Virtue Holdings 888 Pty Ltd v Cumberland City Council

[2022] NSWLEC 1699

Land and Environment Court

New South Wales

Medium Neutral Citation:

Virtue Holdings 888 Pty Ltd v Cumberland City Council [2022] NSWLEC 1699

Hearing dates:

Conciliation Conference 18 November and 8 December 2022

Date of orders:

15 December 2022

Decision date:

15 December 2022

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 under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $1,300 within 28 days of judgment being delivered.

(3) Development consent is granted to Development Application No. DA2022/0312 for the demolition of existing structures and the construction of a centre-based child care with ancillary training rooms at Lots 18 and 19, Sec 2 in DP 5121, 35-37 Pegler Avenue, South Granville, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – demolition – child care centre – orders

Legislation Cited:

Cumberland Local Environmental Plan 2021, cll 2.7, 4.3, 4.4, 5.1, 5.1A, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.9, 6.10, 6.14, 6.16, Sch 5

Education and Care Services National Regulations, regs 107, 108

Environmental Planning and Assessment Act 1979, ss 4.15, 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 (Transport and Infrastructure) 2021, Ch 3

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

Sydney Environmental Planning Policy (Biodiversity and Conservation) 2021

Texts Cited:

NSW Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

NSW Government, Floodplain Development Manual, April 2005

Category:

Principal judgment

Parties:

Virtue Holdings 888 Pty Ltd
ACN 625481281(Applicant)
Cumberland City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
C McFadzean (Solicitor)(Respondent)

Solicitors:
Cumberland City Council (Respondent)

File Number(s):

2022/233290

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 No. DA2022/0312 for the demolition of existing structures and the construction of a centre-based child care with ancillary training rooms (the Proposed Development) at 35-37 Pegler Avenue, South Granville legally described as Lots 18 and 19, Sec 2 in DP 5121 (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 18 November and 8 December 2022. I have 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 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.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of various environmental planning instruments set out below.

6. The parties explained how the jurisdictional prerequisites have been satisfied in a written Note of Jurisdictional Prerequisite which I now summarise.

7. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) contains provisions relating to educational establishments and child care facilities and the Proposed Development is defined as a centre-based child care facility (s.3.3, Transport and Infrastructure SEPP).

8. The amended development complies with regulations 107 and 108 of the Education and Care Services National Regulations with respect to indoor and outdoor unencumbered space. As such, concurrence from the Secretary of the Department of Education is not required (s.3.22 Transport and Infrastructure SEPP).

9. Consistent with s 3.23 of the Transport and Infrastructure SEPP, the applicable provisions of the Child Care Planning Guideline approved by the Planning Secretary and published in the Gazette on 1 October 2021 need to be considered before determining the Development Application. The concerns with non compliance which were raised by the Respondent in the Statement of Facts and Contentions and have been addressed by the amended plans listed in the Notations below.

10. The Proposed Development complies with the non-discretionary development standards set out in s 3.26 of the Transport and Infrastructure SEPP which are as follows:

“(a)   location relative to another early education and care facility;

(b)(i)   indoor and outdoor unencumbered space;

(b)(ii)   indoor and outdoor unencumbered space under the  Children (Education and Care Services) Supplementary Provisions Regulation 2012;

(c)   site area and site dimensions; and

(d)   colour of building materials or shade structures.”

11. The consent authority is not entitled to take those standards into further consideration, or, refuse the application on those grounds or impose conditions of consent to the effect of those standards (s 4.15(2), EPA Act).

12. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) nominates matters relating to contamination of land that must be considered before a development application is determined. By reference to s.4.6(4), I am satisfied that:

1. the Site is not with an investigation area;

2. the Site does not contain and is not previously known to have contained development for a purpose referred to in Table 1 to the contaminated land planning guidelines; and

3. sufficient knowledge or the previous residential (and lack of Table 1 use of the land) exists.

13. Having regard to the above, s.4.6(2) of the Resilience and Hazards SEPP does not oblige the provision of a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines. Notwithstanding, s.4.6(1) provides that a consent authority must not consent to the carrying out of development unless:

“(a)    it has considered whether the land is contaminated, and

(b)     if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)     if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.”

