TGO Pty Ltd as Trustee for the Onisforou Investment Trust v Wingecarribee Shire Council

[2024] NSWLEC 1623

Land and Environment Court

New South Wales

Medium Neutral Citation:

TGO Pty Ltd as Trustee for the Onisforou Investment Trust v Wingecarribee Shire Council [2024] NSWLEC 1623

Hearing dates:

Conciliation conference on 4 October 2024

Date of orders:

04 October 2024

Decision date:

04 October 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent's costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The appeal is upheld.

(3) Development Application No. DA2023/1113, as amended, for the demolition of existing structures and construction of a 94-place centre-based childcare facility with associated parking and landscaping works at 4-6 Valetta Street, Moss Vale is determined by the grant of consent subject to the conditions of consent in Annexure ‘A’.

Catchwords:

APPEAL – development application – construction of a 94-place centre-based childcare facility with associated carparking, landscaping and ancillary works – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.15(3)

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations, regs 107, 108

Environmental Planning and Assessment Regulation 2021, ss 23, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.5

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.24, 3.25, 3.26

Wingecarribee Local Environmental Plan 2010, cll 2.3, 2.7, 4.3, 4.4, 5.10, 7.3; Sch 5

Texts Cited:

NSW Child Care Planning Guideline 2021

Category:

Principal judgment

Parties:

TGO Pty Ltd as Trustee for the Onisforou Investment Trust (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
D Le Breton (Solicitor) (Applicant)
A Guy (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/319656

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal against the deemed refusal of a development application no. DA2023/1113 by Wingecarribee Shire Council for the demolition of existing structures and construction of a 94-place centre based childcare facility (Centre) with associated carparking, landscaping and ancillary works (DA) at 4-6 Valetta Street, Moss Vale (site). The Centre is proposed to operate between 7:00 AM and 6:00 PM on Monday to Friday.

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 4 October 2024. I presided over the conciliation conference.

Amendments to the DA

3. During the conciliation the applicant amended its DA to include the following changes:

• Driveway and car park: Relocation of the driveway and car park from the Elizabeth Street frontage to the Valetta Street frontage away from the roundabout and residential interface. Increase in car parking spaces from 26 spaces to 30 spaces, including one accessible car space.

• Built form: Relocation of the building towards Elizabeth Street and Valetta Street, moving it away from the adjacent residential property and allowing the retention of natural ground level adjacent to the property boundaries, including in particular in the vicinity of Tree 27 which will ensure its retention. Outdoor play area have been relocated to the rear of the built form and setback further from the adjoining residential property.

• Landscaping: Inclusion of a 4-10m landscaped setback along Elizabeth and Valetta Streets, with a minimum 900mm setback on either side of the driveway entrance point.

4. I am informed that the amendments have resolved the contentions and the parties have reached an agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involves the grant of a development consent subject to the conditions in Annexure A.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.

6. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the parties’ s34 written agreement.

7. After a consideration of the parties’ submissions and the evidence I am satisfied that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard I note the following:

Environmental Planning and Assessment Regulation 2021 (EPA Reg)

8. Owner’s consent was provided in writing by the owner of the site to which the DA relates, being Theodore Onisforou on behalf of TGO Pty Ltd as Trustee for the Onisforou Investment Trust (Tab 2, Class 1 Application), in accordance with the requirements of s 23 of the EPA Reg.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

9. Section 4.6 in Ch 4 of the RH SEPP requires that a consent authority must not grant consent to any development unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. Further, if the site requires remediation to be made suitable, the consent authority is to be satisfied that the site will be remediated before the land is used for that purpose.

10. The site is currently occupied by a dwelling house and has historically been used for residential purposes, as outlined in the Statement of Environmental Effects (SEE) prepared by LEP Planning (Tab 3, Class 1 Application).

11. The parties are satisfied that the site has not been used for any land use activity listed in Table 1 of the Managing Land Contamination Guidelines.

12. The parties submit, and I accept that the site is unlikely to pose a significant risk of harm to human health or the environment and that consistent with the requirements of the RH SEPP, the site is suitable for use as a centre-based childcare facility.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

13. The site is identified as being located within the Sydney Drinking Water Catchment, and as such, is subject to assessment under Pt 6.5 of the BC SEPP. Part 6.5 of the BC SEPP requires that development within the Sydney Drinking Water Catchment, should incorporate Water NSW's current recommended practices and standards.

14. The Council referred the DA to Water NSW on 1 May 2023 and 6 July 2023. On 24 July 2023, Water NSW provided its concurrence, subject to conditions which are included in the conditions of consent at Annexure A.

15. The parties submit, and I accept that the proposed development would have a neutral or beneficial impact on water quality.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

16. The amended DA complies with regs 107 (indoor unencumbered space requirements) and 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations and therefore no concurrence is required pursuant to s 3.22 of the TI SEPP.

17. The parties agree that the amended DA has taken into consideration and is consistent with the provisions of the NSW Child Care Planning Guideline 2021 in satisfaction of s 3.23. Consideration of the relevant provisions of the NSW Child Care Planning Guideline 2021 can be found in the SEE (Tab 3, Class 1 Application).

18. The site is not located in a prescribed zone as set out in s 3.24(4) and therefore s 3.24 does not apply.

19. The site is not located in the R2 zone and therefore s 3.25 does not apply.

20. Section 3.26(2) sets out a number of non-discretionary development standards in relation to location, indoor or outdoor spaces, site area and site dimensions, and colour of building materials or shade structures. The parties submit, and I accept that the amended DA complies with the non-discretionary standards set out under s 3.26(2).

