Land and Environment Court New South Wales Medium Neutral Citation: Mike & Shan Pty Ltd v City of Canada Bay Council (No 2) [2022] NSWLEC 1117 Hearing dates: 3-5 November 2021 Date of orders: 02 March 2022 Decision date: 02 March 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant's written request to vary the height development standard at clause 4.3 of the Canada Bay Local Environmental Plan 2013, in accordance with cl 4.6 of the Canada Bay Local Environmental Plan 2013 is upheld. (2) The Applicant's written request to vary the floor space ratio development standard at clause 4.4 of the Canada Bay Local Environmental Plan 2013, in accordance with cl 4.6 of the Canada Bay Local Environmental Plan 2013 is upheld. (3) The Applicant is to pay the Repondent's costs thrown away as assessed or agreed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. (4) The appeal is upheld. (5) Development consent for Development Application No DA2020/0161 for a centre-based childcare facility accommodating 159 children, requiring alterations and additions to the Reservoir and the construction of a new building to the east of the site over basement car parking on Lots 13, 14, 15 and 16 in DP 455626 in Drummoyne is granted, subject to conditions at Annexure A. (6) All exhibits are returned except for Exhibits A, B and 9. Catchwords: DEVELOPMENT APPLICATION – Impact of proposed development on State heritage item – Bourketown Heritage Conservation Area – adaptive reuse of water reservoir – centre-based child care facility - child care planning guidelines - Legislation Cited: Canada Bay Local Environmental Plan 2013, cll 4.3, 4.4, 4.6 Environmental Planning and Assessment Act 1979, ss 4.16, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Category: Principal judgment Parties: Mike & Shan Pty Ltd (Applicant) City of Canada Bay Council (Respondent) Representation: Counsel: T To (Applicant) S Puckeridge (Solicitor) (Respondent) Solicitors: Dentons (Applicant) Lindsay Taylor (Respondent) File Number(s): 2020/306306 Publication restriction: No Judgment 1. COMMISSIONER: In a judgment given on 20 January 2022, the Court gave its decision Mike & Shan Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1015 in respect of Development Application No DA2020/0161 seeking development consent for a centre-based childcare facility accommodating 159 children, requiring alterations and additions to the Reservoir and the construction of a new building to the east of the site over basement car parking on Lots 13, 14, 15 and 16 in DP 455626 in Drummoyne. 2. In my preliminary judgment, I determined that the development the subject of the development application warrants the grant of consent in accordance with s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act), subject to conformance with certain directions made by the Court. 3. On 10 February 2022, the parties complied with the Court's directions by lodging the amended application on the NSW Planning Portal. 4. On 15 February 2022, the parties filed with the Court a copy of the Amended Remedial Action Plan, and conditions of consent incorporating the Court's directions at [183] – [199] of the preliminary judgment. 5. As the parties have now complied with the directions at [200] of my preliminary judgment of 20 January 2022, it is appropriate to make orders granting development consent in accordance with s 4.16 of the EPA Act. Orders 1. The Court notes that: 1. The Respondent as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. DA2020/0161 (Amended DA). 2. The Applicant has lodged the amended application on the NSW Planning Portal. 1. The Court orders that: 1. The Applicant's written request to vary the height development standard at clause 4.3 of the Canada Bay Local Environmental Plan 2013, in accordance with cl 4.6 of the Canada Bay Local Environmental Plan 2013 is upheld. 2. The Applicant's written request to vary the floor space ratio development standard at clause 4.4 of the Canada Bay Local Environmental Plan 2013, in accordance with cl 4.6 of the Canada Bay Local Environmental Plan 2013 is upheld. 3. The Applicant is to pay the Respondent's costs thrown away as assessed or agreed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. 4. The appeal is upheld. 5. Development consent for Development Application No DA2020/0161 for a centre-based childcare facility accommodating 159 children, requiring alterations and additions to the Reservoir and the construction of a new building to the east of the site over basement car parking on Lots 13, 14, 15 and 16 in DP 455626 in Drummoyne is granted, subject to conditions at Annexure A. 6. All exhibits are returned except for Exhibits A, B and 9. ………………….. T Horton Commissioner of the Court (Annexure A) (681406, 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: 02 March 2022