14. A preliminary site investigation report was filed with the Class 1 Application. The report did not identify any contaminants that exceeded guideline limits for samples. The report concluded that the Site is suitable for the Proposed Development provided report recommendations going to a hazardous materials survey, an asbestos clearance certificate, demolition, soil classification and an unexpected finds protocol were incorporated. These matters are satisfactorily addressed by condition numbers 12, 13, 18 and 107 in Annexure A.

15. The Site in not mapped as being within a Foreshores and Waterways Area, a strategic foreshore site, or a wetland protection area, nor is it shown as containing a heritage item (Sydney Environmental Planning Policy (Biodiversity and Conservation) 2021).

16. The Site is zoned R4 High Density Residential pursuant to the Cumberland Local Environmental Plan 2021 (CLEP) and a centre-based child care facility is permitted within that zone with consent. Demolition is permitted with consent under cl 2.7 of the CLEP. The parties are satisfied that the use of the training rooms is ancillary to the centre-based child care facility.

17. Clause 4.3 of the CLEP provides for a maximum building height of 11m for 35 Pegler Avenue and 14m for 37 Pegler Avenue. The proposed building height is 9.8m on 35 Pegler Avenue and 11m on 37 Pegler Avenue.

18. Clause 4.4 of the CLEP provides for a maximum floor space ratio of 0.8:1 for 35 Pegler Avenue and 1.1:1 for 37 Pegler Avenue. The proposed FSR is 0:45:1 for 35 Pegler Avenue and 0.84:1 for 37 Pegler Avenue.

19. It is relevant to note that the Site is not marked on the following maps in the CLEP:

1. the Land Reservation Acquisition Map (cll 5.1 and 5.1A);

2. the Foreshore Building Line Map (cl 6.3);

3. the Biodiversity Map (cl 6.5);

4. the Riparian Lands and Watercourses Map (cl 6.6);

5. the Salinity Map (cl 6.9);

6. the Site Specific Provisions Map (cl 6.10);

7. the Design Excellence Map (cl 6.14); or

8. the Key Sites Map (cl 6.16).

20. The Site is in proximity to Item I239, being the Dellwood Shopping Centre which is listed under Sch 5 of the CLEP as an item of local significance. Clause 5.10(5) of the CLEP enables the consent authority, before granting consent to any development on land that is within the vicinity of a heritage item, to require a heritage management document to be prepared that assesses the extent to which the development would affect the heritage significance of the item. The Council does not press an adverse impact upon item I239 or for the preparation of a heritage management document.

21. Clause 5.21 of the CLEP draws upon the Floodplain Development Manual for the definition of a flood planning area. The Manual defines flood planning area to be an area of land below the flood planning level. The flood planning level is further defined to mean the combinations of flood levels (derived from significant flood events or floods of specific annual exceedance probability) and freeboards selected for floodplain risk management purposes. Council’s flood mapping does not identify the Site as being less than the flood planning area, subject to a probable maximum flood or as requiring a flood study. On that basis, development consent is not required under clause 5.21(2).

22. The Site is marked as class 5 land on the Acid Sulfate Soils Map in the CLEP and is approximately 450m from class 4 land. As no works are located below 5 metres AHD, consent is not required under cl 6.1(2) of the CLEP.

23. Development consent is required under cl 6.2 of the CLEP for the proposed basement excavation earthworks. In relation to the criteria listed in cl 6.2(3), the Council’s position is as follows:

“(a), (d)   Drainage and soil stability can be appropriately managed subject to provision of appropriate drainage infrastructure on site and noting the site’s ability to drain via a downstream easement to Council’s stormwater system.

(b)   The excavation is part of the proposed redevelopment of the site and will not of itself stymie the future use or redevelopment.

(c)   The quality of soil to be excavated of is de minimis importance and not of determinative weight.

(e)   Conditions of consent are imposed to ensure the use of clean fill and disposal of excavated material to an appropriate destination – see condition numbers 83 and 84.

(f)   the likelihood of disturbing relics is low, but safeguards can be implemented via conditions of consent to suspend work pending the unearthing of relics – see condition number 98.

(g), (h)   The site is not proximate to a waterway, drinking water catchment of environmentally sensitive area. The prospect of any adverse impacts on such areas can be managed by conditions, including the provision and maintenance of sediment and erosion control measures – see condition numbers 19 and 88.”

