Land and Environment Court New South Wales Medium Neutral Citation: Clutch Westmead Pty Ltd v Cumberland Council [2022] NSWLEC 1438 Hearing dates: Conciliation conference: 28 July 2022 Date of orders: 22 August 2022 Decision date: 22 August 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. DA2021/0594 for the construction of a four-storey mixed use building comprising a centre based child care facility, business premises and a cafe at 73 Hawkesbury Road, Westmead (Lot 11 in Deposited Plan 311932), subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPLICATION – mixed use development in B1 Neighbourhood Centre zone – centre-based childcare facility – business premises – conciliation conference – agreement between the parties - orders Legislation Cited: Cumberland Local Environmental Plan 2021, cll 1.8A Education and Care Services National Regulations, regs 107, 108 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Holroyd Local Environmental Plan 2013 cll 4.3, 4.4, 6.2, 6.3, 6.7, 6.8 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 10.2, 10.18, 10.19, 10.20, 10.21, 10.22, 10.23, 10.24 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 3.22, 3.23, 3.26 Texts Cited: NSW Department of Planning and Environment, Child Care Planning Guidelines (August 2017) Cumberland Development Control Plan 2021 Holroyd Development Control Plan 2013 Category: Principal judgment Parties: Clutch Westmead Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Counsel: M Staunton (Applicant) Solicitors: Jaku Legal (Applicant) C McFadzean, Cumberland Council (Respondent) File Number(s): 2021/351027 Publication restriction: Nil Judgment 1. COMMISSIONER: A mixed use development is proposed on land located at 73 Hawkesbury Road, Westmead. The proposed development was the subject of Development Application No. 2021/0594, lodged with Cumberland Council (the Respondent) on 21 October 2021, and which is yet to be determined. 2. On 10 December 2021, the Applicant in these proceedings, Clutch Westmead Pty Ltd (the Applicant), filed a Class 1 appeal with the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The matter was originally listed before me for hearing on 28 July 2022, however, at the commencement of the proceedings, the parties advised the Court of certain amendments to the plans and other documents that resolved the contentions in dispute. 4. The matter was re-allocated to me for conciliation under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 July 2022, and at which I presided. 5. At the conciliation conference, the parties reached agreement on 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. 6. A signed agreement, prepared in accordance with s 34(10) of the LEC Act, was filed with the Court on 28 July 2022. 7. The parties asked me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development, subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 8. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me, during the conference, how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [24]. 9. At the outset I note the development application at [1] was lodged prior to the gazettal of the Cumberland Local Environmental Plan 2021 (2021 LEP) on 5 November 2021, which contains a savings provision at cl 1.8A, that provides the application is to be assessed as if the 2021 LEP had not commenced, and by reference to the Holroyd Local Environmental Plan 2013 (HLEP). 10. In any event, under the 2021 LEP, the site continues to be within the B1 Neighbourhood Centre zone, in which restaurants and cafes, centre-based childcare facilities and business premises remain permissible, with consent, and in which development standards for building height of 17m and floor space ratio (FSR) of 2:1 remain unchanged. 11. Relatedly, on the day of the gazettal of the 2021 LEP, the Cumberland Development Control Plan 2021 also came into force. However, in accordance with clause 1.1.4 of Part A - Introduction, the development application is to be assessed under the provisions of the Holroyd Development Control Plan 2013 (HDCP). 12. For the reasons that follow, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision, as follows: 1. The site is located within the B1 Neighbourhood Centre zone, according to the HLEP in which the proposed uses comprising café, centre-based childcare facilities and business premises are permitted with consent. 2. The objectives of the B1 zone are: • To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. • To enable residential development that is well-integrated with, and promotes, community activity. 