Land and Environment Court New South Wales Medium Neutral Citation: Eskaroos v Wollongong City Council [2022] NSWLEC 1364 Hearing dates: Conciliation conference on 18 May 2022, 9, 22 and 29 June 2022 Date of orders: 13 July 2022 Decision date: 13 July 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development Application No. DA-2021/815 lodged on 27 July 2021, as amended, for the demolition of two dwelling houses and ancillary structures and the construction of a two-storey childcare centre including at grade parking at 127-129 Kanahooka Road, Kanahooka is approved subject to the conditions of consent in Annexure "A". (3) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent as agreed that have been thrown away as a result of the amendment of the application for development consent. The Applicant agrees to pay the Respondent's costs of $3,770.00 within 28 days of the date of Judgment. Catchwords: DEVELOPMENT APPEAL – child care centre - conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 23, 24A, 25, 26 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 4.4, 4.6 Wollongong Local Environment Plan 2009, cll 2.7, 4.3, 4.4, 5.10, 7.1, 7.5, 7.6 Texts Cited: NSW Department of Planning and Environment, Child Care Planning Guideline (August 2017) Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Samuel Eskaroos (First Applicant) Maryanne Eskaroos (Second Applicant) David Fanous (Third Applicant) Natalie Fanous (Fourth Applicant) Wollongong City Council (Respondent) Representation: Counsel: G Christmas (Solicitor) (Applicants) J Reilly (Solicitor) (Respondent) Solicitors: Apex Planning and Environmental Law (Applicants) Wollongong City Council (Respondent) File Number(s): 2022/29148 Publication restriction: No Judgment 1. COMMISSIONER: The nature of proceedings: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application 2021/815 seeking development consent for the demolition of two dwelling houses and ancillary structures (including the removal of 27 trees) and the construction of a two-storey childcare centre including at grade parking (the Proposed Development) at 127-129 Kanahooka Road, Kanahooka legally described as Lot 6 and 7 in DP 216383 (the Site). 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 has been held on 18 May 2022, 9, 22 and 29 June 2022. I have presided over the conciliation conference. 3. As a result of 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 upholding the appeal and granting development consent to the development application 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 4.16 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 identified the jurisdictional prerequisites of relevance in these proceedings to be contained in various provisions of the Wollongong Local Environmental Plan 2009 (WLEP) and the parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement which I summarise below. 6. The Site is zoned R2 - Low Density Residential under the relevant Land Zoning Map of the WLEP. Development of the Site for the purpose of "centre-based child care facilities" is permissible in the zone with consent and demolition is permitted with consent pursuant to cl 2.7 of the WLEP 2009. 7. The Proposed Development complies with the 1. Maximum 9m height of buildings development standard (cl 4.3 of the WLEP); and 2. Maximum 0.5:1 floor space ratio development standard (cl 4.4 the WLEP). 1. The Site is adjacent to heritage items requiring consideration of cl 5.10 of the WLEP and the consent authority must consider the effect of the Proposed Development on the heritage significance of the item concerned (cl 5.10(4) of the WLEP). The Parties have assessed, and the Court can be satisfied, that the effect of the Proposed Development on the significance of the heritage item has been considered. The Parties agree that neither a heritage management document pursuant to clause 5.10(5) of the WLEP or a heritage conservation management plan pursuant to cl 5.10(6) of the WLEP are required to be prepared in the circumstances of this case. 2. The parties agree that the requirements of cl 7.1 of the WLEP are met, namely that 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 it is required. 3. The Parties agree that Site is in Class 5 soils but that the development does not require a plan to be prepared (cl 7.5 of the WLEP). 4. The parties agree that in relation to cl 7.6 of the WLEP relating to earthworks, certain matters in relation to earthworks such as impact on environmental functions and processes, neighbouring uses or heritage items and features surrounding land have been considered. 5. Chapter 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) applies to the Site under s 4.4 of the Hazards SEPP and s 4.6 of the Hazards SEPP requires a consent authority to consider whether the land is contaminated. The Applicant has provided a Preliminary Site Investigation and a Peer Review of that Preliminary Investigation filed with the Class 1 Application. The Respondent is satisfied that the Site can be remediated in accordance with the recommendations in those reports and can be made suitable for the purpose for which the development is proposed. 6. The State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP) applies to the Proposed Development. Clause 23 requires the consent authority to take into consideration any applicable provision of the Child Care Planning Guideline in relation to the Proposed Development. The parties have considered the Guideline and have determined the development to be satisfactory. The Proposed Development complies with the floor space ratio development standard in cl 24A of the Child Care SEPP and the non-discretionary development standards in cl 25. The parties have also considered an applied cl 26 of the Child Care SEPP in relation to the non-applicability of Control 7.3.2.5 of the Wollongong Development Control Plan 2009 in relation to accommodating children on the first floor. 7. 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. I adopt the reasons given by the parties. 8. 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. Notations: 1. The Court notes: 1. the Respondent Council, as the relevant consent authority, has agreed under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application as follows; Architectural Plans prepared by Archizen Architects Issue C dated 21 June 2022: Plan No. Plan Type LEC01 Site, demolition & analysis plan LEC02 Ground floor plan LEC03 Upper floor plan LEC04 Elevation: north-east LEC05 Elevation: south-east LEC06 Elevation: south-west LEC07 Elevation: north-west LEC08 Section: a-a LEC09 Section: b-b LEC10 Streetscape elevation LEC11 Shadows @ Jun 21 LEC12 Shadows @ Mar/Sept 21 LEC13 Shadows @ Dec 21 LEC14 GFA + landscape diagrams LEC15 Ground Floor: Key Plan LEC16 Upper Floor: Key Plan Landscape plans prepared by Tessa Rose Playspace and Landscape Design Revision 2: Plan No. Plan Type Date 1/4 Final Tree and Contour Plan 21-06-22 2/4 Final Ground Floor 22-06-22 Playspace/ landscape – plants 3/4 Final Ground Floor Playspace / landscape – surfaces 22-06-22 4/4 Final Upper Floor 21-06-22 Playspace / landscape Sample Board 22-06-22 Sample Board 22-06-22 Stormwater Plans prepared by NY Civil Engineering Issue C dated 22 June 2022: Plan No. Plan Type D1 Details, Notes & Legend D2 Stormwater Management Plan D3 First Floor Plan D4 Overland Flow Catchment Plan D5 Stormwater Details D6 Stormwater Details D7 Sediment Control Plan D8 Sediment Control Details Plan of Management (v2) prepared by Ology Pty Ltd dated May 2022. Aboricultural Impact Assessment prepared by Susan Stratton Landscape Architects Pty Ltd dated 22 June 2022 (v3). Acoustic Assessment Report prepared Acoustic Dynamics Pty Ltd dated 8 June 2022. Photomontage prepared by Rock Hunter Australia Pty Ltd. 1. the Applicant has uploaded the amended development application on the NSW Planning Portal on 27 June 2022; 2. the amended development application DA-2021/815 has been filed with the Court on 29 June 2022. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development Application No. DA-2021/815 lodged on 27 July 2021, as amended, for the demolition of two dwelling houses and ancillary structures and the construction of a two-storey childcare centre including at grade parking at 127-129 Kanahooka Road, Kanahooka is approved subject to the conditions of consent in Annexure "A". 3. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent as agreed that have been thrown away as a result of the amendment of the application for development consent. The Applicant agrees to pay the Respondent's costs of $3,770.00 within 28 days of the date of Judgment. ………………………. E Espinosa Commissioner of the Court Annexure A (266395, 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: 13 July 2022