Warringah Road Developments Pty Ltd v Northern Beaches Council

[2019] NSWLEC 1203

Land and Environment Court

New South Wales

Medium Neutral Citation:	Warringah Road Developments Pty Ltd v Northern Beaches Council [2019] NSWLEC 1203
Hearing dates:	Conciliation conference on 3 May 2019
Date of orders:	03 May 2019
Decision date:	03 May 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal be upheld. (2) Development Consent be granted to DA2018/0697 for demolition works and construction of a centre-based childcare facility for a maximum of 146 children subject to the imposition of the conditions of consent set out in Annexure A.
Catchwords:	APPEAL – development application – child care centre – conciliation conference – agreement between the parties - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Infrastructure) 2007 Warringah Local Environmental Plan 2011
Category:	Principal judgment
Parties:	Warringah Road Developments Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: J Hones, Hones Lawyers (Applicant) S Patterson, Willshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/282754
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal concerning a development application lodged with Northern Beaches Council for demolition works and the construction of a centre-based childcare facility for 146 children at 723-727 Warringah Road, Forestville. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 was held on 3 May 2019. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I was satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

• The development works are for the purposes of a centre-based child care facility, which is a nominated permissible use in the R2 Low Density Residential zone pursuant to the Warringah Local Environmental Plan 2011 (“WLEP 2011”),

• Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires consideration as to whether the land is contaminated and requires remediation. Documentation provided with the application indicates that the site is not contaminated.

• As required by cl 101(2) of the State Environmental Planning Policy (Infrastructure) 2007, I am satisfied that, based on the Traffic and Parking Impact Report (dated 1 May 2018), the Acoustic Assessment Report (dated 30 April 2018) and the Air Quality Assessment Report (dated 30 April 2018), the development cannot practicably have access from another road, will not adversely affect the safety, efficiency and ongoing operation of Warringah Road, includes measures to ameliorate potential traffic noise arising from Warringah Road, and will not be adversely impacted by vehicle emissions.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, 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.

7. The Court orders that:

1. The appeal be upheld.

2. Development Consent be granted to DA2018/0697 for demolition works and construction of a centre-based childcare facility for a maximum of 146 children subject to the imposition of the conditions of consent set out in Annexure A.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (328 KB, pdf)