The Trustee for Kyriacou Wise Property Unit Trust v Sutherland Shire Council

Case •

[2021] NSWLEC 1427

•

27 July 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: The Trustee for Kyriacou Wise Property Unit Trust v Sutherland Shire Council [2021] NSWLEC 1427
Hearing dates: Conciliation conference on 28 June and 5 July 2021
Date of orders: 27 July 2021
Decision date: 27 July 2021
Jurisdiction:Class 1
Before: Bradbury AC
Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on the amended plans set out in Condition 1 of Annexure A.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent, under section 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3) The Appeal is upheld.

(4) Development application DA200392 for the demolition of existing structures and the construction of a child care centre for 55 children, with basement carparking and associated landscaping at Lot 114 in DP 5606, known as 7 Telopea Avenue, Caringbah South is approved subject to the conditions at Annexure A.

Catchwords:

APPEAL – development application – child care facility – conciliation conference – agreement reached – orders made

Legislation Cited: Education and Care Services National Regulations Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 and 8.10
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, cl 22
State Environmental Planning Policy No 55— Remediation of Land, cl 7
Sutherland Shire Local Environmental Plan 2015
Category:Principal judgment
Parties: The Trustee for Kyriacou Wise Property Unit Trust (Applicant)
Sutherland Shire Council (Respondent)
Representation:

Counsel:
C Rose (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Sutherland Shire Council (Respondent)
File Number(s): 2020/299777
Publication restriction: Nil

Judgment

  1. This appeal concerns a development application (DA) for a child care facility on land described as Lot 114 DP 5606 and known as 7 Telopea Avenue, Caringbah South (the Land).

  2. The DA, as lodged, sought development consent for the demolition of existing structures and the construction of a child care centre for 52 children, with basement carparking and associated landscaping.

  3. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court’s jurisdiction.

  4. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

  5. The Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 28 June and 5 July 2021. I presided over the conciliation conference.

  6. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 13 July 2021 and is supported by a Statement of Reasons provided by the parties which sets out the basis for the agreement and the jurisdictional prerequisites for the grant of development consent. The agreement involves the Court exercising the function under cl 55 of the Environmental Planning and Assessment Regulation 2000(EPA Regulation) to grant leave to the applicant to amend the DA and for development consent to be granted subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

  7. The key changes between the plans as originally submitted and the plans that are the subject of the section 34 agreement are:

  1. The at grade car parking was replaced with basement car parking;

  2. Basement car parking enabled retention of significant trees on the site which improved the presentation of the proposal to the street;

  3. Additional car parking in the basement enabled a slight increase in number of children (from 52 to 55);

  4. Acoustic fencing details were improved; and

  5. Stormwater information was supplemented.

  1. I am satisfied that the proposed amendment to the DA is within the scope of the amendment power in cl 55 of the EPA Regulation. The essence of the development the subject of the DA remains the same.

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

  3. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons:

  1. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act.

  2. The proposed development is for the purpose of a child care facility. The Land is within R2 Low Density Residential under the Sutherland Shire Local Environmental Plan 2015 (LEP). Development for the purpose of a child care facility is permissible with development consent on land within that zone.

  3. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. In determining the DA, I have had regard to the objectives of the R2 Low Density Residential zone in the LEP. One of the zone objectives is to enable land uses that provide facilities or services to meet the day to day needs of residents and the proposed development is consistent with that objective.

  4. The proposed development complies with the applicable development standard in the LEP relating to building height (cl 4.3). The applicable maximum building height is 8.5 m and the maximum height of the proposed development is 5.112 m.

  5. The proposal provides 361.4m2 of landscaped area, which is 32% of the area of the Land and greater than the minimum of 25% prescribed by cl 6.14(5) of the LEP.

  6. The proposal has a floor space ratio of 0.30:1 which is less than the maximum of 0.55:1 specified in cl 4.4 of the LEP.

  7. Clause 6.2(3) of the LEP provides that, in deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters set out in that clause. I accept the agreed submission of the parties that the matters set out in cl 6.2(3) of the LEP are satisfactorily addressed by the amended application and proposed conditions of consent. The Land is in a residential area and conditions of consent have been proposed by the Council which I accept will ensure the excavation required for the building and basement will not impact on adjoining properties.

  8. Clause 6.4(3) of the LEP applies to the Land and provides that development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that the development—

(a)  is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b)  includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c)  avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

  1. The DA includes detailed plans in relation to stormwater management and proposed condition 12 of the agreed conditions of consent provides that the stormwater drainage system for the proposed development must be designed in accordance with the approved stormwater drainage design drawing, Australian Standard AS3500.3:2015, the BASIX Certificate issued for the development and Sutherland Shire Environmental Specification - Stormwater Management. I accept the agreed submission of the parties that the matters set out in cl 6.4(3) of the LEP are satisfactorily addressed by the amended application and proposed conditions of consent.

