Land and Environment Court New South Wales Medium Neutral Citation: The Contributors Society Ltd t/as Western Grammar School v Blacktown City Council [2022] NSWLEC 1480 Hearing dates: Conciliation conference on 7 September 2022 Date of orders: 09 September 2022 Decision date: 09 September 2022 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (2) The appeal is upheld. (3) Development application no. DA-21-02311, as amended, for the: (a) demolition of an existing administration building; (b) removal of two (2) temporary demountable classrooms; (c) construction of a new two (2) storey school building (administration and classrooms), a basement car park with access off Bottles Road, and playground shelter; (d) increase in student numbers from 320 to 420 students, inclusion of Year 11 and 12 students, and increase in staff from 15 to 47 members; and (e) associated landscaping and stormwater drainage on land legally described Lot 1 in Deposited Plan 1172313, known as 15 Cannery Road, Plumpton, is determined by the grant of consent subject to the conditions set out in Annexure B. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Blacktown Local Environmental Plan 2015, cll 2.3, 4.3 Environmental Planning and Assessment Act 1979, s 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Interpretation Act 1987, s 30A Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 33, 35, 39 State Environmental Planning Policy No 55 – Remediation of Land (repealed), cl 7 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 1.4, 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 1.4, 3.34, 3.36, 3.40; Sch 9 cl 1, Sch 12, cl 1 Category: Principal judgment Parties: The Contributors Society Ltd t/as Western Grammar School (Applicant) Blacktown City Council (Respondent) Representation: Counsel: T Poisel (Applicant) D Loether (Solicitor) (Respondent) Solicitors: Storey & Gough Lawyers (Applicant) Bartier Perry (Respondent) File Number(s): 2022/176190 Judgment 1. These proceedings are an appeal made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Blacktown City Council's deemed refusal of development application no. DA-21-02311 (DA). The proposal 1. The DA seeks consent for the following works: 1. demolition of an existing administration building; 2. removal of two temporary demountable classrooms; 3. construction of a new two-storey school building (administration and classrooms), a basement car park with access off Bottles Road, and playground shelter; 4. increase in student numbers from 320 to 420 students, inclusion of Year 11 and 12 students, and increase in staff from 15 to 47 members; and 5. associated landscaping and stormwater drainage on land legally described as Lot 1 in Deposited Plan 1172313, also known as 15 Cannery Road, Plumpton (site). Background 1. On 4 January 2022, the DA was lodged with the Council and notified from 19 January to 17 February 2022. Ten (10) objections were received in relation to the original DA. 2. The site is identified as bushfire prone land (category – vegetation buffer). The proposed development is for a "special fire protection purpose" (being a school) and, therefore, authorisation is required under s 100B of the Rural Fires Act 1997 (RF Act) prior to carrying out the proposed development. On 23 March 2022, the NSW Rural Fire Service issued its general terms of approval and authorisation under s 100B of the RF Act, subject to conditions (Tab 13 of Class 1 Application). 3. The DA was referred to Transport for NSW (TfNSW). TfNSW did not raise objections or concerns to the proposed development (Tab 14 of Class 1 Application). 4. On 17 June 2022, the applicant commenced these Class 1 proceedings appealing against the Council's deemed refusal of the DA. 5. On 29 July 2022, the Council filed and served its Statement of Facts and Contentions (SOFAC). 6. The contentions of the SOFAC primarily relate to town planning, acoustics and traffic (including parking). 7. On 1 August 2022, the parties attended a s34 conference which was presided over by Commissioner Gray. The conference was unsuccessful and terminated on that day. 8. On 25 August 2022, the Court granted leave to amend the DA to incorporate amended plans and documents. 9. In response to the matters raised in the Council's SOFAC, as discussed during the s34 conference, and as a result of the expert joint conferencing between the parties, the applicant has prepared further amended plans, which have been referenced in the s34 Agreement. 10. The documents referred to in notation 1 of the s34 Agreement were lodged on the NSW planning portal on 7 September 2022 (Amended Application). 11. The Amended Application does not trigger renotification of the amended plans. 12. The final form of the development in the Amended Application has been assessed and incorporated as amendments to the documentation as listed in the s34 Agreement. 