Wang v The Hills Shire Council

[2025] NSWLEC 1053

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wang v The Hills Shire Council [2025] NSWLEC 1053

Hearing dates:

Conciliation Conference held 17 January 2025

Date of orders:

31 January 2025

Decision date:

31 January 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(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 consent is granted to development application DA 221/2024/HA, as amended, for the demolition of existing structures and construction of a two storey centre based child care facility for 82 children with basement parking for 27 vehicles and removal of 10 trees, subject to the conditions in the annexure marked "A”.

Catchwords:

DEVELOPMENT APPEAL – child care centre – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Regulation 2021, ss 23, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, CH 6, Pt 6.2, ss 6.6. 6.9, 6.10

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, s 3.23

The Hills Local Environmental Plan 2019, cll 2.7, 4.3, 4.4, 5.10, 5.21, 7.1

Texts Cited:

Department of Planning, Industry and Environment, Child care planning guideline, 2021

Category:

Principal judgment

Parties:

Zengxin Wang (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
A Sarkis (Solicitor) (Applicant)
R Bonic (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicant)
Hall and Wilcox (Respondent)

File Number(s):

2024/177805

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 221/2024/HA seeking consent for the demolition of existing structures and construction of a two storey centre based child care facility for 82 children with basement parking for 27 vehicles and removal of 10 trees (Proposed Development) at 12 Pearce Street, Baulkham Hills, legally described as Lot 3 in DP 592092. (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 17 January 2025. I have presided over the conciliation conference.

3. The parties’ experts agree that all the contentions raised in the Statement of Facts and Contentions filed 26 June 2024 (SOFAC) have been resolved by the preparation of:

1. Amended plans and documents referred to at [24]; and

2. Agreed Conditions of Consent.

4. 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.

5. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. 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 Ch 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) which provides standards and controls for education establishments and child care facilities. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the court.

8. The Applicant is the owner of the Site (s 23 of the Environmental Planning and Assessment Regulation 2021).

9. The Site is zoned R3 Medium Density Residential under The Hills Local Environmental Plan 2019 (THLEP). Development for the purposes of a centre-based childcare facility is permissible with consent in the R3 zone. Demolition is permissible with consent in accordance with cl 2.7 of THELP.

10. Compliance with THLEP it is addressed generally in the Statement of Environmental Effects prepared by Think Planners dated 31 July 2023 (SEE) filed with the Class 1 Application.

11. A maximum height of building (HOB) development standard of 9m for the Site is prescribed pursuant to cl 4.3 of THLEP and the Proposed Development complied with this development standard by proposing a HOB of 8.3m.

12. The Site is not subject to an FSR development standard under cl 4.4 of the LEP.

13. The parties have considered the effect of the Proposed Development on the heritage significance of a heritage item or heritage conservation area concerned as required by cl 5.10 of THLEP. The Site is not listed as a heritage item nor is it located within a heritage conservation area. There are heritage items within close proximity to the Site, however, there are no adverse impacts anticipated on these items, and it is further noted that their heritage significance is associated with the buildings themselves, as opposed to the streetscape.

14. The Site is not identified as being flood prone under cl 5.21 of THLEP and is not identified as being affected by Acid Sulfate Soil under cl 7.1 of THLEP.

15. The Court is satisfied that there has been appropriate and relevant consideration as to whether the Site is contaminated, and if it is, that it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use as a child care facility as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The Applicant relies on a Preliminary Site Investigation of the Site (PSI), prepared by Capital Engineering Consultants Geotechnical (CEC Geotechnical) dated 8 May 2023 filed with the Class 1 Application. This PSI concludes that as no risk of contamination associated with market gardening was identified on the Site and as there were no heavy industrial operations identified with the Site, the Site is suitable for the Proposed Development, subject to the implementation of recommendations including removal of material offsite. These recommendations are incorporated into the agreed conditions of consent.

16. Chapter 3 of the Transport and Infrastructure SEPP provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across the State.

