TIC Investments NSW Pty Ltd v Hornsby Shire Council

[2021] NSWLEC 1694

Land and Environment Court

New South Wales

Medium Neutral Citation:

TIC Investments NSW Pty Ltd v Hornsby Shire Council [2021] NSWLEC 1694

Hearing dates:

25 August 2021

Date of orders:

16 November 2021

Decision date:

16 November 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The orders of the Court are:

(1) The Applicant is to pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning & Assessment Act 1979 as agreed in the sum of one dollar ($1.00).

(2) The appeal is upheld.

(3) Consent is granted to Development Application 259/2020 for construction of a purpose-built addition to a dwelling house and change of use to a 70-place childcare centre with an at grade and basement carpark and associated landscaping at 181-183 Beecroft Road, Cheltenham, subject to the conditions set out in Annexure A.

(4) The exhibits are returned, except for 1 and 3.

Catchwords:

DEVELOPMENT APPLICATION – childcare centre – alterations and additions – heritage – consent orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2000 cl 55

Hornsby Local Environmental Plan 2013, cll 5.10, 6.2

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017

Texts Cited:

Hornsby Development Control Plan 2013

Land and Environment Court, COVID-19 Pandemic Arrangements Policy (April 2021)

Practice Note – Class 1 Development Appeals, Land and Environment Court of New South Wales (2018)

Category:

Principal judgment

Parties:

TIC Investments NSW Pty Ltd (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
P O’Brien (Solicitor) (Applicant)
T Pickup (Solicitor) (Respondent)

Solicitors:
O’Brien Legal (Applicant)
Local Government Legal (Respondent)

File Number(s):

2021/30048

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA 259/2020 (the application) by Hornsby Shire Council (the Respondent). The application sought consent for alterations and additions to the existing dwelling and change of use to a 70-place childcare centre with basement car park and associated landscaping at 181-183 Beecroft Road, Cheltenham (the site).

2. In accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act), the appeal was subject to conciliation before me on 11 and 18 June, and 9 and 26 July 2021.

3. As agreement between the parties was not reached, the conciliation conference was terminated, and subsequently - pursuant to s 34(4)(b) of the LEC Act - the parties consented to me disposing of the proceedings at hearing on the basis of what occurred at the conciliation conference.

4. Prior to the date of the hearing, the Respondent agreed to the Applicant amending the Development Application, and the final amended proposal was re-notified to adjoining and nearby landowners in accordance with the Respondent's community participation policy.

5. Additionally, the experts each appointed by the Applicant and Respondent agreed that the Development Application - as amended - now satisfactorily resolves the contentions previously raised by the Respondent.

6. Consequently, on 11 August 2021, the parties filed terms of orders sought by consent with the Court. On this basis, the primary purpose of the hearing is to allow the Court to determine whether it is lawful and appropriate to grant consent having regard to the whole of the relevant circumstances, including the proposed conditions. The Court publishes a relevant practice note, which is referred to later in this judgment.

7. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the hearing was conducted by Microsoft Teams.

8. Upon commencement of the hearing by MS Teams, the Court benefited from oral submissions being made by a number of concerned residents, and I was able to better appreciate their substantive concerns for heritage compatibility, parking and traffic safety, excavation and construction impacts, bulk and scale, potential tree loss, and site servicing and waste management amongst other issues.

The site and its context

9. The site is located on the north eastern intersection of Beecroft Road and Cheltenham Road. It is generally regular in shape with a frontage of 61.98m to Beecroft Road and 61.875m to Cheltenham Road.

10. The site comprises four existing allotments with a total area of 4,099.74sqm and contains a single-storey Inter-War period house set in well-landscaped gardens with a tennis court to the west. The garden at 183 Beecroft Road is a listed heritage item.

11. The surrounding areas of Cheltenham are generally characterised by single-storey residential land uses with well-established domestic gardens and mature streetscape trees.