13. The parties have agreed that the Amended Application has resolved the substantive issues raised in the SOFAC such that the parties seek to enter a s34 Agreement. 14. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 September 2022. I presided over the conciliation conference. 15. At 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 DA subject to conditions. 16. 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 DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance in these proceedings have been satisfied by way of a jurisdictional statement accompanying the s34 agreement. 17. 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, for the following reasons. Jurisdictional matters 1. The applicant is registered proprietor of the land at 15 Cannery Road, Plumpton. Blacktown Local Environmental Plan 2015 (BLEP) 1. The site is located in the R2 Low Density Residential Zone. 2. 'Educational establishment' is prohibited within the R2 Low Density Residential Zone. The proposed development is permissible with consent pursuant to cl 35 of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (EE SEPP) (now s 3.36 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)). Zone Objectives and Land Use Table 1. The Amended Application meets the objectives for development in the B2 zone for the purposes of cl 2.3(2) of the BLEP by providing facilities and services to the residents of Plumpton and other suburbs of Blacktown City Council (Statement of Environmental Effects prepared by Ingham Planning Pty Ltd (SEE), Tab 7 to the Class 1 Application). Height of Buildings 1. The proposed development is compliant with the height control of 9m under cl 4.3 of the BLEP (Drawing No. 3.02, Revision M of Architectural Plans prepared by Moderin Pty Ltd, Applicant's Further Amended Notice of Motion filed 24 August 2022). Heritage 1. Clause 5.10 is not relevant to the development proposal. Flood planning 1. Clause 5.21 is not relevant to the development proposal. EE SEPP and TI SEPP 1. When the DA was lodged on 4 January 2022, the EE SEPP was in force and applied. 2. On 1 March 2022, the EE SEPP was repealed and Pts 1-7 of the EE SEPP (other than cls 1 and 2) were transferred to Pts 3.1-3.7 of Chap 3 of the TI SEPP: see cl 1 of Sch 12 to the TI SEPP. 3. Section 1.4 of the TI SEPP provides: 1.4 Transferred provisions The Interpretation Act 1987, section 30A is taken to apply to the provisions transferred to this Policy on the commencement of this Policy in the same way as it applies to provisions transferred from a statutory rule to another statutory rule. 1. Section 30A(2) of the Interpretation Act 1987 provides: The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred. 1. The parties agree, that the provisions of the EE SEPP continue to apply to the DA (as amended). 2. Clause 1 of Sch 9 of the TI SEPP also provides: 1 Savings provision (1) Chapter 3 does not apply to or in respect of the determination of a development application made under Part 4 of the Act, but not finally determined before the commencement of Chapter 3. (2) Despite subsection (1), before determining a development application referred to in that subsection for development for the purpose of a centre-based child care facility, the consent authority must take into consideration the regulatory requirements and the National Quality Framework Assessment Checklist set out in Part 4 of the Child Care Planning Guideline, in relation to the proposed development. (3) … (5) Subject to subsection (2), an application to which subsection (1), (3) or (4) applies is to be determined as if Chapter 3 had not been made. (6) … 1. In that circumstance the parties agree that the DA (as amended) is to be determined as if Ch 3 of the TI SEPP had not been made. 2. Pursuant to cl 5 of the EE SEPP (now s 3.3 of the TI SEPP), educational establishment means a building or place used for education (including teaching), being – a school, or a tertiary institution, including a university or TAFE establishment, that provided formal education and is constituted by or under an Act. 1. The Council is satisfied that the Amended Application complies with the definition of educational establishment. 2. Pursuant to cl 33 of the EE SEPP (now s 3.34 of the TI SEPP), Zone R2 Low Density Residential is a prescribed zone. Accordingly, the proposed development satisfies cl 35(1) of the EE SEPP (now s 3.36(1) of the TI SEPP). 3. Pursuant to cl 35(2) of the EE SEPP (now section 3.36(2) of the TI SEPP), the proposed development is for a purpose specified in cl 39(1) of the EE SEPP (now s 3.40(1) of the TI SEPP) and may be carried out with development on the land within the boundaries of the existing school. Clause 35(6) of the EE SEPP (now s 3.36(6) of the TI SEPP) 1. The Council confirms that it has considered the design quality of the development when evaluated in accordance with the design quality principles in Schedule 8 (Clauses 4.1.1 of Annexure A (Conditions of Consent) to the Section 34 Agreement) and find it acceptable. I am also satisfied of that fact on the evidence before the Court. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) and State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) 1. When the DA was lodged on 4 January 2022, SEPP 55 was in force and applied. 2. On 1 March 2022, the SEPP 55 was repealed and the provisions of SEPP 55 (other than cls 1 and 20) were transferred to Ch 4 of the RH SEPP. See cl 3 of Sch 3 to the RH SEPP. 3. Section 1.4 of the RH SEPP provides: 1.4 Transferred provisions The Interpretation Act 1987, section 30A is taken to apply to the provisions transferred to this Policy on the commencement of this Policy in the same way as it applies to provisions transferred from a statutory rule to another statutory rule. 1. Section 30A(2) of the Interpretation Act 1987 provides: The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred. 1. The parties agree and I accept that the provisions of SEPP 55 continue to apply to the DA (as amended). 2. Clause 7(1) of SEPP 55 (now s 4.6(1) of the RH SEPP) requires a consent authority to consider the contamination and remediation of land when determining a development application. 3. The Council is unaware of any contamination at the site. Further, the Applicant has provided a Geotechnical Report (Tab 19 of Class 1 Application). 4. The Council is satisfied that cl 7(1) of SEPP 55 has been satisfied. I am also satisfied of that fact on the evidence before the Court. Merit matters 1. The amended plans, materials and conditions of consent agreed between the parties and annexed to the s34 Agreement resolve the Council's merit concerns. 2. The Amended Application has taken into consideration the written and oral submissions made by the residents and the amendments go towards addressing those concerns raised by residents. In that regard I note that the objections raised concerned the visual impact of the proposal in the streetscape, increased traffic and noise generated by an increase of students at the site. Collectively, the objectors submitted that the proposal represents an overdevelopment of the site. One of the submitters spoke to her objection at the site inspection held at the commencement of the hearing and read out another neighbour's written objection. The Council submits that the design of the building, landscaping and traffic and noise and light spill into a neighbour's bedroom have now been addressed in an amended application and plan of management. 3. 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. 4. The Court notes that: 1. Blacktown City Council, as the relevant consent authority, has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 to the applicant amending development application DA-21-02311 in accordance with the documents below (Annexure A to the s34 agreement): Architectural Plans prepared by Moderin Pty Ltd 1. Plan 0.00 Revision X 5 September 2022 2. Plan 2.01 Revision S 5 September 2022 3. Plan 3.01 Revision J 5 September 2022 4. Plan 4.01 Revision S 5 September 2022 5. Plan 4.02 Revision P 26 August 2022 6. Plan 5.01 Revision Y 5 September 2022 Landscape Plan prepared by Greenland Design 7. Plan 2454. GD.01 Revision E September 2022 8. Plan 2454. GD.02 Revision E September 2022 9. Parking and Traffic Management Plan prepared by Western Grammar School 5 September 2022 10. School Management Plan (SMP) & Noise Management Plan 31 August 2022 1. The Council has uploaded the amended development application on the NSW planning portal on 7 September 2022. 2. The applicant has filed the amended development application with the Court on 7 September 2022. 1. The Court orders: 1. The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The appeal is upheld. 3. Development application no. DA-21-02311, as amended, for the: 1. demolition of an existing administration building; 2. removal of two (2) temporary demountable classrooms; 3. construction of a new two (2) storey school building (administration and classrooms), a basement car park with access off Bottles Road, and playground shelter; 4. increase in student numbers from 320 to 420 students, inclusion of Year 11 and 12 students, and increase in staff from 15 to 47 members; and 5. associated landscaping and stormwater drainage on land legally described Lot 1 in Deposited Plan 1172313, known as 15 Cannery Road, Plumpton, is determined by the grant of consent subject to the conditions set out in Annexure B. ………………………. S Dixon Senior Commissioner of the Court Annexure B (330545, pdf) ********** Amendments 12 September 2022 - Correction to typographical error at [47]. 08 March 2023 - Correction to Applicant's representation on coversheet. 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: 08 March 2023