Townson Property Pty Ltd v Campbelltown City Council

[2023] NSWLEC 1693

Land and Environment Court

New South Wales

Medium Neutral Citation:

Townson Property Pty Ltd v Campbelltown City Council [2023] NSWLEC 1693

Hearing dates:

Conciliation conference on 25 August and 3 October 2023

Date of orders:

17 November 2023

Decision date:

17 November 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application as agreed or assessed.

(2) The appeal is upheld.

(3) Development application 243/2023/DA-C, as amended, for the construction of a new two storey centre-based child care facility accommodating 122 children including 31 at-grade parking and removal of trees on the land at 87 Townson Avenue, Minto is determined by the grant of development consent subject to the conditions in the annexure marked A.

Catchwords:

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

Legislation Cited:

Education and Care Services National Regulations 2011

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

Land and Environment Court Act 1979, s 34

Campbelltown Local Environmental Plan 2015, cll 4.3, 4.4, 7.1, 7.4

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

State Environmental Planning Policy (Industry and Employment) 2021, ss 3.1, Sch 5

Standard Instrument (Local Environmental Plans) Order 2006

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.26, Pt 3.3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.10

Environmental Planning and Assessment Regulation 2021, s 38

Texts Cited:

Department of Planning, Industry and Environment, NSW Childcare Planning Guideline, September 2021

Category:

Principal judgment

Parties:

Townson Property Pty Ltd (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Bartier Perry (Respondent)

File Number(s):

2023/84456

Publication restriction:

Nil

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 Campbelltown City Council of Development Application No 243/2023/DA-C seeking consent for a centre-based child-care facility for 122 children including 31 at-grade parking spaces and removal of trees on Lot 1 in Deposited Plan 1267069 also known as 87 Townson Road, Minto.

2. On 25 August 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided.

3. At the conciliation conference, the parties reached in-principle agreement on the matters in contention, subject to the resolution of certain issues which the parties’ advised me were capable of resolution. I adjourned the conference to allow the parties to continue to resolve those matters.

4. On 3 October and 20 October 2023, I further adjourned the conciliation conference to permit the parties to finalise the terms of the agreement that was filed with the Court on 27 October 2023, in accordance with s 34(10) of the LEC Act. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

5. 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.

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. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

8. The site is located within the R2 Low Density Residential zone according to the Campbelltown Local Environmental Plan 2015 (CLEP), in which development for the purposes of centre-based childcare facilities is permissible with development consent, where consistent with the following objectives of the R2 zone:

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

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

•  To enable development for purposes other than residential only if that development is compatible with the character of the living area and is of a domestic scale.

•  To minimise overshadowing and ensure a desired level of solar access to all properties.

•  To facilitate diverse and sustainable means of access and movement.

9. The proposed development complies with the height of building standard at cl 4.3 of the CLEP, and with the floor space ratio standard at cl 4.4 of the CLEP.

10. The site is not identified as an item of heritage significance and is not located within a heritage conservation area.

11. Having regard to the ‘Cut and Fill Management Plan’ at DA-107, I have considered those matters at cl 7.1(3) of the CLEP that must be considered. I consider the earthworks to be acceptable.

12. The development application as amended is supported by a Salinity Investigation and Management Plan prepared by Aargus dated 19 October 2023 (Salinity Report) that concludes the soils likely to be disturbed by earthworks are likely to be non saline. Conditions of consent require recommendations contained in the Salinity Report to be implemented. On this basis, I am satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact in accordance with cl 7.4(3)(a) of the CLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 precludes the grant of development consent unless the consent authority, or the Court on appeal, has considered whether the Site is contaminated. Section 4.6(2) requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned, if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4).

14. A Detailed Site Investigation dated 13 September 2023, and Remediation Action Plan, dated 14 September 2023, both prepared by Aargus, accompanies the development application. Together, the reports conclude that the risk of contamination is low, and that, nevertheless, the Court can be satisfied the site can be made suitable subject to provisions incorporated in the agreed conditions of consent.

State Environmental Planning Policy (Industry and Employment) 2021

15. The proposed development seeks consent for business identification signage pursuant to the relevant sections at Ch 3 of State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP).

