Land and Environment Court New South Wales Medium Neutral Citation: Telopea CCC Pty Ltd v Canterbury-Bankstown Council [2022] NSWLEC 1129 Hearing dates: Conciliation conference on 9, 16 February 2022 and 3 March 2022 Date of orders: 11 March 2022 Decision date: 11 March 2022 Jurisdiction: Class 1 Before: Walsh C Decision: See Orders at [20]. Catchwords: DEVELOPMENT APPLICATION conciliation conference – agreement between the parties – orders Legislation Cited: Bankstown Local Environmental Plan 2015, cll 2.7, 6.2 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 55, 92, 93 Great Metropolitan Regional Environmental Plan No 2. Georges River Catchment, cll 8, 9 Land and Environment Court Act 1979, ss 34, 39 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: Bankstown Development Control Plan 2015 Child Care Planning Guideline, NSW Department of Planning and Environment, August 2017 Category: Principal judgment Parties: Telopea CCC Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: M Staunton (Applicant) M Bonanno (Solicitor)(Respondent) Solicitors: Mills Oakley (Applicant) Canterbury Bankstown Council (Respondent) File Number(s): 2021/275338 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Canterbury Bankstown Council (Council) of Development Application No. 631/2021 (DA) seeking consent for demolition of existing structures and the construction of a two-storey centre-based child care facility for 74 children with basement carparking at 31 Telopea Street Punchbowl, legally described as Lot 9 Section A in DP 5720 (site). 2. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act) which was held on 9 and 16 February 2022, and 3 March 2022. I presided over the conciliation conference. After the conciliation conference, and with certain amendments to applicant's plans, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 3. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 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 4.16 of the EPA Act to grant consent to the development application. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties outlined jurisdictional matters of relevance (including through a jurisdictional statement filed 4 March 2022) and explained how they have been or could be satisfied. Below I give consideration to the jurisdictional issues, mindful of this statement. Bankstown Local Environmental Plan 2015 1. The site is zoned R2 Low Density Residential, under Bankstown Local Environmental Plan 2015 (BLEP), with centre-based childcare facilities permitted with consent in this zone. I note I have had regard to the relevant zone objectives. Demolition is permissible under cl 2.7. 2. I note and accept the advice of the parties that the amended proposal complies with the height and floor space ratio controls applicable under BLEP. 3. In regard to earthworks, and cl 6.2, I note the advice of the parties referring me to the Statement of Environmental Effects accompanying the Class 1 Application filed 27 September 2021, which responded to this topic. I have given consideration to the listed matters at cl 6.2(3). Great Metropolitan Regional Environmental Plan No 2. Georges River Catchment 1999 (Georges River Catchment REP) 1. The Georges River Catchment REP applies to the site. I have reviewed and taken into account both the "general principles" (cl 8) and "specific planning principles" (cl 9). I note the advice of the parties that amended stormwater management plans, together with the conditions of consent, will satisfactorily protect the waters of the Georges River system in terms of both stormwater quantity and quality. State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) 1. SEPP 55 applies to the Site. Clause 7 is relevant. I accept the advice of the parties that the site has been used for residential purposes since the land was originally subdivided, and as such is unlikely to be contaminated, and no further analysis of contamination is required. State Environmental Planning Policy (Education Establishments and Child Care Facilities) 2017 (Education SEPP) 1. The Education SEPP applies. I accept the advice of the parties that the development complies with the minimum indoor and outdoor unencumbered play areas. In accordance with cl 23, I have taken into consideration the Childcare Planning Guidelines. I note the advice of the parties that the amended plans comply with the relevant provisions of the Education SEPP and the proposal is consistent with the Childcare Planning Guidelines. Other provisions of s 4.15(1) of the EPA Act 1. The parties have provided me with advice in regard to the provisions of Bankstown Development Control Plan 2015. I have considered this advice and in turn believe the requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met. 2. I accept the parties' submissions that the requirements of cll 92 and 93 of the Environmental Planning and Assessment Regulation 2000, to the extent they are relevant, have been taken into account and addressed. 3. I also accept the parties' submissions, as included in the jurisdictional statement filed 4 March 2022, and generally, in regard to the attention to provisions relating to likely impact of the proposal and site suitability. 4. The parties advise the proposal was notified in accordance with requirements and 18 objecting submissions were received in regard to the proposal. Regard has been had to these submissions. Procedural 1. The solicitors for the applicant have received instructions to change the applicant entity details in these proceedings and evidence has been presented to the Court that the registered proprietor of the site (being the amended Applicant entity) is the sole director and secretary of the original applicant entity. The parties have requested that I make orders to endorse this change to the applicant details. I accept the agreed advice of the parties that the Court is empowered under s 39(2) of the LEC Act to make orders to this effect. Conclusions 1. As jurisdictional requirements are met, the parties' decision is a decision that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. Orders 1. The Court notes that: 1. the Applicant has amended Development Application No DA/631/2021 with the agreement of Canterbury-Bankstown Council (pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000) as the relevant consent authority to incorporate the following amended plans and documents: i. Architectural Plans Rev E, prepared by Place Studio dated 10 February 2022; ii. Amended Plan of Management v4, prepared by Early Education Solutions dated 27 January 2022; 2 3461-4881-9224, v. 1 iii. Amended Acoustic Report, prepared by the Acoustic Group dated 5 February 2022; iv. Amended Traffic & Paring Impact Assessment, prepared by McLaren Traffic dated 11 February 2022; v. Amended stormwater plans Rev C, prepared by SGC dated 28 January 2022; and vi. Amended Landscape Plans Rev B, prepared by Site Image dated 7 February 2022. ("Amended Development Application"). 1. the Amended Development Application has been lodged on the NSW planning portal on 3 March 2022. 2. the Applicant has subsequently filed the Amended Development Application with the Court on 3 March 2022. 1. The Court Orders that: 1. Pursuant to section 39(2) of the Land and Environment Court Act 1979, the Applicant entity details on the Class 1 Application form be varied in accordance with Amended Class 1 Application form in Annexure B to this judgement. 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that are thrown away as a result of the Court allowing the Applicant to file the Amended Development Application, in the amount of $4,000. 3. The Appeal is upheld. 4. Development Application No DA/631/2021 for demolition of existing structures and construction of a two-storey centre-based childcare facility for 74 children with basement parking at 31 Telopea Street, Punchbowl, NSW 2196 is approved subject to the conditions in Annexure A to this judgement. …………………… P Walsh Commissioner of the Court Annexure A.pdf Annexure B.pdf ********** Amendments 25 March 2022 - Pursuant to UCPR r 36.17, changes made to correct: (1) erroneous reference details to four plans listed within Condition 1 to Annexure A, as referenced in Order 4, and (2) an incorrect detail contained in the header to Annexure A. 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: 25 March 2022