Land and Environment Court New South Wales Medium Neutral Citation: Raland Construction Pty Ltd v Penrith City Council [2022] NSWLEC 1376 Hearing dates: Conciliation conference on 30 May 2022 and 21 June 2022. Date of orders: 18 July 2022 Decision date: 18 July 2022 Jurisdiction: Class 1 Before: Harding AC Decision: The Court Orders that: (1) In accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent's costs thrown away, as a result of the amendment, in the sum of $3,000. (2) The Appeal is upheld. (3) Development Application No. DA21/0983, for the demolition of the existing dwellings and associated structures, lot consolidation and the construction and operation of a two (2) storey centre based child care facility for one-hundred and twenty (120) children including basement car parking spaces and associated landscaping, tree removal and drainage, on land legally described as Lot 14 in DP30684, Lot 15 in DP30684 and Lot 16 in DP30684 and known as 1-5 Gordon Street, St Marys, NSW, is determined by the grant of Development Consent subject to the conditions set out in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – child care centre – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Penrith Local Environmental Plan 2010, cl 7.7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Resilience and Hazards), cl 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.118, 3.23 Texts Cited: Department of Planning & Environment NSW, 'Child Care Planning Guideline', August 2017 Penrith Development Control Plan 2014 Category: Principal judgment Parties: Raland Construction Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: M Staunton (Applicant) C Campbell (Solicitor) (Respondent) Solicitors: Swaab (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2022/65887 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Raland Construction Pty Ltd (the Applicant) against the Penrith City Council's (the Respondent) deemed refusal of Development Application No. DA21/0983 which was lodged on 20 December 2021. 2. The development application seeks development consent for the demolition of existing structures, tree removal, amalgamation of three (3) separate land parcels and the construction of a two (2) storey 120 place Centre Based Child Care Facility with basement parking. The proposed development is to be undertaken on land legally described as Lot 14 in DP30684, Lot 15 in DP30684 and Lot 16 in DP30684 and known as 1-5 Gordon Street, St Marys NSW 2760. 3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 30 May and 21 June 2022. 4. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to conditions. 5. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court. The applicant lodged the amended application on the NSW Planning portal on 21 June 2022 and these amendments were accepted by Council. The amended application included, but is not limited to, the following relevant amendments: 1. The provision of a pitched roof form to replace the prior flat roof element. 2. Additional cladding and wall recesses to break up external walls and to articulate the façade to the east and south. 3. The schedule of finishes has also been updated to include materials that are less in contrast and adopt more natural tones. 4. Acoustic barrier fencing on the boundaries to the Great Western Highway and Fleming Street has been recessed 500mm from the boundary with landscaping in front of this to soften the appearance of the fencing. 5. Meeting room relocated and store, reception/sign adjusted to facilitate a notch in the building at the ground floor. 6. Driveway ramp redesigned in accordance with amended engineering plans to provide suitable ramp grades and access arrangements. 7. An awning at the entrance has been added to further articulate the southern façade. 8. The proposed cubby house has been relocated away from neighbouring properties. 1. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions. 2. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following: 1. Pursuant to the Penrith Local Environmental Plan 2010 (PLEP 2010), the subject site is zoned R3 Medium Density Residential. Centre-based child care facilities are permissible, with development consent, in the R3 zone. In determining the development application, I have had regard to the objectives of the zone. 2. The proposed development does not contravene a development standard in the PLEP 2010, nor in any other applicable environmental planning instrument. 3. The requirements of cl 7.7 of PLEP 2010, that require the consent authority to be satisfied that certain services will be met, has been adequately considered and satisfied. Appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A. 4. The development application was advertised and notified for 14 days from 24 January 2022 to 7 February 2022. The development application was also notified in the local newspaper on 20 January 2022. No submissions were received in response to the notification period. 5. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 6. Consideration has been given to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The respondent has considered the removal of two trees against the Biodiversity and Conservation SEPP as well as control D.2(a)(iii) of Part C2 of the Penrith Development Control Plan 2014. The parties agree to the removal of the two trees and also agree that required considerations in the Biodiversity and Conservation SEPP have been met. As a result of these deliberations, I am also satisfied that the Biodiversity and Conservation SEPP requirements have been met. 7. Consideration has been given to whether the Site is contaminated as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The applicant provided a Preliminary Site Investigation Report prepared by Geotechnical Consultants Australia dated 31 August 2021, indicating that the Site is suitable for the proposed development. Appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A. 8. The required consideration has been given to State Environmental Planning Policy (Transport and Infrastructure) 2021 (ISEPP). The property has frontage to a classified road and therefore triggers considerations pursuant to cl 2.118 in Chapter 2 - Infrastructure. The applicant provided a traffic assessment, including a Supplementary Traffic and Parking Advice prepared by McLaren Traffic Engineering dated 17 May 2022, which demonstrated the suitability of the development in respect to the ISEPP. It is noted that vehicular access to the Site is provided from Gordon Street which is not a classified road. There is no vehicular access to the Site provided from the Great Western Highway. I am therefore satisfied that the Transport aspects of the ISEPP have been met. 9. The ISEPP, in Chapter 3 - Educational Establishments And Child Care Facilities, also has various requirements for consideration in respect to child care facilities. The parties agree that the development application has considered the relevant controls, including the Child Care Planning Guideline, as required under cl 3.23 of the ISEPP. I am therefore satisfied that the Child Care aspects of the ISEPP have been met. 1. 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' agreement. 2. 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 EPA Act. Orders 1. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. In accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent's costs thrown away, as a result of the amendment, in the sum of $3,000. 2. The appeal is upheld. 3. Development Application No. DA21/0983, for the demolition of the existing dwellings and associated structures, lot consolidation and the construction and operation of a two (2) storey centre based child care facility for one-hundred and twenty (120) children including basement car parking spaces and associated landscaping, tree removal and drainage, on land legally described as Lot 14 in DP30684, Lot 15 in DP30684 and Lot 16 in DP30684 and known as 1-5 Gordon Street, St Marys, NSW, is determined by the grant of Development Consent subject to the conditions set out in Annexure "A". ………………………. Stuart Harding Acting Commissioner of the Court Annexure A (286812, 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: 18 July 2022