Squillacioti v Camden Council

[2023] NSWLEC 1090

Land and Environment Court

New South Wales

Medium Neutral Citation:

Squillacioti v Camden Council [2023] NSWLEC 1090

Hearing dates:

Conciliation conference on 6 and 20 December 2022: 24 January 2023, 24 February 2023.

Date of orders:

01 March 2023

Decision date:

01 March 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2) The appeal is upheld.

(3) Development application 2021/1210/1, as amended during Land and Environment Court proceedings No. 2022/238636, for construction of a centre-based child care facility for 68 children between the ages of 0-5 years with associated car parking, landscaping and civil works at 30 Sharman Close, Harrington Park (Lot 16 DP 1094115) is determined by the grant of consent subject to the conditions in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION: centre based child care facility – heritage conservation area – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s34

Camden Local Environmental Plan 2010, cll 4.3, 4.4, 5.10, 7.4, Sch 5

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.25, 3.26

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

Category:

Principal judgment

Parties:

Jay Squillacioti (Applicant)
Camden Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor) (Applicant)
K Huxley (Solicitor) (Respondent)

Solicitors:
J Cole Planning (Applicant)
Holding Redlich (Respondent)

File Number(s):

2022/238636

Publication restriction:

Nil

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 Camden Council (the Respondent) of development application 2021/1210/1 seeking consent for construction of a centre-based child care facility for 72 children between the ages of 0-5 years with associated car parking, landscaping and civil works at 30 Sharman Close, Harrington Park.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, at which I presided on 6 December 2022.

3. At the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application.

4. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted a further adjournment so that those amendments agreed to between the parties could be finalised in amended plans and other documents, and for the Respondent to notify surrounding residents of the amended proposal which occurred between 7 – 21 February 2023.

5. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 24 February 2023.

7. The parties ask me to approve their decision as set out in the s34 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 s34 agreement.

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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [19], as follows:

9. The site is located within the R2 Low Density Residential zone according to the Camden Local Environmental Plan 2010 (CLEP) in which centre based child care facilities are permitted with consent, where consistent with the objectives of the R2 zone, which are:

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

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

•  To allow for educational, recreational, community and religious activities that support the wellbeing of the community.

•  To minimise conflict between land uses within the zone and land uses within adjoining zones.

10. The proposed development is within the height permitted by the height of building standard at cl 4.3 of the CLEP, and complies with the floor space ratio (FSR) permitted by the relevant standard at cl 4.4 of the CLEP. Relevantly, the FSR is also consistent with that permitted by s 3.25 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP).

11. The site is located within the Struggletown Conservation Area (SCA) identified in Sch 5 of the CLEP. The development application is supported by a statement of heritage impact prepared by Stedinger & Associates dated October 2021. I consider the amendments evident in the amended development application results in a development that is sympathetic to the heritage values of the SCA and so imposes no adverse impact pursuant to cl 5.10(4) of the CLEP.

12. I have considered those matters set out at cl 7.4(3) of the CLEP in respect of earthworks. On the basis of the Geotechnical Investigation prepared by Keighran Geotechnics dated December 2022, the letter prepared by Prascon Civil, Structural and Materials Engineers dated 6 January 2023 proposing a Preliminary Design and Proposed Construction Methodology for the basement perimeter wall, and the Stormwater Engineering Plans prepared by SGC Consulting engineers dated, I accept the earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses or heritage features of the area.

State Environmental Planning Policy (Transport and Infrastructure) 2021

13. Clause 3.26 of the Infrastructure SEPP contains non-discretionary development standards that, if complied with, preclude the requiring of more onerous standards. I note the proposal complies with the requirements of subs 3.26(2)(b) for indoor and outdoor space, and I accept that the materials and finishes nominated on the Finishes Schedule 1e and 2e of the architectural plans are appropriate for the SCA identified at [11], consistent with subs 3.26(2)(d).

14. I also accept that the proposed development has taken into account, and demonstrates consistency with, the applicable provisions of the Child Care Planning Guideline, in accordance with s 3.23 of the Infrastructure SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. On the basis of the Contamination Report, Phase 1 and Validation prepared by National Asbestos Solutions, dated October 2021 and the Environmental Site Validation Report prepared by HEC dated 21 December 2022, I have considered whether the site is contaminated in terms set out at s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, and I am satisfied the site is suitable for the purpose for which the development is proposed to be carried out.

Conclusion

16. 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.

17. 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.

18. I note Camden Council, as the relevant consent authority, agreed to the Applicant amending the development application in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000, by those plans and other documents in Annexure A, filed with the Court on 24 February 2023.

Orders

19. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The appeal is upheld.

3. Development application 2021/1210/1, as amended during Land and Environment Court proceedings No. 2022/238636, for construction of a centre-based child care facility for 68 children between the ages of 0-5 years with associated car parking, landscaping and civil works at 30 Sharman Close, Harrington Park (Lot 16 DP 1094115) is determined by the grant of consent subject to the conditions in Annexure B.

T Horton

Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 01 March 2023