Land and Environment Court New South Wales Medium Neutral Citation: MPGA Pty Ltd v Fairfield City Council [2021] NSWLEC 1326 Hearing dates: Conciliation conference on 29 April 2021, 17 and 24 May 2021 Date of orders: 11 June 2021 Decision date: 11 June 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: See orders at [15] below Catchwords: DEVELOPMENT APPEAL – modification application – child care centre – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cl 23 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 Texts Cited: Child Care Planning Guideline Category: Principal judgment Parties: MPGA Pty Ltd (Applicant) Fairfield City Council (Respondent) Representation: Counsel: D Loether (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent) Solicitors: Bartier Perry (Applicant) Marsdens Law Group (Respondent) File Number(s): 2020/344471 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Application to the Court to modify development consent DA 352.1/2018 granted by the Court on 7 March 2019 (LEC No. 2018/265500) which granted the Applicant consent for demolition of the existing residential building, the use of the subject site as a centre-based child care centre for 68 children, and the construction of a single storey child care centre with associated landscaping, drainage and earthworks at 1806 The Horsley Drive, Horsley Park legally described as Lot 172 in Deposited Plan 13905 (the Site). The Applicant seeks to modify DA 352.1/2018 by increasing the maximum number of children from 68 to 84 (the Proposed Modification). No change is proposed to the recently completed building or the Site, however there will be an additional member of staff and an additional parking space is required resulting in the shed on the southern part of the Site being used for the additional staff parking space. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 April 2021, 17 and 24 May 2021. I presided over the conciliation conference. 3. 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 granting leave to rely on amended plans, upholding the appeal and modifying the development consent subject to conditions. 4. 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 4.55 of the EPA Act to modify a development consent. 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 the terms of s 4.55(2) of the EPA Act to modify a consent, cl 23 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP (Child Care Facilities)) and cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). 5. The parties explained how the jurisdictional prerequisites have been satisfied in a written document titled Statement of Reasons for Upholding the Appeal. 6. Clause 23 of the SEPP (Child Care Facilities) provides that prior to the grant of any development consent for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline in relation to the proposed development. The Statement of Environmental Effects (SEE) lodged with the appeal addresses the relevant provisions of the Child Care Planning Guideline which are accepted by the Respondent as satisfactory. I have reviewed the SEE and I am satisfied that the applicable provisions have been considered satisfactorily. 7. Clause 7 of SEPP 55 requires a consent authority to consider several matters before granting development consent. The original determination of DA 352.1/2018 satisfied the requirements of cl 7 of SEPP 55 as to any potential contamination, and as no physical changes are proposed to the building or the Site, I remain satisfied that the preconditions in cl 7 of SEPP 55 have been met. 8. Section 4.55(2)(a) of the EPA Act requires that a consent authority be satisfied that the proposed development is substantially the same development as the development for which consent was originally granted. The parties explain that the Proposed Modification results in substantially the same development as was granted in DA 352.1/2018 as: 1. No physical changes are proposed to the Site or its building to accommodate the additional 16 children; 2. The purpose for which the buildings are used remains as a child care centre; and 3. The facility remains compliant with planning controls. 1. For these reasons, I am satisfied that the Proposed Modification sought under the appeal will result in a development that is substantially the same to the development for which consent was originally granted under DA 352.1/2018 as required by s 4.55(2)(a) of the EPA Act. 2. The Respondent took the necessary steps as required by s 4.55(2)(c) and placed the Proposed Modification on notification for a 14-day period commencing 11 January 2021 and concluding 25 January 2021. The Respondent received 1 submission in support and 2 submissions objecting to the Proposed Modification. 3. The Respondent is satisfied that the amended plans, additional documents and conditions lodged in relation to the modification application address the issues raised by the objectors in their written submissions (in relation to that application), to the extent that the objectors have raised matters relevant to the subject application and the issues of concern as raised are consistent with the matters raised by the Respondent in its assessment of the application. 4. I note further, that during the inspection of the Site at the commencement of the conciliation conference, resident objectors addressed the parties and the Court and I am satisfied that the submissions have been adequately and appropriately considered. 5. 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 LEC Act. 6. 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. 7. The Court orders: 1. The Applicant is granted leave to rely upon the following amended plans and documents: Plans Prepared by Document Reference Revision Dated Habitation Design and Interiors Architectural Plans, Project Number 16043 I01, I02, I03, I04 I 03/05/2021 Traffix Traffic & Transport Planners Traffic Statement 05/05/2021 1. The appeal is upheld. 2. The application to modify Development Consent No. 352.1/2018 is approved, and the maximum number of children for the centre-based child care centre on the land at 1806 The Horsley Drive, Horsley Park (Lot 172 DP 13905), is increased from 68 children to 84 children. 3. As a consequence of Order 3, Development Consent No. 352.1/2018 is modified in the terms in Annexure "A". 4. Development Consent No. 352.1/2018 as modified by the Court is Annexure "B". ………………………. E Espinosa Commissioner of the Court Annexure A (124745, pdf) Annexure B (214934, pdf) Plans (1951688, 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: 11 June 2021