Land and Environment Court New South Wales Medium Neutral Citation: Zaki v Inner West Council [2020] NSWLEC 1559 Hearing dates: Conciliation conference on 6 November 2020 Date of orders: 16 November 2020 Decision date: 16 November 2020 Jurisdiction: Class 1 Before: Clay AC Decision: See orders at [19] Catchwords: DEVELOPMENT APPLICATION – demolition of dwelling – alterations and additions to existing child care centre – conciliation conference – agreement between the parties – orders Legislation Cited: Education and Care Services National Regulations Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy (Educational Establishment and Child Care Facilities) 2017 State Environmental Planning Policy No 55—Remediation of Land Cases Cited: Child Care Planning Guideline Category: Principal judgment Parties: Maged Zaki (Applicant) Inner West Council (Respondent) Representation: Counsel: M Staunton (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Swaab (Applicant) Inner West Council (Respondent) File Number(s): 2020/246232 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal by the Respondent of Development Application DA 2020/0508 (development application) for the demolition of the existing building at 12 Waterloo Street, Rozelle, and alterations and additions to an existing child care centre approved on Lot 11 Deposited Plan 603461 at Lot 6 Deposited Plan 424 and known as 6 – 12 Waterloo Street, Rozelle (the site). 2. On 6 November 2020, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act). 3. At the conciliation conference, the parties reached an 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 amend the development application and to grant development consent. 4. On 6 November 2020, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle. 5. The essence of the development application is to extend the existing childcare centre from 6 – 10 Waterloo Street into 12 Waterloo Street after the demolition of the existing dwelling at 12 Waterloo Street. The number of children at the centre will be increased from 74 to 105 because additional play area at ground level on 12 Waterloo Street will be provided. The alterations and additions will also enable an additional 3 parking spaces to be provided. 6. Pursuant to s 34(3) of the Court 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. 7. The parties' agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant the application to grant development consent. The following matters are the matters of relevance to the exercise of that power jointly submitted by the parties. 8. The Leichhardt Local Environmental Plan 2013 (LEP) applies to the site. Under the LEP, the site is zoned R1 General Residential and part B2 Local Centre. The proposed development is permissible with consent in the R1 and B2 zones. 9. No height limit is prescribed under the LEP for the site. The relevant clauses of the LEP are considered in the following table: Clause Requirement Proposal Floor Space Ratio cl 4.4 A maximum floor space ratio (FSR) of 1:1 is identified for the site applying to the B2 zone and 0.7:1 to the R1 zone. The proposal has an FSR of 0.642:1 and complies with cl 4.4. This includes part of the upper level play area that is roofed. Heritage Conservation (5) Heritage assessment. The consent authority may, before granting consent to any development— cl 5.10 (a) on land on which a heritage item is located, or The site is not identified as a heritage item, it is not located within a heritage conservation area, however it is located adjacent to a heritage listed item on its south eastern boundary. See the heritage map extracted on page 14 of the SEE located behind Tab 4 of the Class 1 Application. (b) on land that is within a heritage conservation area, or The proposed alterations and additions will be mainly internal, particularly with the regard to the boundary adjacent to the heritage item therefore it is considered unlikely that the heritage item will impact the proposal. (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. Stormwater Management (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development— The development application is accompanied by stormwater plans, a copy of which are behind Tab 12 of the Class 1 Application. An amended stormwater plan has also been prepared in response to contention 3 of Council's SOFACs. cl 6.4 (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and Condition 25 requires that the stormwater design generally be carried out in accordance with the approved engineering plans. (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and Council is satisfied that the proposed stormwater design has been designed in such a manner that satisfies cl 6.4 of the LEP. (c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact. Earthworks (3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters— a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, b) the effect of the development on the likely future use or redevelopment of the land, This application seeks consent for minor excavation associated with the alterations and additions works to the existing commercial building. c) the quality of the fill or the soil to be excavated, or both, It is considered that the proposed excavations, will have minimal adverse environmental or amenity impacts. cl 6.2 d) the effect of the development on the existing and likely amenity of adjoining properties, It is also considered that the proposal will result in an appropriate outcome given the nature of the development, the unique characteristics of the site and the proposed compliance with relevant controls. e) the source of any fill material and the destination of any excavated material, In addition, it is considered unlikely due to the location of the site that excavation will lead to the disturbance of relics. f) the likelihood of disturbing relics, g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) 1. Clause 7 of the SEPP 55 requires a consent authority to consider the contamination and remediation of land when determining a development application. 