Wiggles and Giggles Cranebrook Pty Ltd v Penrith Council

[2021] NSWLEC 1295

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wiggles & Giggles Cranebrook Pty Ltd v Penrith Council [2021] NSWLEC 1295

Hearing dates:

Conciliation conference on 3 May 2021

Date of orders:

27 May 2021

Decision date:

27 May 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

Refer to the orders below at [12]

Catchwords:

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

Legislation Cited:

Education and Care Services National Regulations

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy (Educational Establishment and Child Care Facilities) 2017, cll 22(2), 23

Penrith Local Environmental Plan 2010, cll 4.3, 7.1, 7.4, 7.6, 7.7

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (April 2021)

NSW Department of Planning and Environment, Child Care Planning Guideline, (August 2017)

Category:

Principal judgment

Parties:

Wiggles & Giggles Cranebrook Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
A Avery (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
Penrith City Council (Respondent)

File Number(s):

2021/16196

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Penrith City Council (Council) of Development Application DA20/0644 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 9,024m² parcel of land at 15-17 Garswood Road, Glenmore Park and identified as Lot 4211 in DP 1150762 (the site). The DA, as originally lodged with Council, sought consent for the demolition of existing structures and construction of a 200 place “Child Care Centre (centre-based child care facility)” and related car parking for 45 cars, fencing, tree removal, landscaping, drainage and site works.

3. The DA was submitted to the Council on 7 October 2020. It was advertised and notified between 26 October and 25 November 2020, resulting in 50 public submissions. On 19 January 2021 the Applicant lodged this Class 1 Appeal with the Court. On 3 March 2021 the Council filed its Statement of Facts and Contentions (SOFC).

4. The Court arranged a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), held on 3 May 2021. By agreement between the parties, and in accordance with the Court’s Covid-19 Policy in place at the time, there was no site view as part of the s34 conciliation conference. No oral submissions were taken, although copies of the public written submissions were provided to the Court prior to the conference.

5. At the conclusion of the s 34 conference on 3 May 2021 the parties had reached an agreement, based on amended plans made to address matters raised in the SOFC and in the public submissions. A final copy of the s34 agreement and conditions of consent forming Annexure A of the agreement was filed on 4 May 2021.

6. The main changes between the original DA and the amended application the subject of the s 34 agreement are:

1. The building has been reduced in size, with the building frontprint decreasing by 189.03m², from 1279.42m² to 1090.39m².

2. The capacity of the centre has been reduced by 40 children, from 200 to 160, and the number of parking spaces reduced from 45 to 40.

3. To avoid the tree protection zones of otherwise affected trees the footpath and driveway have been redesigned, and the water tanks, pits and pipes have been relocated. The acoustic fence has also been relocated from a distance of 2m to a distance of 5m from the property boundaries. Additional landscaping is provided on the site including within the parking area.

4. The two signs on the street entry walls and one of the building façade signs have been removed. One building façade sign remains as part of the application.

7. 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. The parties identified the jurisdictional matters of relevance in these proceedings and agreed that there are no jurisdictional constraints to the Court exercising its function under s 34(3) of the LEC Act.

Satisfaction of jurisdiction

8. In relation to the Penrith Local Environmental Plan 2010 (PLEP) the relevant considerations are:

1. The development is for the purposes of a “Child Care Centre (centre-based child care facility)”, which is permissible with consent in the E4
   Environmental Living Zone (E4 Zone) and is consistent with the objectives of the E4 Zone.

2. The development has a height of 7.98m and is therefore compliant with the 8.5m height of buildings development standard at cl 4.3 of the PLEP. No other development standards apply.

3. Clauses 7.1 Earthworks, 7.4 Sustainable development, 7.6 Salinity and 7.7 Servicing apply. The matters for consideration set out in these clauses have been addressed in the application. The earthworks have been designed to ensure no adverse impacts to adjoining properties or the stormwater drainage system and suitable construction methods, soil erosion and sediment controls measures during construction are included in the conditions of consent. The design also incorporates suitable sustainability measures and will be connected to reticulated water and sewer and other services.

9. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), applies to the land and cl 7 requires consideration of any contamination and associated remediation. A Detailed Site Investigation report by Geotesta dated 22 March 2021 (DSI report) was submitted. It concludes that the site is suitable for the proposed land use for child care development subject to a Data Gap Assessment, as recommended and provided for in Conditions 7 and 8 of the consent.

10. State Environmental Planning Policy (Educational Establishment and Child Care Facilities) 2017 (Child care SEPP) applies to the development. The DA has considered the applicable matters of the Child Care Planning Guideline, as required under cl 23 of the Child care SEPP. Concurrence from the Department of Education under cl 22(2) of the Childcare SEPP is not required because the DA complies with:

1. regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, and

2. regulation 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations.

Disposal of proceedings in accordance with the parties’ decision

11. 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’ agreement.

12. The Court orders:

1. The Applicant is granted leave to amend its development application the subject of these proceedings in accordance with the following plans and material:

Drawing Numbers	Drawing Name	Prepared by	Revision	Date
A000	Cover Page	Design M Studio	DA02	18/04/21
A001	3D Visualisations	Design M Studio	DA02	18/04/21
A100	Site Plan	Design M Studio	DA02	18/04/21
A101	Site Analysis	Design M Studio	DA02	18/04/21
A102	Contextual Analysis	Design M Studio	DA02	18/04/21
A103	Demolition Plan	Design M Studio	DA02	18/04/21
A200	Ground Floor	Design M Studio	DA02	18/04/21
A201	Mezzanine Plan	Design M Studio	DA02	18/04/21
A202	Roof Plan	Design M Studio	DA02	18/04/21
A300	Elevations 1 of 2	Design M Studio	DA02	18/04/21
A301	Elevations 2 of 2	Design M Studio	DA02	18/04/21
A400	Sections	Design M Studio	DA02	18/04/21
A500	Shadow Diagram 1 of 3	Design M Studio	DA02	18/04/21
A501	Shadow Diagram 2 of 3	Design M Studio	DA02	18/04/21
A502	Shadow Diagram 3 of 3	Design M Studio	DA02	18/04/21
A600	Window Schedule	Design M Studio	DA02	18/04/21
A601	Window Schedule	Design M Studio	DA02	18/04/21
A602	Window Schedule	Design M Studio	DA02	18/04/21
A603	Window Schedule	Design M Studio	DA02	18/04/21
A604	Door Schedule	Design M Studio	DA02	18/04/21
A605	Door Schedule	Design M Studio	DA02	18/04/21
A606	Door Schedule	Design M Studio	DA02	18/04/21
A607	Schedule of Finishes	Design M Studio	DA02	18/04/21
A701	Evacuation Plan	Design M Studio	DA02	18/04/21
A800	Advertising Signage	Design M Studio	DA02	18/04/21
Page 1 to 4	DA Landscape Concept	Conzept Landscape Architects	LPS34 21-266	20/04/21
D-01 to DA-02	Stormwater Concept Plan	Rammy Associates Pty Ltd	B	19/04/21
-	Waste Management Plan	-	29/9/20.
-	Access Report	PSE Access Consulting	-	20 September 2020
-	Arboricultural Report	Urban Forestry Australia	-	April 2021
21-125	Air Quality Report	Astute Environmental Consulting	R1-1	21 April 2021
7041-2.1R	Environmental Noise Impact Assessment and MUSIC Model version 6.3.0	Day Design Pty Ltd	-	20 April 2021
-	Stormwater Management Strategy - Amended	Rammy Associates Pty Ltd	-	29 April 2021
NE855	Detailed Site Investigation	Geotesta	-	22 March 2021

2. The Applicant is to pay the Respondent's costs under s.8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $3,500.

3. The appeal is upheld.

4. Development Application No. DA20/0644, for the construction of a 160 place Child Care Centre and associated works including car parking, fencing, tree removal, landscaping, drainage and site works on 15-17 Garswood Road, Glenmore Park (Legally described Lot 4211 DP1150762), is approved subject to the conditions of consent set out in Annexure A.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (230982, pdf)

Plan (820715, pdf)

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Decision last updated: 27 May 2021