Wingecarribee Local Environmental Plan 2010 (LEP)

21. Development for the purposes of a centre-based childcare facility is permitted with consent in the R3 Medium Density Residential Zone (R3 Zone).

22. Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application. The Council accepts that the amended DA is consistent with the objectives of the R3 Zone.

23. Clause 2.7 of the LEP requires that demolition of a building may be carried out only with development consent. The DA seeks development consent for demolition of the existing buildings. Accordingly, the parties submit, and I accept that cl 2.7 of the LEP is satisfied.

24. The site is not listed as a heritage item under Sch 5 of the LEP, nor is it in proximity to any listed item. The site is not within a heritage conservation area although the Valetta Street Conservation Area is located on the other side of Elizabeth Street to the south and the Argyle Street Conservation Area is located on the other side of Valetta Street to the west. The parties submit, and I accept that the amended DA will not have any adverse impacts upon the significance of either of these heritage conservation areas consistent with cl 5.10 of the LEP.

25. Clause 7.3 of the LEP provides that development consent must not be granted unless certain matters in cl 7.3(3) have been considered. The relevant matters have been considered by the parties, and the parties are agreed that, subject to appropriate conditions being proposed, no unacceptable impact will arise.

Notification

26. Between 5 May 2023 and 19 May 2023, the DA was publicly notified. One (1) submission was received in response. The parties have considered the submission received in relation to the DA and are satisfied that the concerns of the objector in relation to the use of suitable materials, location of the car park and landscaping (including to soften the car park) have been addressed by the terms of the consent.

Notation and orders

27. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the Environmental Planning and Assessment Act 1979.

28. The Court notes:

1. That Wingecarribee Shire Council, as the relevant consent authority, has approved pursuant to s 38(1) of the EPA Reg, the amendment of development application no. DA2023/1113, comprising the following amended plans and documents:

1. Architectural Plans prepared by Antoniades Architects:

1. Drawing No. DA1.00, Cover Sheet, issue E dated 8 August 2024;

2. Drawing No. DA1.01, Site Analysis, issue E dated 8 August 2024;

3. Drawing No. DA1.02, Area Calculations, issue E dated 8 August 2024;

4. Drawing No. DA2.01, Demolition Plans - Ground Level, issue F dated 8 August 2024;

5. Drawing No. DA3.01, Site Plan, issue G dated 8 August 2024;

6. Drawing No. DA3.10, Ground Level Plan, issue J dated 8 August 2024;

7. Drawing No. DA3.11, Parking Level, issue I dated 8 August 2024;

8. Drawing No. DA4.01, Section A & B, issue E dated 8 August 2024;

9. Drawing No. DA4.12, Boundary Sections, issue H dated 8 August 2024;

10. Drawing No. DA5.01, Elevations North-West, East, issue F dated 8 August 2024;

11. Drawing No. DA5.02, South, West Elevation, issue E dated 8 August 2024;

12. Drawing No. DA7.01, Material Board, issue E dated 8 August 2024;

2. Landscape Plans prepared by Ground Ink:

1. Drawing No. LDA-001, Cover Sheet, revision B dated 27 June 2024;

2. Drawing No. LDA-002, Indicative Planting Palette, revision B dated 27 June 2024;

3. Drawing No. LDA-101, Landscape Plan, revision H dated 27 June 2024;

4. Drawing No. LDA-201, Planting Plan, revision B dated 27 June 2024;

5. Drawing No. LDA-301, Sections, revision B dated 27 June 2024;

6. Drawing No. LDA-901, Typical Details & Specifications, revision B dated 27 June 2024.

3. Civil and Stormwater Management Plans prepared by SEEC Consulting:

1. Drawing No. STW01, Concept Stormwater Management Plan, rev 01 dated 24 July 2024;

2. Drawing No. STW02, Concept Stormwater Management Catchment Plan & Calculations, rev 01 dated 24 July 2024;

3. Drawing No. STW03, Concept Stormwater Management Rainwater Tank & Typical Details, rev 01 dated 24 July 2024;

4. Drawing No. STW04, Concept Stormwater Water Quality Assessment & Results Summary, rev 01 dated 24 July 2024;

5. Drawing No. STW05, Concept Stormwater Bioretention Basin Typical Details, rev 01 dated 24 July 2024.

4. Arboricultural Impact Assessment and Tree Management Plan (Version 2) prepared by Horticultural Management Services dated 19 July 2024;

5. DA Acoustic Assessment (Revision 2) prepared by Acoustic Logic dated 18 July 2024;

6. Traffic Assessment Letter prepared by Transport and Traffic Planning Associates dated 19 June 2024;

7. Amended Plan of Management dated August 2024.

29. The Court orders:

1. The applicant is to pay the respondent's costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The appeal is upheld.

3. Development Application No. DA2023/1113, as amended, for the demolition of existing structures and construction of a 94-place centre-based childcare facility with associated parking and landscaping works at 4-6 Valetta Street, Moss Vale is determined by the grant of consent subject to the conditions of consent in Annexure ‘A’.

…………………..

S Dixon

Senior Commissioner of the Court

Annexure A (615500, pdf)

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Decision last updated: 04 October 2024