Land and Environment Court New South Wales Medium Neutral Citation: Austral Projects Group Pty Ltd v Liverpool City Council [2021] NSWLEC 1396 Hearing dates: Conciliation conference on 29 June 2021 Date of orders: 7 July 2021 Decision date: 07 July 2021 Jurisdiction: Class 1 Before: Bradbury AC Decision: The Court orders that: (1) The Applicant is granted leave to amend the development application to rely upon the plans and documents referred to in condition 1 of Annexure A. (2) The Applicant is to pay the Respondent's costs thrown away by the amendment referred to in Order 1 above pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). (3) The appeal is upheld. (4) Development application 131/2019 seeking consent for the demolition of existing structures and construction of a childcare centre with associated basement parking, landscaping and site works is approved subject to the conditions in Annexure A. Catchwords: APPEAL – development application – child care facility – conciliation conference – agreement reached – orders made Legislation Cited: Education and Care Services National Regulations Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7 and 8.10 Environmental Planning and Assessment Regulation 2000, cll 49 and 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy – Educational Establishments and Child Care Facilities 2017, cl 22 State Environmental Planning Policy – Sydney Region Growth Centres 2006, Appendix 8: Liverpool Growth Centres Precinct Plan, cll 2.3, 4.3 and 6.1 State Environmental Planning Policy No 55— Remediation of Land, cl 7 State Environmental Planning Policy No 64 – Advertising and Signage, cl 3.1 and Schedule 1 Texts Cited: NSW Department of Planning and Environment, Child Care Planning Guideline, 2017 NSW Rural Fire Service, Planning for Bushfire Protection, 2019 Category: Principal judgment Parties: Austral Projects Group Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: Dr J Smith (Applicant) R O'Gorman-Hughes (Respondent) Solicitors: Centurion Lawyers Pty Ltd (Applicant) Liverpool City Council (Respondent) File Number(s): 2020/235274 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application (DA) for a child care facility in Austral. The site comprises Lot 14 DP 413602 and is known as 234 Edmondson Avenue, Austral (Land). 2. The DA seeks development consent for the demolition of the existing building and structures on the Land and the construction of a child care facility with associated basement car parking, landscaping and site works (proposed development). As originally lodged, the DA proposed a maximum of 81 child care places but, as amended, this has been reduced to 76. 3. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court's jurisdiction. 4. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act. 5. The Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 29 June 2021. I presided over the conciliation conference. 6. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 28 June 2021 and is supported by an Agreed Statement of Jurisdictional Pre-conditions to the Grant of Development Consent provided by the parties on the same date. The agreement involves the Court exercising the function under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to grant leave to the applicant to amend the DA and for development consent to be granted subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 7. The amendment increases the setback of the proposed child care centre from Edmondson Road from the 6 m originally proposed to 11 m. This addresses the Council's concern that the setback originally proposed was inadequate having regard to the proposed future widening of Edmondson Street to provide a transit boulevard. The amendment also reduces the maximum number of child care places from 81 to 76. I am satisfied that the proposed amendment to the DA is within the scope of the amendment power in cl 55 of the EPA Regulation. The essence of the development the subject of the DA remains the same. 8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 9. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons: 1. The DA was originally made by Childcare Development Groups Pty Ltd with the consent of the then owners of the Land. However, by the time the DA was determined by the Council, the applicant in the appeal, Austral Projects Group Pty Ltd, had become the owner of the Land. The requirements of cl 49 of the EPA Regulation have therefore been met. 2. The appeal was brought pursuant to s 8.7 and was made within the time required by s 8.10 of the EPA Act. 3. The proposed development is for the purpose of a child care facility. The Land is within Zone R3 – Medium Density Residential under the Liverpool Growth Centres Precinct Plan (Precinct Plan) contained in Appendix 8 of State Environmental Planning Policy (Sydney Region Growth Centres) 2006. Development for the purpose of a child care facility is permissible with development consent on land within that zone. 4. Clause 2.3(2) of the Precinct Plan provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. In determining the DA, I have had regard to the objectives of the R3 Medium Density Residential zone in the Precinct Plan. One of the zone objectives is to enable land uses that provide facilities or services to meet the day to day needs of residents and the proposed development is consistent with that objective. 