Land and Environment Court New South Wales Medium Neutral Citation: Tom Simmat & Associates Pty Limited v The Hills Shire Council [2020] NSWLEC 1322 Hearing dates: Conciliation conference on 8, 15 July 2020; Documents filed 17 July 2020 Date of orders: 24 July 2020 Decision date: 24 July 2020 Jurisdiction: Class 1 Before: Clay AC Decision: See orders at [9] below Catchwords: DEVELOPMENT APPLICATION – child care centre – conciliation – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 The Hills Local Environmental Plan 2019 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: Tom Simmat & Associates Pty Limited (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) A Hudson (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/359830 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Respondent of a development application (130/2020/JP) for the construction of a two storey premises with basement carparking for use as a child care centre at 8-12 Poole Road, Kellyville (the site). 2. On 8 and 15 July 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). 3. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to the Applicant to amend the development application, uphold the appeal and grant development consent to the development application subject to conditions. 4. An agreement pursuant to s 34 of the LEC Act was filed by the parties on 17 July 2020 giving effect to the agreement in principle. 5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 6. The parties' agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties have stated and I agree based on the material provided to the Court that the relevant jurisdictional prerequisites that are satisfied so this function can be exercised are: 1. The development does not contravene s 4.15(1)(a) of the EPA Act; 2. In relation to cl 7 of State Environmental Planning Policy No 55—Remediation of Land, the land on which the development is proposed to be carried out is not known to be contaminated and is not: 1. land that is within an investigation area; or 2. land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out. 1. In accordance with cl 23 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 the applicable provisions of the Child Care Planning Guideline, have been considered and taken into account in the determination of the development application and no concurrence requirement is activated by the application under cl 22 of the SEPP; 2. The development is for the purpose of a centre-based child care facility as defined in the Dictionary of The Hills Local Environmental Plan 2019 ("THLEP"); 3. The land to which the development application relates is within Zone R3 Medium Density under the provisions of THLEP and development for the purpose of a centre-based child care facility is permitted with consent in the Land Use Table relating to that zone at the end of Part 2 of THLEP; and 4. The development does not contravene any development standards in THLEP or any other applicable environmental planning instrument. 1. 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. 2. The parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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. 3. The Court orders: 1. Leave is granted to amend the application for development consent by relying the amended plans as follows: 1. Architectural Plans prepared by Tom Simmat & Associates Pty Ltd, as follows: Plan No. Drawing Name Revision Issue Date of Issue. Cover Sheet Perspective Sept 2019 1 Site Plan C 19 Feb 2020 3 Site Plan-2 D 12 June 2020 4 Plan Entry Level 0-2 Children Play Areas C 12 June 2020 5 Plan 3-4 and 4-5 Children Play Areas D 12 June 2020 6 Staff Room, Basement Parking and 2-3 Childern Play Areas Staff Room Level F 8 July 2020 7 Roof Plan E 12 June 2020 8 North Elevation South Elevation C 08 July 2020 9 East Elevation West Elevation C 08 July 2020 10 Section A-A Section B-B B 21 Sept 2019 11 Section C-C Section D-D B 21 Sept 2019 12 Window Schedule-1 A 10 June 2019 13 Window Schedule-2 A 10 June 2019 14 Site Analysis Plan A 10 June 2019 15 Shadow Diagrams in June 9am 21st June in Winter A 10 June 2019 16 Shadow Diagrams in June 12:00 Noon 21st June in Winter A 1 July 2019 17 Shadow Diagrams in June 3:00pm 21st June in Winter A 1 July 2019 18A Site Plan – Sediment Control Plan A 1 July 2019 18B Bottle Prep, Room Plan Detail Elevation A, B, C, D B 11 Sept 2019 19 Kitchen Detail Plan Detail A, B B 11 Sept 2019 20 Kitchen Detail Plan Detail C, D B 11 Sept 2019 1. Landscape Plans prepared by John Chetham & Associates, as follows: Plan No. Drawing Name Revision Issue Date of Issue. LP00 Landscape Plan - Overall Site C 8 July 2020 LP01 Landscape and Play Area Plan 01 D 8 July 2020 LP02 Landscape and Play Area Plan 02 C 8 July 2020 LP03 Landscape and Play Area Plan 03 B 11 June 2020 LP04 Landscape Area Plan B 11 June 2020 1. Hydraulic Services Stormwater Concept Plans prepared by Cova Thinking, as follows: Plan No. Drawing Name Revision Issue Date of Issue 482003-H01 Site Plan E 12 June 2020 482003-H02 Carpark Level D 7 July 2020 1. Plan showing details and levels prepared by Survey Plus, revision E, dated 30 March 2020. 1. The appeal is upheld. 2. Development consent is granted to development application 130/2020/JP for the construction of a two storey premises with basement carparking for use as a child care centre at 8-12 Poole Road, Kellyville subject to the conditions in Annexure A. ………………………… P Clay Acting Commissioner of the Court Annexure A (348575, 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: 24 July 2020