16. The Industry SEPP adopts the definition of business identification sign found in the Standard Instrument (Local Environmental Plans) Order 2006 that is in the following terms:

business identification sign means a sign—

(a)  that indicates—

(i)  the name of the person or business, and

(ii)  the nature of the business carried on by the person at the premises or place at which the sign is displayed, and

(b)  that may include the address of the premises or place and a logo or other symbol that identifies the business,

but that does not contain any advertising relating to a person who does not carry on business at the premises or place.

17. The grant of consent is precluded unless the consent authority, or the Court on appeal, is satisfied that the signage is consistent with objectives set out at s 3.1(1)(a) of the Industry SEPP, and with the assessment criteria at Sch 5 of the Industry SEPP.

18. On the basis of the Addendum Statement of Environmental Effects prepared by Navon Planning dated 24 August 2023, I accept that the signage, which measures 3.3m wide x 0.28m high, is affixed to a low wall of face brick, and is not proposed to be illuminated, is compatible with the desired amenity and visual character of the area, provides effective communication and is of sufficiently high quality and finish to satisfy the objectives at s 3.1(1)(a) of the Industry SEPP.

19. I also accept that the proposed signage is consistent with similar signage in the immediate area, including signage at a nearby school and church, but does not detract from any special area, obscure or compromise important views or vista.

20. Likewise, I accept the proposed signage is of an appropriate proportion and form, will positively contribute to the streetscape by identifying the use of the building that is clearly a non-residential use, and respects the features of the site by its modest scale.

21. As such, I am also satisfied that the signage satisfies the assessment criteria specified in Sch 5 of the Industry SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

22. As the proposed development is a centre-based child care facility, Pt 3.3 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP) applies to the DA.

23. The unencumbered indoor and outdoor space complies with the requirement at s 3.22 of the Infrastructure SEPP for the relevant area, expressed in m², for each child, in accordance with the Education and Care Services National Regulations.

24. I accept that consideration has been given to the NSW Childcare Planning Guideline dated September 2021 (the ‘Guideline’), in accordance with s 3.23 of the Infrastructure SEPP, including but not limited to the internal solar amenity consistent with section 4.11 of the Guideline.

25. I also accept that the relevant non-discretionary development standards at s 3.26 of the Infrastructure SEPP are satisfied, noting that the site is not a heritage item, and is not located within a heritage conservation area, and so the development may be of any colour or colour scheme.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

26. The site is located within the Georges River Catchment area, and so the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) apply.

27. I have considered those matters required to be considered at s 6.6(1) of the Biodiversity and Conservation SEPP. On the basis of the Water Cycle Management Plan prepared by MBR Consulting Engineers dated 14 September 2023 (Water Cycle Plan), and the Stormwater Concept Plans by the same author dated 14 September 2023, I am satisfied the development ensures the effect on the quality of water entering public waterways will be as close as possible to neutral or beneficial, and the impact on water flow will be minimised, pursuant to s 6.6 of the Biodiversity and Conservation SEPP.

28. In considering those matters at s 6.7(1) of the Biodiversity and Conservation SEPP as are relevant to the proposed development, I am satisfied, pursuant to s 6.7(2), that the direct, indirect or cumulative impact on certain animals or vegetation will be kept to a minimum when carrying out the development, that it will not have an adverse impact on aquatic reserves and that erosion and sedimentation will be minimised.

29. I note section 2.2 of the Water Cycle Plan cited at [27] deals with the post-development discharge flow rates from the site for all storm events, ranging from the 20% Annual Exceedance Probability (AEP) to 1% AEP. Section 2.3 of the Water Cycle Plan deals with Water Quality and includes reference to OceanGuard filtration within stormwater pits, and a stormwater filter system comprising cartridge filtration within the on site detention structure. On this basis I am also satisfied the development will not release pollutants that would have an adverse impact on water quality in a watercourse and would not have an adverse impact on flood waters in riverine ecosystems, pursuant to s 6.8(2) of the Biodiversity and Conservation SEPP.

30. I have considered the likely impact of the proposal on recreational land uses in the Georges River catchment, and whether the proposal will maintain or improve public access to certain foreshores without imposing an adverse impact, in accordance with s 6.9 of the Biodiversity and Conservation SEPP. I am satisfied that the site is sufficiently distant from recreational land uses that it will maintain the public access currently afforded in a manner consistent with s 6.9(2)(a), being the sole relevant provision about which satisfaction is required.

