Land and Environment Court New South Wales Medium Neutral Citation: Halwe v Penrith City Council [2021] NSWLEC 1390 Hearing dates: Conciliation conference on 14 May 2021 and 7 June 2021 Date of orders: 06 July 2021 Decision date: 06 July 2021 Jurisdiction: Class 1 Before: Clay AC Decision: See judgment at [12] Catchwords: DEVELOPMENT APPLICATION – Alterations and additions to existing child care centre – increase in capacity – agreement between the parties – orders Legislation Cited: Education and Care Services National Regulations (NSW), cll 25, 107, 108 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Penrith Local Environmental Plan 2010 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cl 22 State Environment Planning Policy No 55 – Remediation of Land, cl 7 Category: Principal judgment Parties: Suzanne Halwe (Applicant) Penrith City Council (Respondent) Representation: Counsel: P Saab (Solicitor) (Applicant) M Pearce (Solicitor) (Respondent) Solicitors: Macquarie Lawyers (Applicant) Penrith City Council (Respondent) File Number(s): 2021/47081 Publication restriction: Nil 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 refusal by Penrith City Council (Respondent) of Development Application DA20/0009 for the partial demolition of existing structures and alterations and additions to existing childcare centre and increase in capacity by an additional 21 children, with associated parking, drainage and landscaping at Lot 2 in Deposited Plan 250212 and Lot 6 in Deposited Plan 250214 known as 14 Bennett Road and 2 Shane Street Colyton (Site). 2. On 14 May 2021 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 18 June 2021, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle. 5. The amendments to the plans, together with additional material provided by the Applicant to the Council addressed the Council's contentions. 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. 8. I note: 1. The proposed development is permissible in its zone –the R2 Low Density Residential Zone under Penrith Local Environmental Plan 2010 (PLEP 2010). 2. The proposed development does not contravene any development standards in PLEP 2010. 3. Clause 7 of State Environment Planning Policy No 55 – Remediation of Land (SEPP 55) requires a consent authority to consider the contamination and remediation of land when determining a development application. 4. The Applicant has provided a Statement under reg 25(1)(d) of the Education and Care Services National Regulations (National Regulations) which confirms the Site has been used for residential purposes in the past and that the Site is suitable for use as a child care centre. 5. There is no known contamination of the Site, no further investigation of the Site is warranted, and the Site is suitable for the proposed use. 6. The Court is therefore satisfied that cl 7 of SEPP 55 has been adequately addressed. 7. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP 2017) applies to the DA. 8. Concurrence from the Department of Education under clause 22(2) of the SEPP 2017 is not required because the DA complies with: 1. cl 107 of the National Regulations (indoor unencumbered space requirements); and 2. cl 108 of the National Regulations (outdoor unencumbered space requirements). 1. Having considered the material provided to the Court 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. 2. 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. 3. 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. 4. The Court orders: 1. The applicant is granted leave to amend Development Application DA20/0009 and to rely upon the following amended plans and documents: Drawing No. Drawing Name Prepared by Revision Date 1B Site Plan Cynstate Building Solutions E 09/06/2021 2D Ground Floor Plan Cynstate Building Solutions D 09/06/2021 3C Elevations Cynstate Building Solutions C 10/06/2021 4B Elevation and Section Cynstate Building Solutions B 30/04/2021 2019/047/1 Drainage Details and Notes Gerard Balkin C 28/05/2021 2019/047/2 Drainage Plan Gerard Balkin C 28/05/2021 5431 Landscape Plan Monaco Designs PL E 02/06/2021 - Plan of Management - 2 09/06/2021 20200494.1/1006A/R2/AW Development Application Acoustic Assessment Acoustic Logic 2 10/06/2021 1. The appeal is upheld. 2. Development Application No. DA20/0009 (as amended) for the partial demolition of existing structures and alterations and additions to existing childcare centre and increase in capacity by an additional 21 children, with associated parking, drainage and landscaping is approved subject to conditions at Annexure "A". 3. The Applicant pay the Respondent's costs thrown away in the amount of $3,500 within 28 days pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). ………………………… P Clay Acting Commissioner of the Court Annexure A (285822, pdf) Plans (1264542, 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: 06 July 2021