Think Planners Pty Ltd v Canterbury-Bankstown Council

[2021] NSWLEC 1573

Land and Environment Court

New South Wales

Medium Neutral Citation:

Think Planners Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1573

Hearing dates:

Conciliation conference on 2 September 2021

Date of orders:

29 September 2021

Decision date:

29 September 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [12]

Catchwords:

DEVELOPMENT APPLICATION – centre-based child care – conciliation conference – agreement between the parties – orders

Legislation Cited:

Canterbury Local Environmental Plan 2012, cll 5.10, 6.2

Education and Care Services National Regulations, regs 107, 108

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

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, cll 22, 23

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Texts Cited:

Canterbury Bankstown Community Participation Plan, November 2019

Child Care Planning Guideline, NSW Department of Planning and Environment, August 2017

Category:

Principal judgment

Parties:

Think Planners Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
M Hanna (Solicitor)(Applicant)
M Bonanno (Solicitor)(Respondent)

Solicitors:
Project Lawyers (Applicant)
Canterbury Bankstown Council (Respondent)

File Number(s):

2020/349156

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Canterbury Bankstown Council (the Respondent) of Development Application No. 565/2020 (the DA) seeking consent for retention of, and alterations and additions to, an existing dwelling house for a two storey, 37 place child care centre over a basement car park at No. 62 Crinan Street, Hurlstone Park (the site).

2. The matter was initially listed before me for hearing. However, prior to the commencement of the matter, the parties advised the Court that the parties had reached in-principle agreement on the matters in contention, and sought for the matter to be re-allocated to me for conciliation between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 2 September 2021, and at which I presided.

3. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 2 September 2021. The agreement records the agreement of the Respondent, as the consent authority, to the lodgement of the amended application on the NSW Planning Portal in accordance with cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), and the filing of the amended application with the Court, in accordance with s 8.15(3) of the EPA Act, which were effected prior to the conciliation conference.

4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

5. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

6. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the following environmental planning instruments:

• Canterbury Local Environmental Plan 2012 (CLEP);

• State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Childcare SEPP);

• State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55).

8. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [12]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:

1. Firstly, I am satisfied that DA was appropriately notified by the Respondent pursuant to the EPA Act, between 29 July 2020 and 18 August 2020 and in accordance with the Canterbury Bankstown Community Participation Plan, and that public submissions were considered.

2. The site is located within the R3 Medium Density Residential zone under the CLEP, in which centre-based childcare facilities are permitted with consent, and wherein the zone objectives are:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

3. While the site is not identified as an item of heritage significance, the parties agree that cl 5.10 of the CLEP applies to the site, that the demolition of the house is considered to have planning merit by the parties’ experts, and that the proposed development has been designed to be sympathetic and compatible with the adjoining properties that are considered to be contributory items in the possible future heritage conservation area proposed.

4. On the basis of the setback of the basement car park excavation from the boundary of the site, and the location of the OSD tank, which are both indicate on the architectural plans, I consider the provisions of cl  6.2 of the CLEP to have been met.

5. I also accept the architectural plans for which consent demonstrates compliance with regs 107 and 108 of the Education and Care Services National Regulations and so concurrence of the Regulatory Authority for the purpose of cl 22 of the Childcare SEPP is not required.

6. Further, on the basis of the assessment undertaken in the Statement of Environmental Effects, prepared by Think Planning dated 9 June 2020, I accept the proposed development is consistent with the Child Care Planning Guidelines that must be considered in accordance with cl 23 of the Childcare SEPP.

7. For the reasons set out on p 22 of the Statement of Environmental Effects, I am satisfied that the site is not contaminated within the terms of cl 7 of SEPP 55.

9. 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.

10. 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.

Orders

11. The Court notes:

• the Applicant has amended the application with the consent of Canterbury Bankstown Council.

• The following amended application was uploaded to the NSW Planning portal on 30 August 2021 comprising the following amended plans otherwise referred to in Condition 2 of Annexure “A”.

Drawing Title	Drawing No.	Rev.	Dated	Prepared by
Basement Plan	DA101	H	23/08/0221	Cracknell & Lonergan Architects Pty Ltd
Ground Floor Plan	DA102	H	23/08/0221	Cracknell & Lonergan Architects Pty Ltd
First Floor Plan	DA103	H	23/08/0221	Cracknell & Lonergan Architects Pty Ltd
Roof Plan	DA104	H	23/08/0221	Cracknell & Lonergan Architects Pty Ltd
Elevations	DA201	H	23/08/0221	Cracknell & Lonergan Architects Pty Ltd
Cross Sections	DA301	H	23/08/0221	Cracknell & Lonergan Architects Pty Ltd
Areas Schedule	DA401	H	23/08/0221	Cracknell & Lonergan Architects Pty Ltd
Front Façade Interpretation	DA501	H	23/08/0221	Cracknell & Lonergan Architects Pty Ltd
Landscape Plans	L000, L101, L301 & L201	C	10/08/2021	Xeriscapes

• That the Applicant has subsequently filed the amended application with the Court on 31 August 2021.

12. The Court Orders that:

1. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979 in the amount of $5,000.00 within 28 days of the date of this Order in full and final satisfaction of all the cost orders made in these proceedings.

2. The appeal is upheld;

3. Development consent is granted to Development Application No DA 565/2020 for the demolition of all existing structures and the construction of a two (2) storey place care facility for 37 places at the land known as Lots 6 & 7 in DP 3342, 62 Crinan Street, Hurlstone Park NSW, subject to the conditions of consent contained at Annexure “A”;

4. The Respondent is to register the Court’s Judgment in this matter on the NSW Planning Portal within 14 days from the date of Judgment.

…………………..

T Horton

Commissioner of the Court

Annexure A (260918, pdf)

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Decision last updated: 29 September 2021