Zaki Property Pty Ltd v Liverpool City Council

[2021] NSWLEC 1740

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zaki Property Pty Ltd v Liverpool City Council [2021] NSWLEC 1740

Hearing dates:

Conciliation conference on 22 November 2021

Date of orders:

2 December 2021

Decision date:

02 December 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. 870-2021, for the Construction of a two storey child care centre for 104 children with associated signage, car parking, landscaping, site works and Torrens Title subdivision into two lots at 99-101 Carmichael Drive, West Hoxton (legally described Lot 216 DP 1029540), is approved subject to the conditions at Annexure B.

Catchwords:

APPEAL – development application – centre based child care facility – conciliation conference – agreement reached – development consent granted

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008 cll 2.6, 4.1, 4.3, 4.4

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 23, 25, 26

State Environmental Planning Policy (Infrastructure) 2007, cl 45

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

Sydney Water Act 1994, s 78

Texts Cited:

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

Category:

Principal judgment

Parties:

Zaki Property Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Hemmings (Respondent)

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

File Number(s):

2021/269052

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings are an appeal concerning a development application for the subdivision of land into 2 Torrens title lots and the construction of a two-storey centre based child care facility for 104 children at 99-101 Carmichael Drive, West Hoxton. The development application was lodged with Liverpool Council on 2 August 2021. 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 [10] 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 22 November 2021. I presided over the conciliation conference.

3. Following 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 agreement was subsequently filed on 26 November 2021, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The changes include a reduction in the number of car spaces and the provision of a service space, a reduction in the setback to the street, the addition of skylights, the provision of a recess in the north elevation to increase articulation, internal changes, and a change to the Plan of Management to ensure that parents do not park on the street (where there are parking bays on the other side of the road).

4. 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. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional pre-requisites for the grant of development consent by the Court.

5. As the presiding Commissioner, I am 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 jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned R2 – Low Density Residential under the Liverpool Local Environmental Plan 2008 (LLEP), in which centre based child care facilities are permissible with development consent.

• The subdivision of land is permissible with consent, pursuant to cl 2.6 of the LLEP, and the proposed subdivision complies with the minimum subdivision lot size established by cl 4.1 of the LLEP.

• The proposed development complies with the development standards for height and FSR, established by cll 4.3 and 4.4 of the LLEP.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. The Detailed Site Investigation Report dated 5 November 2021 concludes that the site is suitable for the proposed child care and residential development without the need for further investigation, remediation or management.

• The State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Childcare SEPP) applies to the proposed development. The proposed development meets the development standards in cl 25 of the Childcare SEPP, and, in accordance with cl 23 and based on the Statement of Environmental Effects, I have considered the applicable provisions of the Child Care Planning Guideline.

• Clause 45(2) of the State Environmental Planning Policy (Infrastructure) 2007 applies to development carried out within or immediately adjacent to an easement for electricity purposes, and requires that, before determining a development application, written notice be given to the electricity supply authority and any response within 21 days of the notice be taken into account. On 3 October 2021, the Council referred the development application to TransGrid, in satisfaction of cl 45(2)(a). No response has been provided by TransGrid, and the 21 day period has passed.

6. Further, I note that the Council referred the development application to Sydney Water under s 78(1) of the Sydney Water Act 1994 on 3 October 2021. Sydney Water has provided its comments, which have been incorporated in the agreed conditions of consent.

7. 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 LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. 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.

9. The Court notes that the Council, as the relevant consent authority, has agreed pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to amend Development Application No. 870/2021, with the amended plans and documents uploaded on the NSW Planning Portal on 25 November 2021 and filed with the Court on 25 November 2021 as described in Annexure A.

10. The Court orders that:

1. The appeal is upheld.

2. Development Application No. 870-2021, for the Construction of a two storey child care centre for 104 children with associated signage, car parking, landscaping, site works and Torrens Title subdivision into two lots at 99-101 Carmichael Drive, West Hoxton (legally described Lot 216 DP 1029540), is approved subject to the conditions at Annexure B.

……………………….

J Gray

Commissioner of the Court

Annexure A (163009, pdf)

Annexure B (676701, pdf)

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Decision last updated: 02 December 2021