1. The proposed development complies with the height standard of 17m applicable to the site under cl 4.3 of the HLEP, and has a FSR that complies with the FSR at cl 4.4 of the HLEP. 2. On the basis of the Stormwater plans prepared by Capital Engineering Consultants, dated 22 July 2022, the Geotechnical Report prepared by Geotechnique Pty Ltd dated 5 October 2021, and the Landscape Plans prepared by Canvas Landscape architects dated 25 July 2022, I have considered earthworks for which development consent is required. I conclude that the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, based on those matters at cl 6.2(3) of the HLEP. 3. Relatedly, and on the basis of plans and other documents noted above, I am also satisfied that the development, to the extent it is practicable, achieves the requirements at cl 6.7(2) of the HLEP in relation to stormwater management. 4. As the site is located in an existing urban area identified as a B1 Neighbourhood Centre, and certain essential services are provided for in the plans and other documents listed at Condition 2 of the agreed conditions of consent, I am satisfied that the essential services described at cl 6.3(1) of the HLEP will be made available when required. 5. The land is identified on the Salinity Map at cl 6.8(2) of the HLEP as having the potential for moderate salinity. I am satisfied that the development is designed, sited and will be managed to avoid any adverse environmental impact by virtue of conditions of consent at conditions 48, 71 and 92. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. As the proposed development is within 5m of a power pole and overhead electricity power line, s 2.48(1)(b)(iii) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) requires the electricity supply authority be notified in writing, and for any response to be taken into consideration. On the basis of written evidence, I am satisfied that the requirements of s 2.48(2) of the Transport and Infrastructure SEPP have been met. 2. Consistent with s 3.23 of the Transport and Infrastructure SEPP, I have considered the Child Care Planning Guideline and, assisted by the agreement between the parties' experts, I conclude the applicable provisions are met by the proposed development, including those non-discretionary standards at s 3.26. 3. In particular, the proposal complies with those non-discretionary standards invoking cll 107 and 108 of the Education and Care Services National Regulations, and so the concurrence of the Regulatory Authority is not required to be sought under s 3.22 of the Transport and Infrastructure SEPP. State Environmental Planning Policy (Resilience and Hazards) 2021 1. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). I accept that a Preliminary Site Investigation, Detailed Site Investigation, Remediation Action Plan and Validation Report have been prepared by Geotechnique Pty Ltd in respect of the land, in support of a prior consent. 2. Additionally, I have read the amended site validation report, prepared by Geotechnique Pty Ltd dated 5 October 2021, the outcomes of which are incorporated in the agreed conditions of consent. 3. On this basis I accept that the land is not contaminated by virtue of exceeding the relevant assessment criteria, but that where "marginal concentrations" of organochlorine pesticides are identified on the site, appropriate contamination management is proposed by the conditions of consent and the land will be made suitable for the purpose for which development is proposed to be carried out, in ace with s 4.6 of the Resilience and Hazards SEPP. Sydney Environmental Planning Policy (Biodiversity and Conservation) 2021 1. The site is within the Sydney Harbour Catchment but is not identified as a Foreshores and Waterways Area, a strategic foreshore site, a wetland protection area, and does not contain a heritage item at s 10.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). 2. I have considered those matters at Ch 10 Pt 10.3 Div 2 of the Biodiversity SEPP, as required by s 10.18 and I conclude the following: 1. With respect to s 10.19, I accept that the proposed development will have a negligible and acceptable impact on biodiversity, ecology and environmental protection when those provisions at subs (a)-(i) are considered. 