Sivabalakan v Cumberland Council

[2021] NSWLEC 1608

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sivabalakan v Cumberland Council [2021] NSWLEC 1608

Hearing dates:

Conciliation conference on 1 and 21 September 2021

Date of orders:

15 October 2021

Decision date:

15 October 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(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 consent authority, agreed in the sum of $3,500 to be paid within 28 days of orders being made.

(2) The appeal is upheld.

(3) Development Application DA 2021/0055 for demolition of existing structures and construction of a 4 storey, 111 place centre based child care facility over one level of basement on land legally described as Lots 82 in DP13239 and known as 1 Patricia Street, Mays Hill, is approved subject to conditions set out in Annexure ‘A’ to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – centre-based child care facility – R4 High Density Residential zone – conciliation conference – agreement between the parties – orders

Legislation Cited:

Education and Care Services National Regulations

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Holroyd Local Environmental Plan 2013, cll 6.2, 6.3, 6.7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 22, 23, 25

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Texts Cited:

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

Category:

Principal judgment

Parties:

Sharmila Sivabalakan (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Cumberland Council (Respondent)

File Number(s):

2021/117904

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Cumberland Council (the Respondent) of Development Application No. DA2021/0055 seeking consent for the demolition of existing structures and the construction of a 4 storey, 130 place centre based child care facility over two levels of basement parking at 1 Patricia Street, Mays Hill (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 was held on 1 September 2021, and at which I presided.

3. The conciliation conference was held on MS Teams, at which the parties reached in-principle agreement on the matters in contention, subject to the resolution of a number of matters which the parties’ advised me were capable of resolution. I adjourned the conciliation conference to allow the parties to continue to resolve those matters.

4. I granted a further adjournment on 21 September 2021 to permit the finalising of amended plans, and to facilitate the lodgement of the amended application on the NSW Planning Portal in accordance with cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), and the filing of the amended application with the Court, in accordance with s 8.15(3) of the EPA Act.

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 27 September 2021.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

7. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the following environmental planning instruments:

1. Holroyd Local Environmental Plan 2013;

2. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017; and

3. State Environmental Planning Policy No 55 – Remediation of Land.

10. I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the reasons that follow.

Holroyd Local Environmental Plan 2013

1. The site is located within the R4 High Density Residential zone as identified by the Holroyd Local Environmental Plan 2013 (HLEP), in which Centre-based child care facilities are permitted with consent, and where consistent with the following objectives of development in the zone:

•  To provide for the housing needs of the community within a high density residential environment.

•  To provide a variety of housing types within a high density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

2. On the basis of the Concept Stormwater Drainage Plans prepared by Deboke Engineering Consultants (Revision E), the Detailed Site Investigation prepared by Geotechnical Consultants Australia dated 16 April 2021, and the Remediation Action Plan of the same author, dated 9 June 2021, I am satisfied that the earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land in accordance with cl 6.2 of the HLEP.

3. Likewise, and after considering the landscape plans prepared by Outside In Design Group (Revision E), I am also satisfied that the development is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, includes on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and avoids any adverse impacts of stormwater runoff on adjoining properties, native vegetation in accordance with cl 6.7 of the HLEP.

4. As the site is located within an established urban area, I am satisfied that the essential services set out in cl 6.3 of the HLEP will be available to the development and, on the basis of the agreed conditions of consent, that adequate arrangements have also been made to make them available when required.

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP)

1. Clause 22 of the Child Care SEPP applies where the floor area of a child facility, or outdoor space, do not comply with unencumbered space requirements. The parties agree the proposal complies with those requirements.

2. Clause 23 of the Child Care SEPP requires that applicable provisions of the Child Care Planning Guideline be considered before determining the development application. I have considered the assessment of the proposed development against the provisions of the Child Care Planning Guideline in the Statement of Environmental Effects prepared by Think Planners dated 21 January 2020 and, following amendment of the architectural plans, I do not understand there to be any inconsistency evident in the development the subject of the agreement between the parties.

3. Clause 25 of the Child Care SEPP contains non-discretionary standards that, if complied with, prevent the consent authority from requiring more onerous standards for those matters. I accept that the proposed development achieves the standards set out at subcl (2)(a)-(d).

4. The development application is accompanied by a Plan of Management, dated 9 September 2021, that states the facility will operate strictly in accordance with the provisions of Education and Care Services National Regulations.

State Environmental Planning Policy No 55 – Remediation of Land

1. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the Detailed Site Investigation prepared by Geotechnical Consultants Australia dated 16 April 2021, the Remediation Action Plan of the same author, dated 9 June 2021, and the Hazardous Materials Survey also prepared by Geotechnical Consultants Australia dated 17 June 2021 and the proposed conditions of consent relevant to the development appeal, at Conditions 89, 90 and 112, I am satisfied that the site will be made suitable for the proposed development before the land is used for that purpose.

Conclusion

11. 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.

12. 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.

Orders

13. The Court notes that:

1. Cumberland Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application No. 2021/0055 filed with the Court on 28 April 2021.

2. The Applicant has lodged the amended development application on the NSW Planning Portal on 23 September 2021.

3. The Applicant filed with the Court the amended application on 27 September 2021.

14. The Court orders that:

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 consent authority, agreed in the sum of $3,500 to be paid within 28 days of orders being made.

2. The appeal is upheld.

3. Development Application DA 2021/0055 for demolition of existing structures and construction of a 4 storey, 111 place centre based child care facility over one level of basement on land legally described as Lots 82 in DP13239 and known as 1 Patricia Street, Mays Hill, is approved subject to conditions set out in Annexure ‘A’ to this agreement.

……………………

T Horton

Commissioner of the Court

Annexure A (432540, pdf)

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Decision last updated: 15 October 2021