  2. Clause 6.16 of the LEP provides that, in deciding whether to grant development consent for any development, the consent authority must consider the following—

(a)  the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development,

(b)  the extent to which any buildings are designed and will be constructed to—

(i)  strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii)  contribute to the desired future character of the locality concerned,

(c)  the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain,

(d)  the extent to which the natural environment will be retained or enhanced by the development,

(e)  the extent to which the development will respond to the natural landform of the site of the development,

(f)  the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,

(g)  the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.

  1. I have had regard to these matters and I accept the agreed submission of the parties that they are satisfactorily addressed by the amended application and proposed conditions of consent.

  2. Clause 6.18 of the LEP applies to the proposed development and provides that development consent must not be granted to the DA unless the consent authority has considered the following—

(a)  the extent to which any proposed non-residential accommodation and its design will integrate into the locality,

(b)  the extent to which any such accommodation will respond to the local character, and relate to the scale, streetscape, setbacks and use of materials of other accommodation in the locality,

(c)  the extent to which the residential amenity of the locality will be protected from detrimental traffic-related impacts and noise associated with the development.

  1. I have also had regard to these matters and I accept the agreed submission of the parties that they are satisfactorily addressed by the amended application and proposed conditions of consent.

  2. Part 3 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP) applies to the proposed development. Clause 22 of the Child Care SEPP provides that development consent must not be granted to development for the purpose of a centre-based child care facility if:

  1. the floor area of the building or place does not comply with reg 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations (the Care Services Regulations), or

  2. the outdoor space requirements for the building or place do not comply with reg 108 (outdoor unencumbered space requirements) of the Care Services Regulations.

  1. Reg 107 of the Care Services Regulations requires that, for each child being educated and cared for, a child care facility must have at least 3.25 m2 of unencumbered indoor space.

  2. Reg 108 of the Care Services Regulations requires that, for each child being educated and cared for, a child care facility must have at least 7 m2 of unencumbered outdoor space.

  3. The parties agree and I accept that there will be 195.1 m2 of unencumbered indoor space for children at the child care facility. There will be a maximum of 55 children attending the facility so the minimum area required is 178.75 m2 (3.25m2 x 55) and the proposed development complies with this requirement.

  4. The parties also agree, and I accept, that there will be 391 m2 of unencumbered outdoor space for children at the child care facility. For the maximum of 55 children attending the facility the minimum area required is 385 m2 (7 m2 x 55) and the proposed development complies with this requirement.

  5. I am therefore satisfied that the proposed development satisfies the requirements of regs 107 and 108 and consequently that the concurrence of the Regulatory Authority is not required.

  6. The State Environmental Planning Policy No 55—Remediation of Land applies to the site. The site has been used for residential purposes for many years and I am satisfied that the site is unlikely to be contaminated.

  7. The Council’s Statement of Facts and Contentions indicates that on 19 June 2020 the DA was notified by the Council to surrounding and affected property owners. The Council received 34 submissions and one petition in response. On 26 October 2020 the Council notified an amended DA to surrounding and affected property owners. Without prejudice plans showing the proposed basement car parking were notified for a period of 28 days from 8 March 2021 to 5 April 2021 and a number of additional submissions were received in response. The submissions raised concerns about landscaping, noise, social impact (including the availability of other child care facilities in the area), traffic congestion and safety, parking and stormwater). I am required by s 4.15(1)(d) of the EPA Act to take any submissions on the DA into consideration. The Council provided the Court with a bundle of documents which included copies of the submissions, providing me with the opportunity to consider the issues that had been raised by the objectors. The Council also explained the consideration of the submissions undertaken by the parties’ experts which have resulted in numerous amendments to the proposed development. I am satisfied that the requirement to give consideration to the submissions has been met.

  1. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

  2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was 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 EPA Act.

  3. The Court orders that:

  1. The Applicant is granted leave to rely on the amended plans set out in Condition 1 of Annexure A.

  2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent, under section 8.15(3) of the Environmental Planning and Assessment Act 1979.

  3. The Appeal is upheld.

  4. Development application DA200392 for the demolition of existing structures and the construction of a child care centre for 55 children, with basement carparking and associated landscaping at Lot 114 in DP 5606, known as 7 Telopea Avenue, Caringbah South is approved subject to the conditions at Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (299465, pdf)

Architecture Plans (3375395, pdf)

Landscape Plans (3775025, pdf)

Stormwater Plans (169295, pdf)

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Decision last updated: 27 July 2021

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