2. With respect to ss 10.20-10.24, the proposed development will have no impact upon public access to, and use of, the foreshore and waterway, and has no implications for a working harbour, no implications for use of, or impact on the scenic quality of the waterways or foreshore, and no impact on views. Conclusion 1. 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. 2. The Court notes that the Respondent, Cumberland Council, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, agreed to the Applicant amending Development Application No. DA2021/0594 in accordance with the following amended plans and documents: 1. The following amended architectural plans prepared by CDArchitects: Drawing No. Drawing Title Date DA 1001, Rev J Cover Sheet 28 July 2022 DA 1005, Rev G Site Plan 28 July 2022 DA 1006, Rev A Site Analysis Plan 15 September 2021 DA 1101, Rev F Basement Level 03 Floor Plan 28 July 2022 DA 1102, Rev F Basement Level 02 Floor Plan 28 July 2022 DA 1103, Rev G Basement Level 01 Floor Plan 28 July 2022 DA 1104, Rev H Ground Floor Plan 28 July 2022 DA 1105, Rev F Level 01 Floor Plan 28 July 2022 DA 1106, Rev D Level 02 Floor Plan 28 July 2022 DA 1107, Rev E Level 03 Floor Plan 28 July 2022 DA 1108, Rev E Roof Terrace Level Plan 20 July 2022 DA 1109, Rev E Roof Plan 20 July 2022 DA 2001, Rev H West & East Elevations 28 July 2022 DA 2002, Rev H North & South Elevations 27 July 2022 DA 3001, Rev F Sections 27 July 2022 DA3002, Rev E Sections 28 July 2022 DA 6001, Rev D Shadow Diagrams 20 July 2022 DA 6011, Rev E Solar Study – Sheet 01 20 July 2022 DA 6012, Rev E Solar Study – Sheet 02 20 July 2022 DA 6013, Rev E Solar Study – Sheet 03 20 July 2022 DA 6014, Rev E Solar Study – Sheet 04 20 July 2022 DA 6031, Rev E Childcare Outdoor Area Solar Access Study – 9am 20 July 2022 DA 6032, Rev E Childcare Outdoor Area Solar Access Study – 10am 20 July 2022 DA 6033, Rev E Childcare Outdoor Area Solar Access Study – 11am 20 July 2022 DA 6034, Rev E Childcare Outdoor Area Solar Access Study – 12pm 20 July 2022 DA 6035, Rev E Childcare Outdoor Area Solar Access Study – 1pm 20 July 2022 DA 6036, Rev E Childcare Outdoor Area Solar Access Study – 2pm 20 July 2022 DA 6037, Rev E Childcare Outdoor Area Solar Access Study – 3pm 20 July 2022 DA 7001, Rev F GFA Calculation 28 July 2022 DA 7031, Rev G 3D View 28 July 2022 DA 7041, Rev G Finishes Schedule 28 July 2022 DA 7051, Rev D LEP Building Height Diagram 27 July 2022 DA 7061, Rev E Childcare Outdoor Area Calculation 20 July 2022 DA 7062, Rev D Childcare's Area Calculation 20 July 2022 DA 7063, Rev B Kitchen Fitout Details 29 March 2022 DA 7064, Rev A Nappy Room Details 29 March 2022 DA 7065, Rev E Café Details 20 July 2022 DA 7066, Rev B Child Care Outdoor Area Diagram – Ground Floor 20 July 2022 DA 7067, Rev B Child Care Outdoor Area Diagram – Level 1 20 July 2022 DA 8001, Rev E Ground Floor Supervision Plan 27 July 2022 DA 8002, Rev C Level 1 Supervision Plan 20 July 2022 1. The following updated landscape plans prepared by Canvas Landscape Architects: Drawing No. Drawing Title Date s.34-L101, Rev C Landscape and Play Item Layout Plan: Ground Floor 25 July 2022 DA-L102, Rev C Landscape and Play Item Layout Plan: level 01 25 July 2022 s.34-L103, Rev C Landscape Typical Details & Maintenance Program 25 July 2022 1. The following updated stormwater plans prepared by Capital Engineering Consultants: Drawing No. Drawing Title Date SW001, Rev F Cover Sheet 22 July 2022 SW010, Rev F Basement Level 3 Stormwater Layout Plan, Notes and Details 22 July 2022 SW020, Rev F Basement Plan Level 1 & 2 22 July 2022 SW030, Rev F Ground Floor Stormwater Layout Plan, Notes and Details 22 July 2022 SW031, Rev F Inter-Allotment Drainage Plan and Long-Section Through Pipeline 22 July 2022 SW032, Rev F OSD Detail & Calculations 22 July 2022 ER001, Rev F Erosion and Sediment Control Plan 22 July 2022 1. Updated Noise Impact Assessment prepared by Rodney Stevens Acoustics, Revision 4, dated 20 June 2022. 1. The Court also notes the amended development application was lodged on the NSW planning portal on 28 July 2022, and the Applicant filed the amended development application with the Court on the same date. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA2021/0594 for the construction of a four storey mixed use building comprising a centre based childcare facility, business premises and a cafe at 73 Hawkesbury Road, Westmead (Lot 11 in Deposited Plan 311932), subject to the conditions of consent in Annexure A. ………………….. T Horton Commissioner of the Court Annexure A (386472, 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: 22 August 2022