Tom Simmat and Associates Pty Limited v The Hills Shire Council

[2020] NSWLEC 1322

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tom Simmat & Associates Pty Limited v The Hills Shire Council [2020] NSWLEC 1322

Hearing dates:

Conciliation conference on 8, 15 July 2020; Documents filed 17 July 2020

Date of orders:

24 July 2020

Decision date:

24 July 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

See orders at [9] below

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979

The Hills Local Environmental Plan 2019

Land and Environment Court Act 1979

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

State Environmental Planning Policy No 55—Remediation of Land

Category:

Principal judgment

Parties:

Tom Simmat & Associates Pty Limited (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
A Hudson (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/359830

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Respondent of a development application (130/2020/JP) for the construction of a two storey premises with basement carparking for use as a child care centre at 8-12 Poole Road, Kellyville (the site).

2. On 8 and 15 July 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to the Applicant to amend the development application, uphold the appeal and grant development consent to the development application subject to conditions.

4. An agreement pursuant to s 34 of the LEC Act was filed by the parties on 17 July 2020 giving effect to the agreement in principle.

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

6. The parties’ agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties have stated and I agree based on the material provided to the Court that the relevant jurisdictional prerequisites that are satisfied so this function can be exercised are:

1. The development does not contravene s 4.15(1)(a) of the EPA Act;

2. In relation to cl 7 of State Environmental Planning Policy No 55—Remediation of Land, the land on which the development is proposed to be carried out is not known to be contaminated and is not:

1. land that is within an investigation area; or

2. land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out.

3. In accordance with cl 23 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 the applicable provisions of the Child Care Planning Guideline, have been considered and taken into account in the determination of the development application and no concurrence requirement is activated by the application under cl 22 of the SEPP;

4. The development is for the purpose of a centre-based child care facility as defined in the Dictionary of The Hills Local Environmental Plan 2019 ("THLEP");

5. The land to which the development application relates is within Zone R3 Medium Density under the provisions of THLEP and development for the purpose of a centre-based child care facility is permitted with consent in the Land Use Table relating to that zone at the end of Part 2 of THLEP; and

6. The development does not contravene any development standards in THLEP or any other applicable environmental planning instrument.

7. 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.

8. The parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The Court orders:

1. Leave is granted to amend the application for development consent by relying the amended plans as follows:

1. Architectural Plans prepared by Tom Simmat & Associates Pty Ltd, as follows:

Plan No.	Drawing Name	Revision Issue	Date of Issue.
Cover Sheet Perspective	Sept 2019
1	Site Plan	C	19 Feb 2020
3	Site Plan-2	D	12 June 2020
4	Plan Entry Level 0-2 Children Play Areas	C	12 June 2020
5	Plan 3-4 and 4-5 Children Play Areas	D	12 June 2020
6	Staff Room, Basement Parking and 2-3 Childern Play Areas Staff Room Level	F	8 July 2020
7	Roof Plan	E	12 June 2020
8	North Elevation South Elevation	C	08 July 2020
9	East Elevation West Elevation	C	08 July 2020
10	Section A-A Section B-B	B	21 Sept 2019
11	Section C-C Section D-D	B	21 Sept 2019
12	Window Schedule-1	A	10 June 2019
13	Window Schedule-2	A	10 June 2019
14	Site Analysis Plan	A	10 June 2019
15	Shadow Diagrams in June 9am 21st June in Winter	A	10 June 2019
16	Shadow Diagrams in June 12:00 Noon 21st June in Winter	A	1 July 2019
17	Shadow Diagrams in June 3:00pm 21st June in Winter	A	1 July 2019
18A	Site Plan – Sediment Control Plan	A	1 July 2019
18B	Bottle Prep, Room Plan Detail Elevation A, B, C, D	B	11 Sept 2019
19	Kitchen Detail Plan Detail A, B	B	11 Sept 2019
20	Kitchen Detail Plan Detail C, D	B	11 Sept 2019

2. Landscape Plans prepared by John Chetham & Associates, as follows:

Plan No.	Drawing Name	Revision Issue	Date of Issue.
LP00	Landscape Plan - Overall Site	C	8 July 2020
LP01	Landscape and Play Area Plan 01	D	8 July 2020
LP02	Landscape and Play Area Plan 02	C	8 July 2020
LP03	Landscape and Play Area Plan 03	B	11 June 2020
LP04	Landscape Area Plan	B	11 June 2020

3. Hydraulic Services Stormwater Concept Plans prepared by Cova Thinking, as follows:

Plan No.	Drawing Name	Revision Issue	Date of Issue
482003-H01	Site Plan	E	12 June 2020
482003-H02	Carpark Level	D	7 July 2020

4. Plan showing details and levels prepared by Survey Plus, revision E, dated 30 March 2020.

2. The appeal is upheld.

3. Development consent is granted to development application 130/2020/JP for the construction of a two storey premises with basement carparking for use as a child care centre at 8-12 Poole Road, Kellyville subject to the conditions in Annexure A.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (348575, pdf)

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Decision last updated: 24 July 2020