17. The parties have taken into consideration the applicable provisions of the Child Care Planning Guideline as required by s 3.23 of the Transport and Infrastructure SEPP. Compliance with the Transport and Infrastructure SEPP is addressed at pages 27 to 32 of the SEE and I note that the Proposed Development proposes:

1. unencumbered indoor play area of 280m² which complies with the requirements of the Education and Care Service National Regulations, which requires 3.25m² per child (266.5m²) of unencumbered indoor play space; and

2. unencumbered outdoor play area of 589m² which will provide more than the required 7m² of unencumbered outdoor play area per child (574m²), in compliance with Education and Care Service National Regulations.

18. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) aims to protect the environment of the Sydney Harbour water systems, and certain divisions apply, noting the Site is located with the Sydney Harbour Catchment.

19. Part 6.2 of the Biodiversity and Conservation SEPP provides jurisdictional prerequisites to the grant of consent to development in a regulated catchment, which are set out in ss 6.6 and 6.9, including whether the development will have a neutral or beneficial effect on the quality of water entering a waterway, and whether the development will increase the amount of stormwater run-off from the Site. The development does not detract from the principles given the nature of the development, environmental safeguards proposed, including detailed drainage concepts and erosion and sediment controls incorporated into the conditions of consent.

20. As the development is not likely to have an adverse impact on land in any adjacent or downstream local government areas, the Council is not required to consult with other Council’s in accordance with s 6.10 of the Biodiversity and Conservation SEPP.

21. Council has considered the development and agrees that the Court can be satisfied that the jurisdictional prerequisites of the Biodiversity and Conservation SEPP are satisfied.

22. 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.

23. 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

24. The Court notes:

1. The Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No DA 221/2024/HA in accordance with the following amended plans (Amended Development Application) which were filed with the Court on 13 December 2024:

