Thompson 888 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1733

Land and Environment Court

New South Wales

Medium Neutral Citation:

Thompson 888 Pty Ltd v Liverpool City Council [2023] NSWLEC 1733

Hearing dates:

Conciliation Conference 27 November 2023

Date of orders:

05 December 2023

Decision date:

05 December 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3) Development Application No: DA-253/2023, for alterations and additions to the approved childcare centre approved under Development Consent No. DA-651/2022 to increase capacity by 10 children to a total of 120 children and provide an additional 3 car spaces at 22-24 Thompson Avenue, Moorebank, is determined by way of grant of consent, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions – boarding house – heritage – conciliation conference – agreement between the parties – orders

Legislation Cited:

Education and Care Service National Regulations

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 2.7, 4.3, 4.4, 5.10

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

State Environmental Planning Policy Amendment (Water Catchments) 2022

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, Pt 3.26

Texts Cited:

Liverpool City Council Community Engagement Strategy 2021-22

Liverpool Community Participation Plan 2022

Category:

Principal judgment

Parties:

Thompson 888 Pty Ltd ABN 50 624 710 881 (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Bartier Perry (Respondent)

File Number(s):

2023/199527

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), being an appeal against the refusal of development application DA-253/2023, which seeks consent for alterations and additions to the unbuilt childcare centre approved under DA-651-2022 to increase capacity by 10 children to a total of 120 children, alterations to the indoor ground floor play areas including relocation of the kitchen to the ground floor, alterations to the approved outdoor and indoor first floor play area and alterations to the approved basement resulting in three additional car spaces (the Proposed Development) at 22 & 24 Thompson Avenue, Moorebank legally described as Lots 38 & 39 DP228324 (the 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 has been held on 27 November 2023. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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. 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.

The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. Under the s34 Agreement, the Applicant seeks to formally amend its DA. The amendments are in response to Council’s Statement of Facts and Contentions (SOFAC) filed 14 August 2023 and the parties experts’ agree that all Contentions raised in the SOFAC have been resolved by the preparation of the amended plans and material set out in Annexure A.

5. As amended, the Proposed Development seeks consent for alterations and additions to an approved unbuilt child care centre (approved under Development Consent No. DA-651/2022) involving an increase in the approved maximum number of children at the centre from 110 to 120 children, alterations to the indoor ground floor play areas including relocation of the kitchen to the ground floor, alterations to the approved outdoor and indoor first floor play area and alterations to the approved basement resulting in three additional parking spaces at the Site. The amendments to the Proposed Development are as follows:

1. Relocated roller garage door so that it cannot be seen from street view and amended the roller door colour to Stowe White in response to contention 1(d) of the SOFAC;

2. Amended the indoor spaces on the first floor spaces to ensure supervision of children at all times in response to contention 1(f) of the SOFAC;

3. Bicycle spaces have been allowed for in the basement in response to contention 2(b) of the SOFAC;

4. The plans have been amended to allow for unencumbered area of 5 x 6m in the rear setback for the opportunity to accommodate the planting of deep rooted trees and the unencumbered area for deep soil does not encroach on the sewer line in response to contention 2(c) of the SOFAC by redesigning the nappy change area, relocating the accessible WC and bath and relocating the craft bench & bottle preparation area.

5. In response to contention 7 of the SOFAC the plans are accompanied by indoor/outdoor calculation plan demonstrating compliance with the indoor/outdoor calculation requirements under the Child Care Guideline.

6. The landscaping plans have been amended to delete the chicken coup in response to Contention 1 and to be consistent with the architectural plans in response to Contention 9.

7. An evacuation plan which has been prepared in response to contention 1(e).

8. An amended Plan of Management has been prepared having regard to contentions 1(e), 2(e) and 6.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note.

7. The Proposed Development was notified in accordance with the Respondent’s Community Participation Plan 2022 for a period of 28 days from 27 June 2023. One submission was received during this public notification period. The submission raised concerns with respect to traffic and pedestrian safety. In accordance with the Respondent’s Community Engagement Strategy and Community Participation Plan 2022, the DA, as amended, is not required to be renotified as the amendments did not intensify or change the external impact of the development.