12. To the west of the site a recently adaptively re-used heritage church functioning as a 60-place childcare centre is located at 179 Beecroft Road.

13. The subject site is situated within a designated heritage conservation area and in reasonably close proximity to a series of listed heritage items, including the adjacent church building, a number of gardens and dwellings.

14. Lot sizes in the vicinity are typically larger and in the order of approximately 1,000sqm contributing to the lower density character and presence of substantial trees and vegetation both within the public and private domains.

The planning framework

15. The site is zoned R2 Low Density Residential under the Hornsby Local Environmental Plan 2013 (HLEP) and centre-based childcare facilities are permissible with consent.

16. Also relevant to the Development Application are cll 5.10 - Heritage Conservation and 6.2 - Earthworks within the HLEP.

17. As noted earlier, a portion of the Site (183 Beecroft Road, Cheltenham) is listed as a heritage item (Item 267 - Garden) under the provisions of Schedule 5 (Environmental Heritage) of the HLEP.

18. Additionally, the Site is located within the Beecroft-Cheltenham Heritage Conservation Area under the provisions of Schedule 5 (Environmental Heritage) of the HLEP.

19. The proposal is subject to State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017 (SEPP Childcare), and additionally to the Children (Education and Care Services) Supplementary Provisions Regulation 2019.

20. The site is subject to State Environmental Planning Policy (Vegetation in Non- Rural Areas) 2017.

21. The site is subject to State Environmental Planning Policy (Infrastructure) 2007.

22. The site is subject to State Environmental Planning Policy No. 55 Remediation of Land.

23. The site is subject to Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.

The issues

24. The contentions set out by the Respondent can be found in the Amended Statement of Facts and Contentions forming Exhibit 1 in these proceedings.

25. The contentions that the Development Application be refused can be summarised as follows:

1. Detrimental heritage impacts upon the listed item at the subject site and upon listed heritage items in the vicinity.

2. Failure to comply with SEPP Childcare.

3. Failure to comply with certain prescriptive measures of the Hornsby Development Control Plan 2013 (HDCP).

4. Character and streetscape impacts.

5. Noise and acoustic impacts.

6. The proposal not being in the public interest.

26. Additionally, at Exhibit 1, the Respondent has further set out certain contentions that may be resolved by conditions of consent, and certain contentions where there is insufficient information to assess the Development Application, as follows:

1. Conditions of consent - traffic.

2. Conditions of consent - landscaping, removal and replacement of trees.

3. Insufficient information - waste management.

4. Insufficient information - landscaping.

5. Insufficient information - earthworks.

6. Insufficient information - heritage.

7. Insufficient information - demolition management plan.

8. Insufficient information - construction management plan.

27. As noted earlier in this judgment, on 10 August 2021 the parties filed with the Court the terms of orders sought by consent. Additionally, the parties' experts are agreed that the amended Development Application (forming Exhibit A in these proceedings) now satisfactorily resolves the Respondent's contentions as set out in the Amended Statement of Facts and Contentions (forming Exhibit 1 in these proceedings).

Orders by consent

28. In considering the terms of orders sought by consent of the parties, the Court's Practice Note - Class 1 Development Appeals, provides at [99] that:

"Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary."

Submissions

29. In submissions to the Court, counsel for the Respondent addressed the manner by which the final amended proposal satisfactorily resolves the various live contentions.

30. The independent heritage experts in this matter are Mr John Oultram for the Respondent and Mr Graham Brooks for the Applicant. It is submitted by the Respondent that Mr Oultram has formed a view that the amended Development Application now resolves the heritage contentions.

31. Fundamental to the resolution of the heritage contention are amendments made to the design of the driveway, the rearrangement of the proposed parking configuration, and the preservation of the heritage listed garden including its entry gates and pillars.

32. Additionally, agreed conditions of consent serve to protect significant trees on and near the subject site, which in turn contribute to the conservation of the heritage significance of the listed garden.

