceptable in terms of providing adequate outdoor play areas for the development. On the basis that the proposal achieves the required outdoor play area provisions, the proposal no longer requires the concurrence of the Department pursuant to cl 22 of the Education SEPP.

29. The Applicant also provided an updated version of the Plan of Management for the facility. This updated report deals with the operational aspects of the development including, but not limited to, the staff allocation, the range of age groups, noise management, daily routines for children, car parking and waste management. The Respondent no longer challenges the adequacy of the Plan of Management. It is for these collective reasons that I agree that the Plan of Management covers the required matters and is acceptable.

Is the traffic and parking acceptable?

30. As part of the amended application filed with the Court, the Applicant made amendments, and provided supporting material, in the form of an updated traffic impact assessment (by PDC Consulting) and design changes. The report demonstrates traffic volumes and parking arrangements associated with the development and how these outcomes comply with relevant Australian Standards. Additional material provided to the Court included consideration of matters raised by the objector, during the site inspection, in respect to parking on nearby streets.

31. The Court was assisted by a joint expert report on traffic and parking prepared by Paul Corbett on behalf of the Applicant and Nadeem Shaikh on behalf of the Respondent. These experts ultimately agreed that the matters raised as contentions were resolved through amendments to the application. The experts prepared a supplementary joint report after the amendments to the application and in response to submissions made at the commencement of the hearing by a nearby resident.

32. As a result of this additional information, the Respondent no longer opposes the development on traffic and parking grounds. It is because of the clarity around the compliance with traffic volumes, and the provision of parking, that I agree that the development is acceptable in terms of these contentions. I accept and agree, based on the traffic and parking assessment by the parties, that the proposal is adequate in this regard.

Is the Stormwater Acceptable?

33. There were a few items in the SOFAC’s that raised contentions relating to stormwater. These included issues around on-site detention and methods of draining the site. The engineering experts discussed these issues in the Joint Report on Stormwater (Ex 9). As a result of these discussions, and the subsequent provision of amended material, the experts agree on the stormwater solution for the site. This includes appropriate conditions to be attached to any Development Consent, if granted, along with compliance with updated Stormwater plans.

34. As a consequence of this technical agreement, the Respondent no longer presses issues regarding Stormwater. I am satisfied, because of additional technical information and subsequent assessments, that the stormwater solution for the site is acceptable.

Are the waste facilities adequate?

35. A contention was raised in respect to the Waste Disposal for the facility. The parties have agreed a solution to the provision of waste services. I am satisfied that waste services can be provided.

What are the remaining jurisdictional matters requiring consideration?

36. Consideration has been given to the supply of essential services as required by cl 7.5 of BLEP 2015. The Applicant prepared various servicing related reports and plans and these have been considered by the Respondent. I am satisfied that consideration has been given to the provision of essential services.

37. Consideration has been given to the potential contamination of the site, pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), which applies to the site. The application was supported by a Preliminary Site Investigation report prepared by Geotechnical Consultants Australia. The report canvassed the potential environmental risk as well as acid sulphate soils, geology and hydrology issues. The parties are not in dispute that the matters relating to potential contamination have been adequately investigated. I am also satisfied, on the basis of the report, and the agreement between the parties that no issues arise, that the requirements of the SEPP Resilience and Hazards have been met.

Conclusions

38. The communication between the parties, particularly prior to the hearing, has enabled an airing of the contentions and issues. This has allowed the Applicant to provide information and solutions to overcome the Respondents concerns. The expert material before the Court has adequately canvassed the merit issues in this matter and the experts agree that the amended application addresses issues raised in the SOFAC’s. Excluding the issue of outdoor play space, the merit issues between the parties are no longer in dispute.

39. Whilst the experts agree that the outdoor play space is adequate, the Respondent stopped short of agreeing that compliance was achieved. As a result, the final determination on this aspect sits with the Court. It is for the reasons outlined in this judgment that I have agreed that the proposal does meet the requirements for outdoor play areas.

38. As a result, I am satisfied that the proposal before the Court has adequately addressed the merit issues that require consideration prior to the granting of any development consent. This includes adequately addressing the merit issues raised by adjoining and nearby residents in respect to traffic, parking and amenity.

39. The Court orders that:

1. Pursuant to section 39(2) of the Land and Environment Court Act 1979, exercising the function of Blacktown City Council as consent authority under section 38(1) of the Environmental Planning and Assessment Regulation 2021, approves the application to amend Development Application No DA-22-01213 to rely on the amended plans and documents listed in Annexure A to these orders.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent, as agreed or assessed, that have been thrown away as a result of the amendment of Development Application DA-22-01213 as referred to in Order (1).

3. The appeal is upheld.

4. Restriction 9 contained in the Section 88B instrument (prepared pursuant to section 88B of the Conveyancing Act 1919) relating to DP 1170094 does not apply to the development the subject of Land and Environment Court proceedings No 2022/00336183, to the extent necessary to enable the development the subject of the grant of consent to be carried out.

5. The Development Application DA-22-01213, as amended, for the amalgamation of two lots into one lot, construction of two storey Centre Based Child care Facility with a maximum capacity of 122 children ranging from 0 to 5 years and basement parking, at 84-86 Amarco Circuit, The Ponds, NSW, Bayview Road, Canada Bay, is determined by the grant of Development Consent subject to the conditions set out in Annexure B to this judgment.

6. The Exhibits, apart from Exhibits A, C, D and 2, are returned.

S Harding AC

Acting Commissioner of the Court

ANNEXURE A

Annexure B

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Decision last updated: 07 November 2023