5. The proposed development complies with the applicable development standard in the Precinct Plan relating to building height (cl 4.3). The applicable maximum building height is 12 m and the maximum height of the proposed development is 4.6 m. 6. Clause 6.1 of the Precinct Plan provides that the consent authority must not grant development consent to development on land to which the Precinct Plan applies unless it is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required. The Council's Delegated Assessment Report prepared by its Senior Development Planner, Mr Kevin Kim and dated 24 April 2020 (Council's Assessment Report) indicates that comments were received from Sydney Water which confirm that arrangements will be made to make water supply and sewer available when required. Proposed consent conditions will ensure that essential public utility infrastructure will be available when required. 7. Part 3 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP) applies to the proposed development. Clause 22 of the Child Care SEPP provides that development consent must not be granted to development for the purpose of a centre-based child care facility if: 1. the floor area of the building or place does not comply with reg 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations (the Care Services Regulations), or 2. the outdoor space requirements for the building or place do not comply with reg 108 (outdoor unencumbered space requirements) of the Care Services Regulations. 1. Reg 107 of the Care Services Regulations requires that, for each child being educated and cared for, a child care facility must have at least 3.25 m2 of unencumbered indoor space. 2. Reg 108 of the Care Services Regulations requires that, for each child being educated and cared for, a child care facility must have at least 7 m2 of unencumbered outdoor space. 3. Plan A1.08 (Issue C) prepared by Creative Drafting Services dated 4 June 2018 shows the total area of unencumbered indoor space is 259 m2 and the total area of unencumbered outdoor space is 557.5 m2. With the proposed maximum of 76 places, this means that 3.4 m2 of unencumbered indoor space and 7.3 m2 of unencumbered outdoor space will be provided for each child being educated and cared for. I am therefore satisfied that the proposed development satisfies the requirements of regs 107 and 108 and consequently that the concurrence of the Regulatory Authority is not required. 4. Clause 7 of State Environmental Planning Policy No 55—Remediation of Land applies to the Land as the DA proposes a change of use of the Land and the land has previously been used for agricultural/horticultural purposes that may have caused contamination. A Site Investigation and Remedial Works Action Plan, prepared by Martens & Associates Pty Ltd in March 2019, accompanied the DA and concluded that the site can be satisfactorily remediated for the development and a condition of consent will require the development to be carried out in accordance with that plan. The Council's Assessment Report concludes, and I accept, that the Land is suitable for the proposed development. 5. Clause 8 of the State Environmental Planning Policy No 64-Advertising and Signage (SEPP 64) provides that a consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied— 1. that the signage is consistent with the objectives of that Policy as set out in cl 3(1)(a), and 2. that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1 of SEPP 64. 1. The Council's Assessment Report concludes, and I accept, that the proposed signage is compatible within the residential area, is positioned in an appropriate position and is of a high-quality design and therefore consistent with the objectives of SEPP 64. The Council's Assessment Report also includes an assessment of the proposed signage against the criteria in Schedule 1 of SEPP 64 and I am satisfied, having regard to that assessment, that the proposed development satisfies those criteria. 2. The Land is shown on the Liverpool Bushfire Prone Land Map to be wholly within category 3 vegetation buffer zone. Section 4.14 of the EPA Act relevantly provides that development consent cannot be granted for the carrying out of development for any purpose on bush fire prone land unless the consent authority is satisfied that the development conforms with the specifications and requirements of the Rural Fire Service's 'Planning for Bushfire Protection' 2019 (relevant specifications and requirements). The applicant has submitted a Bushfire Hazard Assessment Report prepared by Control Line Consulting dated 10 May 2021 which contains recommendations intended to ensure that the proposed development will be carried out in accordance with the relevant specifications and requirements. The proposed conditions of consent require those recommendations to be implemented and I am therefore satisfied that the development conforms with the relevant specifications and requirements. 3. The Council's Statement of Facts and Contentions indicates that the DA was notified by the Council for a period of 14 days from 26 March 2019 to 10 April 2019 but that no submissions were received. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required by 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 to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders that: 1. The Applicant is granted leave to amend the development application to rely upon the plans and documents referred to in condition 1 of Annexure A. 2. The Applicant is to pay the Respondent's costs thrown away by the amendment referred to in Order 1 above pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). 3. The appeal is upheld. 4. Development application 131/2019 seeking consent for the demolition of existing structures and construction of a childcare centre with associated basement parking, landscaping and site works is approved subject to the conditions in Annexure A. ………………………… A Bradbury Acting Commissioner of the Court Annexure A (377785, pdf) Plans (7591206, 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: 07 July 2021