24. Clause 6.4 of the CLEP requires the consent authority to be satisfied of the availability of various essential services, or that adequate arrangements have been made to make available access to the essential services. I am satisfied that essential services are available or adequate arrangements have been made to make available water supply, electricity supply, the disposal and management of sewage, stormwater drainage and suitable road access.

25. Clause 6.7 of the CLEP provides stormwater management controls. In relation to considerations at clause 6.7(2) I note the following:

1. the extent of water permeable surfaces is within reasonable expectations, and

2. it is not practicable to have or condition on-site stormwater retention for use as an alternative supply to mains water, and

3. adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters may be adequately minimised and mitigated by way of conditions of consent, including conditions for the implementation of sediment and erosion control measures – see condition numbers 19 and 88.

26. The Proposed Development was notified from 8 to 22 July 2022. No submissions were received. The amended development was not renotified consistent with the Council’s practice not to do so where the amendments involve reduced environmental impacts.

27. 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 above in this judgment.

28. 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:

29. The Court notes that:

1. Cumberland Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. DA2022/0312 in accordance with the following amended plans and documents:

1. The following amended architectural plans prepared by Janssen Designs:

Reference / Dwg No	Title / Description	Date
A000, Issue C	Cover Page	18 November 2022
A003, Issue C	Demolition Plan
A004, Issue C	Lot Amalgamation Plan
A006, Issue D	Basement Plan	7 December 2022
A007, Issue C	Ground Floor Plan	18 November 2022
A008, Issue C	First Floor Plan
A009, Issue C	Second Floor Plan
A010, Issue C	West (Streetscape) & South Elevation
A011, Issue C	North & East Elevation
A012, Issue C	Sections & Acoustic Details
A017, Issue C	Cut and Fill Diagram
A020, Issue C	Emergency Evacuation Plan – Ground Floor
A021, Issue C	Emergency Evacuation Plan – First Floor
A022, Issue C	Kitchen Details
A023, Issue C	Signage Detail Plan
CF001, Issue C	Colour and Finishes Schedule
-	Plan of Management	22 November 2022
Report number 7398-1.1R Rev C	Environmental Noise Impact Assessment	22 November 2022
-	Waste Management Plan	17 June 2022

2. The following updated engineering plans prepared by Mance Arraj Engineering:

Reference / Dwg No	Title / Description	Date
SW010, Issue C	Stormwater Layout Drawing – Basement Level	22 November 2022
SW020, Issue C	Stormwater Layout Drawing – Ground Level
SW021, Issue B	Stormwater Layout Drawing – Ground Level (continued)
SW030, Issue C	Stormwater Layout Drawing – Roof Level and OSD Tank Plan and Section Details

3. The following updated engineering plans prepared by Conzept Landscape Architects:

Reference / Dwg No	Title / Description	Date
LPS34 22 – 346, Page 1, Revision H	Hardscape Plan (Ground floor)	23 November 2022
LPS34 22 – 346, Page 2, Revision H	Landscape Plan (Ground floor)
LPS34 22 – 346, Page 3, Revision H	Landscape Plan (Level 1)
LPS34 22 – 346, Page 4, Revision H	Details & Specification
LPS34 22 – 346, Page 5, Revision H	Details
LPS34 22 – 346, Page 6, Revision H	Details

4. Updated Plan of Management prepared by Holistic Management and Consultancy, dated 22 November 2022.

5. Updated Environmental Noise Impact Assessment prepared by Day design, Revision C, dated 22 November 2022.

6. Updated Waste Management Plan prepared by Builtex Developments, dated 17 June 2022.

2. The amended development application has been lodged onto the NSW planning portal on 8 December 2022.

3. The Applicant has filed the amended development application with the Court.

Orders:

30. The Court orders:

1. The appeal is upheld.

2. The applicant is to pay the respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $1,300 within 28 days of judgment being delivered.

3. Development consent is granted to Development Application No. DA2022/0312 for the demolition of existing structures and the construction of a centre-based child care with ancillary training rooms at Lots 18 and 19, Sec 2 in DP 5121, 35-37 Pegler Avenue, South Granville, subject to the conditions of consent in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (375005, pdf)

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Decision last updated: 15 December 2022