8. The Liverpool Local Environmental Plan 2008 (LLEP) is the relevant local environmental planning instrument that applies to the Site.

9. Compliance with the LLEP is addressed generally in the Statement of Environmental Effects (SEE) prepared by Think Planners dated 30 April 2023 filed with the Class 1 Application at Tab 4, however specific jurisdictional prerequisites are addressed below.

10. The Site is zoned R4 High Density Residential under the LLEP and the Proposed Development is permissible with consent in the R4 zone and demolition works are permissible with consent under cl 2.7.

11. The maximum height of building (HOB) development standard for the Site is 12 m as prescribed by cl 4.3 of the LLEP and the Proposed Development is located wholly below the HOB of 12m.

12. The maximum floor space ratio (FSR) development standard of 0.75:1 for the Site is prescribed by cl 4.4 of the LLEP and the Proposed Development has an FSR of 0.44:1.

13. In relation to cl 5.10 of the LLEP which relates to heritage conservation, the Site does not contain an item of heritage nor is the Site located within a heritage conservation area under Schedule 5 of the LLEP. There are not any local heritage items within the context of the Site.

14. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

15. The Site has an historical residential use and is located within a residential locality. Based on historical records, there is no suggestion that the Site would have been contaminated. There are no immediate site conditions which would require remediation of the Site. Further, a Preliminary Site Investigation Report has been prepared for the Site, and filed under Tab 10 of the Class 1 Application, to identify whether the Site presents a risk to human health and/or the environment arising from any past/present activities at the Site or neighbouring properties. The Preliminary Site Investigation Report concludes at pages 3-4 that based on an inspection of the Site and historical investigation of the Site, actual and potential contamination sources are low and the Site can be made suitable for the Proposed Development subject to the recommendations in the report. Accordingly, the Court is satisfied that the Site can be made suitable for the proposed development.

16. The State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments Amendment SEPP) commenced on 21 November 2022 and served to repeal the previous Chapters 6 to 12 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) and insert a new Ch 6 (Water Catchments). Chapter 6 of the Biodiversity Conservation SEPP requires that a consent authority must consider and be satisfied as to the matters referred to in Pt 6.2 of the Biodiversity and Conservation SEPP.

17. The matters for satisfaction under Pt 6.2 have been addressed in the following reports before the Court:

1. SEE;

2. Stormwater Management Plans prepared by Amity Engineers Pty Ltd dated 4 April 2023 (Tab 12, Class 1 Application);

3. Preliminary Site Investigation Report prepared by Australian GeoEnviro Pty Ltd dated 28 October 2022 (Tab 10, Class 1 Application);

4. Amended Waste Management Plan prepared by Dickens Solutions dated March 2023 (Tab 13, Class 1 Application).

18. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) relates to Education establishments and child care facilities and provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across the State of NSW.

19. The parties have taken into consideration the applicable provisions of the Child Care Planning Guidelines, addressed at pages 27 to 45 of the SEE, as required by s 3.23 of the Transport and Infrastructure SEPP.

20. Section 3.26 of the Transport and Infrastructure SEPP sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority from requiring more onerous standards for those matters. Section 3.26(2) sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) provides the requirements for indoor or outdoor space. The Proposed Development provides at least 3.25m² of unencumbered indoor play space and at least 7m² of unencumbered outdoor play space which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations, which requires 3.25m² of unencumbered indoor play space and 7m² of unencumbered outdoor play space.

21. The Education and Care Services National Regulations provides extensive controls and requirements in addition to that of LEP and PDCP and includes:

1. licensing and approvals processes, including documentation requirements;

2. facilities and equipment requirements;

3. staffing requirements;

4. child number requirements;

5. operational requirements;

6. administrative requirements;

7. probity check requirements; and

8. various miscellaneous requirements.

22. Compliance with Education and Care Services National Regulations is assessed as part of the assessment against the Child Care Planning Guidelines at pages 46 to 48 of the SEE.

23. 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. I adopt the reasons given by the parties as set out in this judgment.

24. 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.

