Land and Environment Court New South Wales Medium Neutral Citation: Karai v City of Parramatta Council [2020] NSWLEC 1659 Hearing dates: Conciliation conference held on 9, 24 November 2020 and 4, 8 December 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Jurisdiction: Class 1 Before: Morris AC Decision: The Court orders that: (1) The Applicant is granted leave to amend the development application and rely on the drawings referred to in condition 1 of Annexure "A" to this agreement; and (2) The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $15,000. (3) The appeal is upheld. (4) Development application DA/92/2020 for the demolition of existing dwellings and construction of a childcare centre is determined by the grant of consent subject to the conditions set out in Annexure "A" to this agreement. (5) The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days following the entry of these orders. Catchwords: DEVELOPMENT APPLICATION – child care centre – conciliation conference – agreement between the parties 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 Parramatta Local Environmental Plan 2011 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (July 2020) Category: Principal judgment Parties: Friya Karai (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: S Gadiel (Solicitor) (Applicant) D Le Breton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth (Respondent) File Number(s): 2020/114395 Publication restriction: Nil Judgment 1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA 92/2020. The application sought consent for the demolition of existing structures and construction of a two storey 49 place childcare centre at 2 – 6 Brickfield Street, North Parramatta. 2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 and 24 November, and 4 and 8 December 2020. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams. No site view was undertaken. 4. During the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions. That agreement had been reached following discussions between the parties since the application was filed and the preparation of amended plans that addressed the issues raised in the Council's Statement of Facts and Contentions filed on 2 June 2020. 5. 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. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 7. In that regard, the Parties agree, and I am satisfied, the Parramatta Local Environmental Plan 2011 (LEP) is the relevant environmental planning instrument. The site is zoned R3 Medium Density Residential, and the amended proposal, a centre-based child care facility, is permissible with consent. 8. The development is less than the maximum height of buildings permitted on the site pursuant to the provisions of cl 4.3(2) of the LEP which is 11 metres and the floor space ratio , at 0.31:1 is also less than the 0.6:1 permitted pursuant to the provisions of cl 4.4(2) of the LEP . 9. The site is not identified as an item of environmental heritage nor is it located within a Heritage Conservation area (cl 5.10). It is not subject to bushfire hazard (cl 5.11) or identified as affected by acid sulfate soils (cl 6.1). 10. The site is, in part, at or below the flood planning level so cl 6.3 applies. A Risk Assessment was prepared by Bewsher Consulting Pty Ltd dated 7 February 2020. A Flood Emergency Response Plan has also been prepared by Molino Stewart dated 27 October 2020. 11. The development complies with the requirements of cl 6.3(3), that is the development: 1. is compatible with the flood hazard of the land; 2. is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties; 3. incorporates appropriate measures to manage risk to life from flood; 4. is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or water courses; and 5. and is not likely to result in unsustainable social and economic costs to their community as a consequence of flooding. 1. State Environmental Planning Policy No 55—Remediation of Land applies to the land. A Stage 2 Detailed Site Investigation and Remediation Action Plan prepared by Construction Sciences dated 8 April 2020 concludes that the site is currently unsuitable for the proposed development, however, will be suitable after remediation, for the purposes of a child care centre. The land will be remediated before the development is proposed to be carried out. Conditions of consent have been proposed that reflect the recommendations of the investigations. 2. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 applies to the land. Clause 22 of the policy does not apply to the development because the floor area of the building complies with reg 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations and the outdoor space requirements for the building comply with reg 108 (outdoor unencumbered space requirements) or those Regulations. 3. In accordance with the provisions of cl 23 I am satisfied the applicable provisions of the guidelines have been taken into consideration in relation to the proposed development. 4. There are no draft planning proposals that apply to the land. 5. There are not any other matters contained in the Environmental Planning and Assessment Regulation 2000 that prevent grant of consent. 6. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable and that the site is suitable for the development as proposed. 7. Having regard to the applicant's explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council. 8. Accordingly, I am satisfied that the proposal is in the public interest. 9. 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. 10. The Court orders that: 1. The Applicant is granted leave to amend the development application and rely on the drawings referred to in condition 1 of Annexure "A" to this agreement; and 2. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $15,000. 3. The appeal is upheld. 4. Development application DA/92/2020 for the demolition of existing dwellings and construction of a childcare centre is determined by the grant of consent subject to the conditions set out in Annexure "A" to this agreement. 5. The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days following the entry of these orders. …………………………….. Sue Morris Acting Commissioner of the Court Annexure A (345056, pdf) Plans (17219562, 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: 18 December 2020