31. As I have formed an opinion of satisfaction in respect of those matters at ss 6.6, 6.7, 6.8 and 6.9, I conclude the proposal is not likely to impose an adverse impact on downstream local government areas, and so consultation of a kind required by s 6.10 of the Biodiversity and Conservation SEPP is not required.

Conclusion

32. 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.

33. 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.

34. The Court notes that:

1. The Court notes Campbelltown City Council as the relevant consent authority has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending development application 243/2023/DA-C to rely upon the following amended plans and documents (Amended Development Application):

Plan Detail	Job Number	Prepared by	Date
Existing & Demo Site Plan, Drawing No. DA-101, Revision E	21029	Five Canons	29/08/2023
Proposed Site Plan, Drawing No. DA-102, Revision E	21029	Five Canons	29/08/2023
Cut and Fill Management Plan, Drawing No. DA-107, Revision E	21029	Five Canons	29/08/2023
Ground Floor Plan, Drawing No. DA-202, Revision E	21029	Five Canons	29/08/2023
Level 1 Plan, Drawing No. DA-210, Revision E	21029	Five Canons	29/08/2023
Roof Plan, Drawing No. DA-219, Revision E	21029	Five Canons	29/08/2023
Elevations/Finishes, Drawing No. DA-300, Revision E	21029	Five Canons	29/08/2023
Sections, Drawing No. DA-400, Revision E	21029	Five Canons	29/08/2023
Cover Sheet, Notes & Drawing Index, Drawing No. 000, Revision D	22162	MBR Consulting Engineers	14/09/2023
Stormwater Concept Plan Roof, Drawing No. 101, Revision D	22162	MBR Consulting Engineers	14/09/2023
Stormwater Concept Plan Level 1, Drawing No. 102, Revision D	22162	MBR Consulting Engineers	14/09/2023
Stormwater Concept Plan Ground, Drawing No. 103, Revision D	22162	MBR Consulting Engineers	14/09/2023
Sediment & Erosion Control Plan, Drawing No. 104, Revision D	22162	MBR Consulting Engineers	14/09/2023
OSD, WSUD & RWT Details & Calculation Sheets 1-4, Drawings 105-108, Revision D	22162	MBR Consulting Engineers	14/09/2023
Miscellaneous Details Sheet, Drawing No. 109, Revision D	22162	MBR Consulting Engineers	14/09/2023
Proposed Cover Sheet, Drawing No. L/00, Revision A	N/A	A Total concept Landscape Architects & Swimming Pool Designers	29/11/2022
Proposed Site Plan, Drawing No. L/01, Revision A	N/A	A Total concept Landscape Architects & Swimming Pool Designers	29/11/2022
Proposed Planting Plan, Drawing No. L/02, Revision A	N/A	A Total concept Landscape Architects & Swimming Pool Designers	29/11/2022
Proposed Landscape Plan – Level 1, Drawing No. L/03, Revision A	N/A	A Total concept Landscape Architects & Swimming Pool Designers	29/11/2022
Concept Materials Board, Drawing No. L/04, Revision A	N/A	A Total concept Landscape Architects & Swimming Pool Designers	29/11/2022

Document	Prepared By	Date
Operational Plan of Management	No author	August 2023
Water Cycle Management Plan, Report MBD22162, Issue B	MBR Consulting Engineers	14/09/2023
Remediation Action Plan Document Number: ES9083/2	Aargus	14/09/2023
Detailed site investigation Document REF ES9083	Aargus	13/09/2023
Salinity Investigation & Management Plan E9038/3	Aargus	19/10/2023
Arboricultural impact appraisal	Naturally trees	23/11/2022

2. The Amended Development Application was filed with the Court on 26 October 2023.

Orders

35. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Application as agreed or assessed.

2. The appeal is upheld.

3. Development application 243/2023/DA-C, as amended, for the construction of a new two storey centre-based child care facility accommodating 122 children including 31 at-grade parking and removal of trees on the land at 87 Townson Avenue, Minto is determined by the grant of development consent subject to the conditions in the annexure marked A.

T Horton

Commissioner of the Court

Annexure A

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Decision last updated: 17 November 2023