No	Document	Ref No.			Prepared by	Rev	Date
1.	Architectural Plans
	Compliance Table Location Plan	01			Baini Design	C	15 Oct 2024
	Location Analysis Plan	02			Baini Design	C	15 Oct 2024
	Site Analysis Plan	03			Baini Design	C	15 Oct 2024
	Shadow Diagrams	04			Baini Design	C	15 Oct 2024
	Shadow Diagrams	05			Baini Design	C	15 Oct 2024
	Shadow Diagrams	06			Baini Design	C	15 Oct 2024
	Shadow Diagrams	07			Baini Design	C	15 Oct 2024
	Site Plan	08			Baini Design	C	15 Oct 2024
	Demolition Plan	09			Baini Design	C	15 Oct 2024
	Basement Floor Plan	10			Baini Design	C	15 Oct 2024
	Ground Floor Plan	11			Baini Design	C	15 Oct 2024
	First Floor Plan	12			Baini Design	C	15 Oct 2024
	Roof Plan	13			Baini Design	C	15 Oct 2024
	Elevations	14			Baini Design	C	15 Oct 2024
	Sections	15			Baini Design	C	15 Oct 2024
	Sections	16			Baini Design	C	15 Oct 2024
	Schedule of Finishes	17			Baini Design	C	15 Oct 2024
	Kitchen & Laundry Details	18			Baini Design	C	15 Oct 2024
	Typical Nappy Change	19			Baini Design	C	15 Oct 2024
	Typical Bottle Prep Detail	20			Baini Design	C	15 Oct 2024
	Typical Craft Bench Detail	21			Baini Design	C	15 Oct 2024
	Calc. Gross Floor Area – Ground Floor	22			Baini Design	C	15 Oct 2024
	Calc. Gross Floor Area – First Floor	23			Baini Design	C	15 Oct 2024
	Calc. Outdoor Play Area – Ground Floor	24			Baini Design	C	15 Oct 2024
	Calc. Outdoor Play Area – First Floor	25			Baini Design	C	15 Oct 2024
	Solar Access Plan – 12pm	26			Baini Design	C	15 Oct 2024
	Solar Access Plan – 1pm	27			Baini Design	C	15 Oct 2024
	Solar Access Plan – 2pm	28			Baini Design	C	15 Oct 2024
	Indoor Calc. Plan – 0-2	29			Baini Design	C	15 Oct 2024
	Indoor Calc. Plan –2-3	30			Baini Design	C	15 Oct 2024
	Indoor Calc. Plan – 3-5	31			Baini Design	C	15 Oct 2024
	Fencing Detail – Ground Floor	32			Baini Design	C	15 Oct 2024
	Fencing Detail – First Floor	33			Baini Design	C	15 Oct 2024
	3D Perspectives	34			Baini Design	C	15 Oct 2024
	Streetscape Elevation	35			Baini Design	C	15 Oct 2024
	Accessible Details – Basement Floor	36			Baini Design	C	15 Oct 2024
	Accessible Details – Ground Floor	37			Baini Design	C	15 Oct 2024
	Accessible Details – First Floor	38			Baini Design	C	15 Oct 2024
40.	Landscape Plans
	Landscape Plan 1	ONE/TWO			iScape Landscape Architecture	B	4 Nov 2024
	Landscape Plan 2	TWO/TWO			iScape Landscape Architecture	B	4 Nov 2024
43.	Stormwater Plans
	Stormwater Layout Plan Cover Sheet	SW001			Capital Engineering Consultants (CEC)	D	20 Nov 2024
	Stormwater Layout Plan Basement Floor Plan, Notes & Details	SW010			CEC	D	20 Nov 2024
	Stormwater Layout Plan Ground Floor Plan, Notes & Details	SW020			CEC	D	20 Nov 2024
	Stormwater Layout Plan On-Site Detention Tank Sections & Details	SW021			CEC	D	20 Nov 2024
	Stormwater Layout Plan On-Site Detention Tank Sections & Details	SW022			CEC	D	20 Nov 2024
	Stormwater Layout Plan On-Site Detention Tank Sections & Details	SW023			CEC	D	20 Nov 2024
	Stormwater Layout Plan Cut and Fill Plan	SW024			CEC	D	20 Nov 2024
	Stormwater Layout Plan Erosion & Sediment Control Plan, Notes & Details	ER001			CEC	D	20 Nov 2024
50.	Driveway Longsections
	Driveway Longitudinal Section Plan – Southern Edge Vehicle Entering		1/4		Hemanote Consultants	-	29 Oct 2024
	Driveway Longitudinal Section Plan – Northern Edge Vehicle Exiting		2/4		Hemanote Consultants	-	29 Oct 2024
	Driveway Longitudinal Section Plan – Southern Edge Vehicle Entering		3/4		Hemanote Consultants	-	29 Oct 2024
	Driveway Longitudinal Section Plan – Northern Edge Vehicle Exiting		4/4		Hemanote Consultants	-	29 Oct 2024
55.	Arboricultural Impact Assessment and Tree Management Plan				Horticultural Management Services	5	31 Oct 2024
56.	Waste Service Letter				Capital City Waste Services	-	1 Nov 2024
57.	Waste Service Letter				Waste Free	-	1 Nov 2024
58.	Survey Plan				NCAP Survey	1	1 Mar 2023
59.	Cut & Fill Volumetric Analysis
	Title Pages, Notes & Details			C-001	CEC	B	12 Nov 2024
	Cut & Fill Plan & Analysis			C-002	CEC	B	12 Nov 2024
60.	Acoustic Response				Day Design	1	10 Jul 2024

Orders

25. The Court orders:

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 consent is granted to development application DA 221/2024/HA, as amended, for the demolition of existing structures and construction of a two storey centre based child care facility for 82 children with basement parking for 27 vehicles and removal of 10 trees, subject to the conditions in the annexure marked "A”.

E Espinosa

Commissioner of the Court

Annexure A

Architectural Plans

**********

Amendments

04 February 2025 - Amendment to include the Architectural Plans

Decision last updated: 04 February 2025