St Mary's and St Mina's Coptic Orthodox Church v Bayside Council

[2021] NSWLEC 1520

Land and Environment Court

New South Wales

Medium Neutral Citation:

St Mary’s & St Mina’s Coptic Orthodox Church v Bayside Council [2021] NSWLEC 1520

Hearing dates:

Conciliation conference on 23 August 2021

Date of orders:

6 September 2021

Decision date:

06 September 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.
(2) Development Application No. 2019/255 (which amends Development Consent No. 1997/49 in relation to the operation of the existing church and school) for the demolition of existing structures and construction of a childcare centre for a maximum of 60 children, basement car park and landscaping, at 339-377 Forest Road, Bexley, is approved, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – childcare centre – conciliation conference – agreement between the parties – orders

Legislation Cited:

Airports (Protection of Airspace) Regulations 1996 (Cth)

Environmental Planning and Assessment Act 1979 s 4.16

Environmental Planning and Assessment Regulation 2000 cl 55

Land and Environment Court Act 1979 s 34

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 Pt 3

State Environmental Planning Policy (Infrastructure) 2007 cl 101

State Environmental Planning Policy No 55 - Remediation of Land cl 7

Rockdale Local Environmental Plan 2011 cll 4.3, 4.4, 5.10, 6.2, 6.4, 6.7

Category:

Principal judgment

Parties:

St Mary’s & St Mina’s Coptic Orthodox Church (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2020/254301

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2019/255 for the demolition of existing structures and construction of a childcare centre for 60 children, basement car park and landscaping (the proposal), at 339-377 Forest Road, Bexley (the site) by Bayside Council (the Council). The proposal includes changes to the operation of the existing church and school under Development Consent 1997/49.

2. The development application was amended, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, by the applicant with the consent of the Council, and the Council uploaded the amended application on the NSW planning portal on 18 August 2021 and the amended proposal was then filed with the Court on 19 August 2021.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 August 2021. I presided over the conciliation conference.

4. 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.

5. 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.

6. There are preconditions to the exercise of power to grant development consent for the proposal pursuant to the Rockdale Local Environmental Plan 2011 (LEP 2011).

Jurisdictional pre-conditions to the grant of consent

7. The site is zoned R2 Low Density Residential pursuant to LEP 2011 (Land Zoning Map – Sheet LZN_003 of LEP 2011). The objectives of the zone, to which regard must be had, 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 ensure that land uses are carried out in a context and setting that minimises any impact on the character and amenity of the area.

8. Centre-based childcare facilities are a nominate permissible use with consent in the R2 zone.

9. The height of buildings development standard for the site is 8.5m (cl 4.3 and Height of Building Map Sheet HOB_003 of LEP 2011). The floor space ratio (FSR) development standard for the site is 0.5:1 (cl 4.4 and Floor Space Ratio Map Sheet FSR_003 of LEP 2011). The proposal complies with these development standards.

10. The site is identified as a heritage item (Sch 5 Item 131 and Heritage Map Sheet HER_003 of LEP 2011) and described as “Original Bexley School buildings”. The Court, exercising the functions of the consent authority, must, before granting consent under cl 5.10 of LEP 2011 in respect of a heritage item, consider the effect of the proposed development on the heritage significance of the item. The proposal does not propose any works to the buildings on the site identified as the heritage item by the description in Sch 5 to LEP 2011. There is an existing basement in the vicinity of the proposed development and the Structural Feasibility Report regarding excavation and shoring prepared by Acroyali Engineering dated 21 April 2021 addresses the preservation of the existing basement. The proposal is supported by a Heritage Impact Statement prepared by Weir Phillips Heritage and Planning and dated April 2019. On the basis of all of the evidence before me, I am satisfied that the proposal will not affect the identified heritage significance of the heritage item.

11. The consent authority, before granting development consent for earthworks, must consider the matters listed under cl 6.2(3) of LEP 2011. I am satisfied, on the basis of the Geotechnical Investigation Report prepared by Geo-Environmental Engineering dated 17 January 2020, that the matters have been considered and that the proposed earthworks and excavation will not have a detrimental impact on the soil stability or the amenity of the neighbouring uses.

12. The proposal is affected by the obstacle limitation surface which is set at 51m AHD pursuant to cl 6.4(2) of LEP 2011. The application was referred to the Commonwealth for approval under the Airports (Protection of Airspace) Regulations 1996 (Cth) for the intrusion of the proposal into the Sydney Airport airspace and the relevant conditions proposed by the Commonwealth have been incorporated into the conditions of consent at Annexure A.

13. I am satisfied on the basis of the evidence before me that the requirements for stormwater under cl 6.7(3) of LEP 2011 are met by the proposal because there are existing stormwater arrangements on the site; the commitments in the Stormwater Concept Plan Certificate dated 29 April 2019 and the Stormwater Management Plan prepared by NY Civil Engineering dated 18 February 2020 are incorporated into the consent; the Council’s assessment report stated that the proposed stormwater system has been approved by Council’s development engineers; and no stormwater contentions were raised by the Respondent regarding the application.

14. Conditions have been incorporated into the conditions of consent at Annexure A requiring consultation with relevant utility providers relating to specific requirements for the provision of services on the site.

15. The site is not identified in the Council’s records as being affected by contamination, pursuant to cl 7 of State Environmental Planning Policy No 55 - Remediation of Land.

16. The proposal is located on land with a frontage to a classified road, Forest Road. The consent authority must be satisfied of the matters under cl 101(2) of the State Environmental Planning Policy (Infrastructure) 2007 before granting consent to the proposal. I am satisfied, on the basis of the evidence before me, that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the proposal because access to the site is from a secondary street, Bayview Street.

17. The proposal is subject to the development controls for early education and care facilities under Pt 3 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017. I accept the submission of the parties that the concurrence of a regulatory authority is not required because the indoor and outdoor play areas comply with cl 22 of the SEPP and that the applicable provisions of the Child Care Planning Guideline have been considered.

Orders

18. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2019/255 (which amends Development Consent No. 1997/49 in relation to the operation of the existing church and school) for the demolition of existing structures and construction of a childcare centre for a maximum of 60 children, basement car park and landscaping, at 339-377 Forest Road, Bexley, is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (523321, pdf)

Plans (25826084, pdf)

Plan of Management (7450639, pdf)

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Decision last updated: 06 September 2021