Notations:

25. The Court notes that the Respondent has agreed, as the relevant consent authority has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No: DA-253/2023 to rely upon the following further and amended plans and documents (Amended Development Application), as filed with the Court:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
Drawing No 00 Rev M	Cover Page	Baini Design	17 November 2023
Drawing No 01 Rev M	Compliance Table, Location Plan		17 November 2023
Drawing No 02 Rev M	Site Context Plan		17 November 2023
Drawing No 03 Rev M	Site Analysis Plan		17 November 2023
Drawing No 04 Rev M	9am Shadow Diagram		17 November 2023
Drawing No 05 Rev M	12pm Shadow Diagram		17 November 2023
Drawing No 06 Rev M	3pm Shadow Diagram		17 November 2023
Drawing No 07 Rev M	Site & Demolition Plan		17 November 2023
Drawing No 08 Rev M	Basement Floor Plan		17 November 2023
Drawing No 09 Rev M	Ground Floor Plan		17 November 2023
Drawing No 10 Rev M	First Floor Plan		17 November 2023
Drawing No 11 Rev M	Roof Plan		17 November 2023
Drawing No 12 Rev M	Elevations		17 November 2023
Drawing No 13 Rev M	Elevations		17 November 2023
Drawing No 14 Rev M	Sections		17 November 2023
Drawing No 15 Rev M	Callout Elevations		17 November 2023
Drawing No 16 Rev M	Kitchen & Laundry Details		17 November 2023
Drawing No 17 Rev M	Typical Nappy Change		17 November 2023
Drawing No 18 Rev M	Typical Craft Bench Detail		17 November 2023
Drawing No 19 Rev M	Typical Bottle Prep Detail		17 November 2023
Drawing No 20 Rev M	Schedules of Finishes		17 November 2023
Drawing No 21 Rev M	Calculation Plan – Ground Floor Play Area		17 November 2023
Drawing No 22 Rev M	Calculation Plan – First Floor Play Area		17 November 2023
Drawing No 23 Rev M	Calculation Plan – 0-2 Indoor Play Area		17 November 2023
Drawing No 24 Rev M	Calculation Plan – 2-3 Indoor Play Area		17 November 2023
Drawing No 25 Rev M	Calculation Plan – 3-5 Indoor Play Area		17 November 2023
Drawing No 26 Rev M	Solar Study Plan – Ground Floor		17 November 2023
Drawing No 27 Rev M	Solar Study Plan – First Floor		17 November 2023
Drawing No 28 Rev M	Fencing Details – Ground Floor		17 November 2023
Drawing No 29 Rev M	Fencing Details – First Floor		17 November 2023
Drawing No 30 Rev M	3D Perspective		17 November 2023
Drawing No 31 Rev M	Streetscape Elevation		17 November 2023
Drawing No 32 Rev M	Accessible Details – Basement Floor		17 November 2023
Drawing No 33 Rev M	Accessible Details – Ground Floor		17 November 2023
Drawing No 34 Rev M	Accessible Details – First Floor		17 November 2023
Drawing No 35 Rev M	Solar Access Plans 01 – Ground Floor		17 November 2023
Drawing No 36 Rev M	Solar Access Plans 02 – Ground Floor		17 November 2023
Drawing No 37 Rev M	Solar Access Plans 03 – Ground Floor		17 November 2023
Drawing No 38 Rev M	Access Plan	17 November 2023
Rev G	Evacuation Plan	Undated
Landscape Plans
Drawing No L-01 Issue D	Landscape Concept	Outside In Design Group	11 September 2023
Drawing No L-02 Issue D	3D CGI Renders		11 September 2023
Drawing No L-03 Issue D	Elevation		11 September 2023
Reports
Plan of Management (Version 3)		Think Planners	26 September 2023

Orders:

26. The Court orders:

1. The Appeal is upheld.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. Development Application No: DA-253/2023, for alterations and additions to the approved childcare centre approved under Development Consent No. DA-651/2022 to increase capacity by 10 children to a total of 120 children and provide an additional 3 car spaces at 22-24 Thompson Avenue, Moorebank, is determined by way of grant of consent, subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

199527.23 Annexure A

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Decision last updated: 05 December 2023