33. It is next submitted that all relevant controls of the HLEP and HDCP are met by the amended Development Application.

34. It is submitted that contentions raised regarding acoustics are now resolved by the introduction of privacy screens and the relocation of waste bins.

35. Similarly, contentions regarding the failure to comply with SEPP Childcare, which in turn relate primarily to heritage and streetscape contentions, cited previously, are now satisfactorily resolved by the amended Development Application.

36. Agreed conditions of consent satisfactorily resolve contentions regarding traffic management and construction management.

37. Contentions regarding tree loss and waste management have been further addressed by agreed conditions of consent.

38. Additionally, counsel for the Applicant submitted that concerns raised by the immediate affected neighbour have been resolved by improved landscape design along the site boundary, and improved separation.

Findings

39. Consistent with the terms of orders sought by the consent of the parties, and in moving to grant consent to the amended Development Application, I am satisfied the final amended proposal does address and satisfactorily resolve the Respondent's contentions.

40. I am satisfied that re-notification of the amended Development Application has occurred appropriately and that four resident submissions were received by the Respondent during the re-notification period.

41. I am satisfied that matters raised in these four submissions have been appropriately considered and addressed in the final amended proposal and agreed conditions of consent. These matters include parking and traffic safety, excavation and construction impacts, potential tree loss, and site servicing and waste management.

42. I accept the parties' submissions, and I am satisfied that the amended Development Application now conforms with the relevant statutory planning controls set out in the HLEP, specifically those at cl 5.10 - Heritage Conservation and cl 6.2 - Earthworks.

43. I accept the parties' submissions, and am satisfied that the amended Development Application is permissible with consent and meets the HLEP zone objectives for the R2 Low Density Residential, which include, relevantly; "to enable other land uses that provide facilities or services to meet the day to day needs of residents".

44. I am satisfied the amended Development Application now conforms with SEPP Childcare since the particulars of the contention primarily related to streetscape compatibility, and because the design changes now resolve heritage and streetscape concerns.

45. Finally, I am satisfied the amended Development Application now conforms with the HDCP, since the design changes now address the requirements for development in a heritage conservation areas, and because it now resolves waste management concerns.

46. On the basis of the evidence before me, I am satisfied that the amended Development Application is now of an acceptable form, and that it is lawful and appropriate to grant development consent.

47. At the conclusion of the hearing I directed the parties to augment the agreed conditions of consent to eliminate any doubt regarding the protection of trees T1 and T2. These two trees happen to be situated on the neighbouring property and were not specifically referred to in the conditions of consent as initially drafted despite their intended protection.

48. I also directed the parties to revise the form of orders sought to reflect the Respondent's agreement to the Applicant amending the Development Application, and to effect lodgement of the amended Development Application on the NSW Planning Portal.

49. The parties filed final conditions of consent and final orders sought with the Court on 7 September 2021 at which time judgment was reserved.

50. I am satisfied these final conditions of consent and the form of final orders sought reflect the reasons set out in this judgment.

51. Accordingly, the Court notes that:

1. The Applicant has amended Development Application 259/2020, with the agreement of Hornsby Shire Council as the relevant consent authority pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000.

2. The amended Development Application was lodged on the NSW planning portal on 25 August 2021

3. The amended Development Application was filed with the Court on 20 August 2021.

Orders

52. The Court orders that:

1. The Applicant is to pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning & Assessment Act 1979 as agreed in the sum of one dollar ($1.00).

2. The appeal is upheld.

3. Consent is granted to Development Application 259/2020 for construction of a purpose-built addition to a dwelling house and change of use to a 70-place childcare centre with an at grade and basement carpark and associated landscaping at 181-183 Beecroft Road, Cheltenham, subject to the conditions set out in Annexure A.

4. The exhibits are returned, except for 1 and 3.

……………………….

M Pullinger

Acting Commissioner of the Court

Annexure A (368675, pdf)

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Decision last updated: 16 November 2021