2. Given the historical use of the site for residential purposes and considering no significant earthworks are proposed there is limited impact from potential contamination. Contamination associated with the childcare centre on 6-10 Waterloo Street was considered as part of the Original Approval. However, as requested by Council a detailed site investigation has been prepared by Environmental Investigations (EI) for 12 Waterloo Street. That report confirms that the site can be made suitable for the development, provided that the recommendations at Section 11 of the EI report is followed and SEPP 55 is satisfied. A detailed site investigation report is behind Tab 11 of the Class 1 Appeal filed on 18 December 2019. 3. Condition 14 and Condition 41 has been imposed to require that the site be remediated in accordance with Remediation Action Plan prepared in response to Contention 1 and that a Site Audit Statement be issued confirming that the site is suitable for the proposed use. State Environmental Planning Policy (Educational Establishment and Child Care Facilities) 2017 (Childcare SEPP) 1. Concurrence from the Department of Education under cl 22(2) of the Childcare SEPP is not required because the development application 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. 1. The development application has considered the applicable matters of the Child Care Planning Guideline, as required under cl 23 of the Childcare SEPP. 2. The development application was place on public notification between 16 July 2020 to 30 July 2020. The Respondent received 4 submissions in response to the development application. Oral submissions were made by two objectors at the commencement of the conciliation. 3. Having considered the material provided to the Court, and for the reasons expressed by the parties, I am 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 Court 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 5. 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 EP&A Act. 6. The Court orders: 1. The Applicant is granted leave to amend its development application to rely upon the following plans: Drawing No. and Revision/Issue Title Prepared by Date Architectural plans Drawing No. 00 Issue C Cover Sheet Architex 10 June 2020 Drawing No. 01 Issue C Site Analysis Drawing No. 02 Issue C Site & Roof Plan Drawing No. 03 Issue D Ground Floor Plan 12 October 2020 Drawing No. 04 Issue D First Floor Plan Drawing No. 05 Issue D Second Floor Plan Drawing No. 06 Issue C Elevations 10 June 2020 Drawing No. 07 Issue C Elevations & Sections Drawing No. 08 Issue C Sections Drawing No. 09 Issue C 21st June 9am Shadow Drawing No. 10 Issue C 21st June 12 noon Shadow Drawing No. 11 Issue C 21st June 3 pm Shadow Drawing No.12 Issue C Demolition Plan Drawing No. 13 Issue C Evacuation Plan – Ground Level Drawing No. 14 Issue C Evacuation Plan – First Floor Drawing No.15 Issue C Evacuation Plan – Second Floor Drawing No. 16 Issue B No.12 – Existing Floor Plan Drawing No. 17 Issue C Floor Space Ratio Calculation Diagrams Drawing No. 18 Issue C Floor Space Ratio Calculation Diagrams Drawing No.19 Issue C Play Area Diagrams Drawing No. 20 Issue C Play Area Diagrams Landscape Plans Drawing No 2057.GD.01 Issue 7 Landscape Plan – Ground Floor Greenland Design Landscape Architects 23 October 2020 Drawing No 2057.GD.02 Issue 7 Landscape Plan – First Floor Drawing No 2057.GD.03 Issue 7 Landscape Detail Drawing No 2057.GD.04 Issue 7 Engineering Plans Drawing No. SW030 Pre-Development & Post Development Catchment Plan Mance Arraj 19 October 2020 Issue C Vehicle/Traffic Plans Project No: 19438 B85 Vehicle Turning Path – Space 1 Entering / Exiting Car Space Varga Traffic Planning Pty Ltd 13 October 2020 Project No: 19438 B85 Vehicle Turning Path – Space 2 Entering / Exiting Car Space Project No: 19438 B85 Vehicle Turning Path – Space 3 Entering / Exiting Car Space Project No: 19438 B85 Vehicle Turning Path – Space 4 Entering / Exiting Car Space Project No: 19438 B85 Vehicle Turning Path – Space 5 Entering / Exiting Car Space Project No: 19438 B85 Vehicle Turning Path – Space 6 Entering / Exiting Car Space Project No: 19438 B85 Vehicle Turning Path – Space 7 Entering / Exiting Car Space Project No: 19438 B85 Vehicle Turning Path – Space 8 Entering / Exiting Car Space Project No: 19438 B85 Vehicle Turning Path – Space 9 Entering / Exiting Car Space 1. The Applicant is granted leave to amend its development application to rely upon the following documents: Title Prepared by Date Remediation Action Plan; E24494.E06_Rev0 EIAustralia 20 October 2020 1. The appeal is upheld. 2. Development Application DA 2020/0508 for the demolition of the existing building at 12 Waterloo Street, Rozelle, and alterations and additions to an existing child care centre approved on Lot 11 Deposited Plan 603461 at Lot 6 Deposited Plan 424 and known as 6 – 12 Waterloo Street, Rozelle, is approved subject to the conditions at Annexure A. ………………………… P Clay Acting Commissioner of the Court Annexure A (216350, 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: 16 November 2020