Templeton Crescent Pty Ltd v Liverpool City Council

[2023] NSWLEC 1521

Land and Environment Court

New South Wales

Medium Neutral Citation:

Templeton Crescent Pty Ltd v Liverpool City Council [2023] NSWLEC 1521

Hearing dates:

Conciliation conference on 11 August and 31 August 2023

Date of orders:

13 September 2023

Decision date:

13 September 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The Applicant to pay the Respondent’s costs thrown away as a result of the amendments made in the sum of $1,000, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, within 28 days of these orders.

(2) The appeal is upheld.

(3) Development Application DA-834/2022 for demolition of existing dwellings and ancillary structures, lot consolidation, construction of a centre-based child care facility accommodating 82 children and associated at grade car parking at 21-23 Templeton Crescent, Moorebank, is determined by a grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – child care facility – agreement between the parties – orders

Legislation Cited:

Education and Care Services National Regulations 2011, rr 107,108

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

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979 s 34(1)

Liverpool Local Environmental Plan 2008 cll 2.1, 4.3, 4.4, 5.21, 7.31

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

State Environmental Planning Policy (Transport and Infrastructure) 2021 ss 3.22, 3.23, 3.26

Texts Cited:

NSW Department of Planning, Industry and Environment Child Care Planning Guideline, 2021

Category:

Principal judgment

Parties:

Templeton Crescent Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Marginson (Solicitor)(Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/77373

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from the actual refusal of development application DA-834/2022 which seeks consent for the demolition of existing dwellings and ancillary structures and constriction of a centre-based child care accommodating 86 children and at-grade parking, at 21-23 Templeton Crescent, Moorebank, Lots 81 and 82 in DP 22416. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

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 11 August and 31 August. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application, as amended, subject to conditions. The amended application proposes the following changes:

1. A reduction in the number of children from 86 to 82;

2. Revision of the carparking layout and reduction in the number of spaces from 23 to 21, and extension of landscaping along the entire eastern boundary of the site;

3. A reduction in the extent of the proposed built form fronting the street;

4. Increased setbacks to the eastern and southern boundaries to accommodate additional landscaping;

5. Amendment to the heights of the proposed acoustic fence treatments along the boundary;

6. Relocation of waste storage;

7. Provision of landscaping planter boxes along the eastern boundary of first floor outdoor play areas;

8. Deletion of the music room on the first floor;

9. The revision of façade materiality along site frontage to differentiate upper and lower levels;

10. The realignment of the pedestrian entrance to the centre, including the addition of an awning to the front entrance;

11. The provision of 1.2m high fencing along the site frontage; and

12. Clarification as to operational details of the centre

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how each prerequisite has been satisfied. From that I note the following points.

5. As per the definition provided in the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), the proposed development is defined as a ‘centre-based child care facility’. Subsequently, Pt 3.3 of the Transport and Infrastructure SEPP, ‘Early Education and Care Facilities’ applies to the development. Pursuant to the requirements of this SEPP, the parties submit and I accept that:

1. The proposed development complies with rr 107 and 108 of the Education and Care Services National Regulations 2011, and subsequently, pursuant to s 3.22, the concurrence of the regulatory authority is not required.

2. Pursuant to the requirements of s 3.23, the applicant has prepared a detailed consideration of the applicable provisions of the NSW Department of Planning, Industry and Environment Child Care Planning Guideline, 2021 in the Statement of Environmental Effects (SEE). The parties submit, and I accept, that the amended application results in a development that meets all relevant controls.

3. Pursuant to the relevant non-discretionary development standards under s 3.26, the proposed development complies with all relevant indoor and outdoor play space requirements, and as the site is neither a listed heritage item or within a heritage conservation area, there are no particular requirements relating to colour of buildings or shade structures.

6. Pursuant to the requirements of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), I must consider whether the land is contaminated and if so, whether it is suitable, or will be suitable after remediation for the intended purpose. The parties submit and I accept that, as detailed in the SEE, the historical use of the site is residential and there is no evidence of potential contamination, and that the site is suitable for the intended purpose.

7. Pursuant to the Liverpool Local Environmental Plan 2008 (LLEP), the site is mapped as R3 Medium Density Residential, within which centre-based child care facilities are permissible with consent. The parties submit, and I accept, that the proposed development is consistent with the objectives of the R3 zone.

8. The height of the proposed building is below the 8.5m maximum height established under LLEP cl 4.3, and below the maximum floor space ration of 05:1 established under cl 4.4.

9. The site is not identified within a flood planning area pursuant to LLEP cl 5.21.

10. Pursuant to LLEP cl 7.31, development consent is required for the proposed earthworks, which form part of this development application. The parties submit, and I accept that, the considerations listed in LLEP cl 7.31(3) are adequately addressed by the Erosion and Sediment Plans prepared by JN Responsive Engineering, and the Waste Management Plan prepared by Artmade Architects. Further, conditions of consent adequately address the management and assessment of fill prior to construction and require compliance with the aforementioned documents.

11. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

12. 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.

13. The Court notes:

1. Liverpool City Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-834/2022 in accordance with the documents listed below:

No.	Document	Date
1.	Schedule of Amendments prepared by Artmade Architects	21 August 2023
2.	Amended Architectural Plans prepared by Artmade Architects	17 August 2023
3.	Amended Landscape Plan prepared by Greenscape Design	23 August 2023
4.	Amended Stormwater Plans prepared by JN Engineering	23 August 2023
5.	Amended Erosion and Sediment Control Plan prepared by JN Engineering	23 August 2023
6.	Amended Plan of Management prepared by Avenue Planning	18 August 2023
7.	Evacuation Management Plan prepared by Avenue Planning	14 August 2023
8.	Amended Acoustic Report prepared by Day Design	18 August 2023

2. The amended development application was filed with the Court on 5 September 2023.

14. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments made, in the sum of $1,000, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, within 28 days of these orders.

2. The appeal is upheld.

3. Development Application DA-834/2022 for demolition of existing dwellings and ancillary structures, lot consolidation, construction of a centre-based child care facility accommodating 82 children and associated at grade car parking at 21-23 Templeton Crescent, Moorebank, is determined by a grant of consent subject to conditions contained in Annexure A.

E Washington

Acting Commissioner of the Court

77373.23 Annexure A

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Decision last updated: 13 September 2023