Tahany Pty Limited v North Sydney Council

[2024] NSWLEC 1460

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tahany Pty Limited v North Sydney Council [2024] NSWLEC 1460

Hearing dates:

Conciliation Conference 3 May, 3, 27 June, 4 July 2024

Date of orders:

01 August 2024

Decision date:

01 August 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders:

(1) The appeal is upheld;

(2) Development consent is granted to DA271/2023 for the reconfiguration of internal rooms and spaces and to amend Condition 13 in Development Consent No DA221/2016 to increase the number of children to 65 children, and the number of educators to 11 at the existing child care centre at 37 to 39 Murdoch Street, Cremorne, NSW 2090, subject to the conditions in Annexure A;

(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, as agreed or assessed within 28 days of the date of these Orders.

Catchwords:

DEVELOPMENT APPEAL – existing child care centre – minor reconfiguration for increase in numbers of children – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

North Sydney Local Environmental Plan 2013

Category:

Principal judgment

Parties:

Tahany Pty Limited (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Seton (Solicitor)(Respondent)

Solicitors:
Sattler & Associates (Applicant)
Marsdens (Respondent)

File Number(s):

2023/336832

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 development appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) from the deemed refusal by the North Sydney Council (the Council) of DA271/2023 (the Development Application) for additional child numbers to an approved childcare centre (Proposed Development) at 37-39 Murdoch Street, Cremorne, NSW 2090, being Lot C in 158882 and Lot 1 in DP 607324 (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 site and at Court. I presided over the conciliation conference.

3. 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 and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development, as amended, with conditions at Annexure A.

4. Amendments arising out of the s 34 conference included reducing the approved number of children from 69 to 65 and the removal of a partition wall on the lower ground floor in the final plan set (filed in the Court on 10 July 2024) which are the subject of agreement between the parties. The child care centre is known as “Rhonda’s Cottage”, has been in operation for many years and the DA seeks changes to the current approved facility.

5. The DA in its final form seeks consent for:

1. Lower Ground Floor - Removal of partition wall near stair to provide increase play area;

2. Capacity/Operation - The number of children will increase to 65 and the number of educators will be increased to 11. No changes are sought to the operation hours of the Centre.

6. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.

Satisfaction as to Jurisdiction:

7. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters.

North Sydney Local Environmental Plan 2013 (NSLEP)

8. The site is zoned R3 Medium Density Residential pursuant to the NSLEP and development for the purpose of centre-based childcare centres is permissible in the R3 zone under the zoning table to NSLEP. The Proposed Development concerns relatively minor changes to an existing child care centre and remains consistent with the R3 zone objectives reproduced in the Statement.

9. The parties agreed Statement sets out each State Environmental Planning Policy (SEPP) of relevance to the Proposed Development which is reproduced in full as follows:

“SEPP (Resilience and Hazards) 2021

1. Clause 4.6 of this SEPP is a relevant consideration. A childcare centre is already approved and operational on the Land. The Proposal only seeks an increase in child numbers to 65 at the existing approved centre. Prior to the childcare centre use of the land the site was used for residential purposes for a significant period of time with no prior land use. As this development application only relates to increasing child numbers and no excavation is proposed therefore no further analysis of contamination of the ground is required.

…

State Environmental Planning Policy (Transport & Infrastructure) 2021

1. The Proposal has frontage to Murdoch Street which is a classified Road.

2. The development constitutes an increase in child numbers within an already approved existing childcare centre with a maximum number of kids of 50 agreed to be acceptable.

3. The DA complies with the unincumbered indoor space requirements in Regulation 107 and the of the unincumbered outdoor space requirements in Regulation 108 of the Education and Care Services National Regulations. Accordingly, Clause 3.22(1)(a) in Part 3.3 does not apply.

4. The centre will need the consent of the regulatory authority for the increased number of children.

5. The centre will remain compatible with neighbouring land uses. It does not have a proximity to restricted premises or hazardous land uses and it has no inherent health risks in the operation of the centre that children or employees can be exposed to.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. The site is located within the Sydney Harbour Catchment and as such the provisions of Chapter 6 Water Catchments applies. The following sections contains matters about which the consent authority must be satisfied of prior to the determination of the development application:(a) Section 6.6 ‘Water quality and quantity’ subsection (2);

(b)    Section 6.7 ‘Aquatic ecology’ subsection (2);

(c)   Section 6.8 ‘Recreation and public access’ subsection (2);

1. The DA only seeks consent to increase the number of children, and for a minor internal reconfiguration. No external works are proposed or any changes to the approved stormwater management system which could result in impacts to the Sydney Harbour Catchment. As such the consent authority can be satisfied that the child care centre does not contribute to any negative impact on the catchment or waters of Sydney Harbour.”

   10. I have considered the parties assessment of the applicable SEPPs as applied to the Proposed Development and set out above and accept the conclusions reached.

Notification and Public Submissions

11. The original development application was notified in accordance with Council Notifications Policy. The application was publicly notified between 22 September 2023 and 6 October 2023. 5 submissions were received.

12. Issues raised were:

1. Adverse noise impacts for nearby properties.

2. Adverse amenity impacts during the construction period.

3. Additional traffic movements adversely impacting on traffic volume and safety along Reed Lane.

4. Impacts on the availability of on street parking.

5. The existing centre has not been operating with respect to the neighbours; and

6. The appropriateness of accommodating additional children within the existing building.

13. The Court heard oral submissions on Site from the neighbour to the south who was speaking on behalf of the other residents in the subject block of units.

14. The reduction in proposed child numbers from the maximum requested in the development application and the increase in unencumbered play area by the removal of the partition wall has allowed agreement between the experts that the DA is now satisfactory and the Council agreed to the Proposed Development as amended.

15. The DA as amended was notified by the Respondent from 19 June 2024 until 3 July 2024. One submission was received by the Respondent in response to notification. No new issues to the list above were raised. I am satisfied that the resident objectors’ reasonable concerns were considered by the parties and the resident objectors were accorded procedural fairness.

Conclusion:

16. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

17. 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. 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.

Notations:

18. The Applicant, with the consent of the Council, is granted leave, pursuant to s 38(1) of the Environmental Planning & Assessment Regulation 2021, to amend the development application to rely upon the amended architectural plans and documents listed as follows:

Plan	Plan No.	Revision/Issue No.	Plan date as amended	Prepared by
Amended DA lower ground floor	DA-01	B	6 May 2024	Robertson Marks, architects
Amended DA ground floor	DA-02	A	6 May 2024	Robertson Marks architects
Lower Ground Level – Storage	STORE_01	A	2 May 2024	Robertson Marks architects
Ground Floor – Storage	STORE_02	A	2 May 2024	Robertson Marks architects
Plan of Management	Rev 6	29 May 2024	Lynda Campbell
Green Travel Plan	27 May 2024	McLaren Traffic Engineers and Road Safety Consultants.
Travel Access Guide	27 May 2024	McLaren Traffic Engineers and Road Safety Consultants

Orders:

19. The Court orders:

1. The appeal is upheld;

2. Development consent is granted to DA271/2023 for the reconfiguration of internal rooms and spaces and to amend Condition 13 in Development Consent No DA221/2016 to increase the number of children to 65 children, and the number of educators to 11 at the existing child care centre at 37 to 39 Murdoch Street, Cremorne, NSW 2090, subject to the conditions in Annexure A;

3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, as agreed or assessed within 28 days of the date of these orders.

L Byrne

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 01 August 2024