Zaki v Georges River Council

[2020] NSWLEC 1092

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zaki v Georges River Council [2020] NSWLEC 1092
Hearing dates:	Conciliation conference on 21 January 2020
Date of orders:	04 March 2020
Decision date:	04 March 2020
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	See orders at [9]
Catchwords:	DEVELOPMENT APPLICATION – adaptive reuse – child care facility – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Maged Zaki (Applicant) Georges River Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) E Fleming (Solicitor) (Applicant) L Mulligan (Solicitor) (Respondent)   Solicitors: Swaab (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2019/187513
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 refusal by Georges River Council (“Council”) of Development Application No DA2018/0267 (“the DA”). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.15 and s 4.16 of the EPA Act.

2. The DA relates to a 1,425m² parcel of land identified as Lot 33 DP 817864 at 200 Hurstville Road, Oatley (“the site”). The DA, as submitted to Council on 4 July 2018 sought consent for alterations and additions to an existing two storey commercial building and use of the building for a “centre based child care facility” (“child care centre”) for 137 children and associated parking for 19 cars.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties. I presided over the conciliation conference, held on 21 January 2020. The conciliation conference commenced with a view of the site and hearing of one oral submission by a former tenant of the building. The submitter raised no objection to the proposal but raised certain concerns, as previously documented in her written submission to Council dated 16/8/2018.

4. Amended plans provided in advance to the Council on a without prejudice basis formed the basis of discussions at the s34 conciliation conference. At the conciliation conference the parties reached an agreement, based on the amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties filed that agreement, the amended plans and agreed conditions of consent with the Court on 22 January 2020.

5. The main changes between the plans as originally submitted to Council and the plans the subject of the s34 agreement are:

1. The ground level parking plan was reconfigured, resulting in a reduction in the number of vehicular crossings from three to two, a reduction in parking spaces on this level from 19 to 10, the provision of one waiting bay and two on street drop off / pick up spaces; and

2. a second level of parking is now provided in an above ground structure accessed via a vehicle lift. The new upper level of parking accommodates 12 parking spaces to be used only for staff; and

3. the number of children to be accommodated has been reduced from 137 to 132.

6. 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 jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraph [7] below.

Satisfaction of jurisdiction

7. The relevant jurisdictional matters are:

1. In relation to Kogarah Local Environmental Plan 2012 (“KLEP 2012”), I am satisfied that the development is for the purpose of a centre-based child care facility, which is a use permissible with consent in the B1 Neighbourhood Centre zone. I also accept the advice of the parties and the evidence submitted with the amended application set of drawings attached at Annexure 'A', that the development does not contravene any development standard in KLEP 2012.

2. In relation to State Environmental Planning Policy No 55 – Remediation of Land (“SEPP 55”), and in particular cl 7(1) and (2), requiring consideration of any contamination and associated remediation, a Preliminary Site Investigation report prepared by EI Australia and dated 7 June 2018 was submitted as part of the DA documentation filed with the Class 1 application to the Court. The conditions of consent that accompany the agreement between the parties include conditions consistent with the recommendations of that report and I am therefore satisfied that the requirements of SEPP 55 have been satisfied.

3. In relation to State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (“SEPP Child Care) and associated Child Care Planning Guidelines I am satisfied with the advice of the parties and the reasons provided in the Statement of Environmental Effects dated October 2019 that the proposal is not inconsistent with the relevant provisions of this instrument.

Disposal of proceedings in accordance with the parties’ decision

8. 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.

9. The Court orders:

1. The Applicant is granted leave to amend its development application to rely upon the following plans and material attached at Annexure 'A':

Description	Reference No.	Date	Revision	Prepared by
Cover Page / Drawing Schedule	DA00	Architex
Site Analysis	DA01	05.06.18	A	Architex
Site Plan	DA02	14.01.20	L	Architex
Ground Floor Plan	DA03	18.10.19	F	Architex
First Floor Level	DA04	22.10.19	G	Architex
Second Floor Level	DA05	23.10.19	G	Architex
Roof Plan	DA06	18.10.19	D	Architex
Elevations	DA07	23.10.19	F	Architex
Sections A, Streetscape & Site Details	DA08	14.01.20	F	Architex
Shadow Diagram – 9am, 22 June	DA09	10.10.19	B	Architex
Shadow Diagram – 12 Noon, 22 June	DA10	10.10.19	B	Architex
Shadow Diagram – 3pm – 22 June	DA11	10.10.19	B	Architex
Play Area Calculations	DA12	18.10.19	C	Architex
Play Area Calculations	DA13	22.10.19	D	Architex
Roof Area Calculations	DA14	18.10.19	C	Architex
Wall Area Openings	DA15	22.10.19	B	Architex
Parking Layout – Ground Floor	DA16	14.01.20	J	Architex
Parking Layout – First Floor	DA17	25.11.19	F	Architex
Parking Layout – Elevations and Sections	DA18	14.01.20	H	Architex
Landscape Plan	1870.GD.01, 1870.GD.02, 1870.GD.3, 1870.GD.04 & 1870.GD.05	17.01.20	C	Greenland Design
Plan of Management	21 January 2020
Stormwater Drainage Plans	SW001, SW010, SW011 SW020.	18.10.19 20.01.19 20.01.20 20.01.20	A B B B	Mance Arraj Civil & Structural Engineers
Stormwater Management Report	20.01.20
Acoustic Report	SYD2018-1044-R001C	18.10.19	Acouras Consultancy
Statement of Environmental Effects	21.10.19	Think Planners Pty Ltd
Traffic and Parking Impact Assessment	19286	23.10.19	V05	The Transport Planning Partnership
Letter from ttpp dated 28 November 2019	28.11.19	The Transport Planning Partnership
Letter from ttpp dated 14.01.20	19286	14.01.20	The Transport Planning Partnership

2. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or as assessed.

3. The appeal is upheld.

4. Development Application No. 2018/0267 relating to alterations and additions to the existing two-storey commercial building to facilitate a change of use to a centre-based child care facility, external façade beautification works and landscaping on land legally described as Lot 33 in Deposited Plan 817864, known as 200 Hurstville Road, Oatley is approved subject to the conditions in Annexure 'B'.

……………………

J Bindon

Acting Commissioner of the Court

Annexure A Part 1 (8.66 MB)

Annexure A Part 2 (10.5 MB)

Annexure A Part 3 (10.4 MB)

Annexure A Part 4 (10.5 MB)

Annexure A Part 5 (10.5 MB)

Annexure A Part 6 (10.4 MB)

Annexure A Part 7 (2.25 MB)

Annexure A Stormwater Management Report (875 KB)

Annexure B (248 KB)

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Decision last updated: 04 March 2020