Land and Environment Court New South Wales Medium Neutral Citation: Whitworth Holding Pty Ltd v Cumberland Council [2020] NSWLEC 1241 Hearing dates: Conciliation conference on 28 May 2020 Date of orders: 03 June 2020 Decision date: 03 June 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: See orders at [12] below Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Education and Care Services National Regulations Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 2013 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 Texts Cited: Holroyd Development Control Plan 2013 New South Wales Department of Planning and Environment, Child Care Planning Guideline (August, 2017) Category: Principal judgment Parties: Whitworth Holding Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Counsel: J Smith (Applicant) C McFadzean (Solicitor) (Respondent) Solicitors: Centurion Lawyers (Applicant) Cumberland Council (Respondent) File Number(s): 2019/314604 Publication restriction: No Judgment 1. COMMISSIONER: Whitworth Holding Pty Ltd (the Applicant) has appealed the decision of Cumberland Council (the Respondent) to refuse its development application DA2018/233/1, for demolition of an existing dwelling and construction of two storey childcare centre with basement car parking, and associated fencing and landscaping works (the proposed development) at 7 Whitworth Street, Westmead (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court's jurisdiction. 3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which has been held on 28 May 2020 by teleconference, and I have presided over the conciliation conference. 5. 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 consent to the Applicant's modification application, subject to conditions. 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. 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: 1. the Development Application was made with owner's consent; 2. the Proposed Development, characterised as a 44 place centre based child care facility over three levels, is permissible with consent on the Subject Site, which is zoned R4 High Density Residential; 3. the Proposed Development complies with the FSR development standard applicable to the Subject Site under the provisions of cl 4.4 of Holroyd Local Environmental Plan 2013 (HLEP); 4. the Proposed Development complies with the height of buildings development standard applicable to the Subject Site under the provisions of cl 4.3 of HLEP; 5. the Proposed development is compliant with the provisions of cl 6.3 (concerning essential services), cl 6.7 (concerning stormwater management) and cl 6.8 (concerning salinity) of HLEP; 6. the Applicant's development application has considered the matters related to whether the Subject Site is contaminated as required under cl 7(1) of the State Environmental Planning Policy No 55—Remediation of Land; 7. the Applicant's development application has considered the matters related to the provisions of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, as well as the requirements of cll 107 and 108 of the Education and Care Services National Regulations concerning indoor and outdoor space requirements, and cll 23 and 25 of the Child Care Planning Guideline produced by the NSW Department of Planning and Environment; 8. the provisions of section 1.5. of Part E of the Holroyd Development Control Plan 2013 (concerning the notification of development applications for new non-residential development within residential zones. 1. The Parties have explained, and I accept, that the above jurisdictional prerequisites have been satisfied. 2. Having considered the advice of the Parties, provided above at [7] and [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 3. I am further 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. 4. 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. 5. The Court orders: 1. The Applicant is granted leave to amend Development Application No. 2018/233/1 and to rely upon the following amended plans and documents: Drawing No. Revision Title Prepared By Date 02 Rev D Site Plan Baini Design 05/03/2020 04 Rev D Basement Floor Plan/ Driveway Section 05 Rev D Ground Floor Plan 06 Rev D First Floor Plan 07 Rev D Elevations 08 Rev D Call out elevations / sections 10 Rev D 3D Perspectives / streetscape 11 Rev D Schedule of Finishes 17 Rev D Fence Detail Sheets 1 – 3 Evacuation Plans SPS 25/02/2020 1531 A Fire Engineering Report J Squared Engineering 06/03/2020 L - 01 E Landscape Concept Outside Design Group 4/7/2019 L – 02 E Landscape Plan – Playground Section and Fence Elevation 29/1/2020 000 H Stormwater – Cover Sheet Plan Australian Consulting Engineers 25/02/2020 101 H Stormwater Layout Plan Basement Level Sheet 1 of 2 102 H Stormwater Layout Plan Basement Level Sheet 2 of 2 103 H Stormwater Layout Plan Ground Level 104 H On-set detention details and calculation sheets 105 H Level 1 plan & miscellaneous details sheet R180172R5 4 Acoustic Impact Statement Rodney Stevens Acoustics 04/05/2020 N/A N/A Vehicular Access & Circulation Certification Stanbury Traffic Planning 22/04/2020 E1915-1 1 Detailed Site Investigation GCA Geotechnical Consultant Australia 26/06/2019 1. The Applicant is to pay the Respondent's costs pursuant to 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $1,500, within 28 days. 2. The appeal is upheld. 3. Development Application No. 2018/233/1 for demolition of existing structures and the construction a centre-based child care facility for 44 children at Lot 121 in Deposited Plan 15158, otherwise known as 7 Whitworth Street, Westmead, is approved subject to the conditions included at Annexure "A". …………………………….. M Chilcott Commissioner of the Court Annexure A (401876, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2020