Land and Environment Court New South Wales Medium Neutral Citation: HSL Group Pty Ltd v Liverpool City Council [2022] NSWLEC 1702 Hearing dates: Conciliation conference on 17 November 2022 Date of orders: 15 December 2022 Decision date: 15 December 2022 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders that: (1) The Appeal is upheld. (2) Development consent is granted to Development Application No. DA-651/2022, for the amalgamation of two lots, removal of identified trees, demolition of existing structures and the construction of a two storey child care centre for 110 children over basement parking on land legally described as Lot 38 in DP228324 and Lot 39 in DP228324 and known as 22 – 24 Thompson Avenue, Moorebank, subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – child care centre – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2021 s 37 Land and Environment Court Act 1979 s 34 Liverpool Local Environmental Plan 2008 cll 4.3, 4.4, 7.3 State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.1 State Environmental Planning Policy (Transport and Infrastructure) 2021 s 3.23 Texts Cited: NSW Department of Planning and Environment, Child Care Planning Guideline (August 2017) Category: Principal judgment Parties: HSL Group Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: J Reid (Applicant) C Campbell (Respondent) Solicitors: McPherson Kelly (Applicant) Liverpool City Council (Respondent) File Number(s): 2022/219047 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of Liverpool City Council's deemed refusal of Development Application DA 651/2022, which seeks consent for the amalgamation of two lots, removal of identified trees, demolition of existing structures and the construction of a two storey, 110 place child care centre over basement parking at Lots 38 and 39 in DP 228324, 22-24 Thompson Ave, Moorebank. These proceedings have been brought pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 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 was held on 17 November 2022. I presided over the conciliation conference. 3. After 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 one 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 and explained how they have been satisfied. From this I note the following: 1. Pursuant to the Liverpool Local Environmental Plan 2008 (LLEP), the site is zoned R4 High Density Residential, within which centre-based child care facilities are permitted with consent. 2. Pursuant to LLEP cl 4.3, the building height of 7.7m sits within the maximum 12m height allowance. 3. The proposed floor space ratio for the site is 0.44:1, which is below the maximum of 0.75:1 established pursuant to LLEP cl 4.4. 4. Pursuant to LLEP cl 7.3, the parties submit and I accept that the matters listed in cl 7.3(3) have been considered, and are adequately achieved by the proposed development. 5. Based on the preliminary site investigation and the parties' submission, I accept that pursuant to the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.1(1), in terms of contamination the site can be made suitable for the proposed development subject to the conditions included in Annexure A. 6. The parties submit and I accept that, as required by State Environmental Planning Policy (Transport and Infrastructure) 2021 s 3.23, the Child Care Planning Guideline has been considered, and the relevant matters for consideration are as addressed in the Statement of Environmental Effects. 7. The development application was notified as required from 16 August 2022. The parties submit and I accept that, as the amendments improve the amenity and impacts of the proposed development there is no need to re-notify. 1. For the above reasons 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 am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court notes that the Council, as the relevant consent authority, has consented to (pursuant to s 37 of the Environment Planning and Assessment Regulation 2021) the Applicant amending Development Application No. DA-651/2022 in accordance with the amended plans and documents lodged on the NSW Planning Portal on 17 November 2022 and 7 December 2022 and filed with the Court on 18 November 2022 and 7 December 2022 as described below. Drawing No and Revision Title Prepared by Date Architectural Plans Drawing No 00 Rev E Cover Page Baini Design 17 November 2022 Drawing No 01 Rev E Compliance Table, Location Plan 17 November 2022 Drawing No 02 Rev E Site Context Plan 17 November 2022 Drawing No 03 Rev E Site Analysis Plan 17 November 2022 Drawing No 04 Rev E 9am Shadow Diagram 17 November 2022 Drawing No 05 Rev E 12pm Shadow Diagram 17 November 2022 Drawing No 06 Rev E 3pm Shadow Diagram 17 November 2022 Drawing No 07 Rev E Site & Demolition Plan 17 November 2022 Drawing No 08 Rev E Basement Floor Plan 17 November 2022 Drawing No 09 Rev E Ground Floor Plan 17 November 2022 Drawing No 10 Rev E First Floor Plan 17 November 2022 Drawing No 11 Rev E Roof Plan 17 November 2022 Drawing No 12 Rev E Elevations 17 November 2022 Drawing No 13 Rev E Elevations 17 November 2022 Drawing No 14 Rev E Sections 17 November 2022 Drawing No 15 Rev E Callout Elevations 17 November 2022 Drawing No 16 Rev E Kitchen & Laundry Details 17 November 2022 Drawing No 17 Rev E Typical Nappy Change 17 November 2022 Drawing No 18 Rev E Typical Craft Bench Detail 17 November 2022 Drawing No 19 Rev E Typical Bottle Prep Detail 17 November 2022 Drawing No 20 Rev E Schedules of Finishes 17 November 2022 Drawing No 21 Rev E Calculation Plan – Ground Floor Play Area 17 November 2022 Drawing No 22 Rev E Calculation Plan – First Floor Play Area 17 November 2022 Drawing No 23 Rev E Calculation Plan – 0-2 Indoor Play Area 17 November 2022 Drawing No 24 Rev E Calculation Plan – 2-3 Indoor Play Area 17 November 2022 Drawing No 25 Rev E Calculation Plan – 3-5 Indoor Play Area 17 November 2022 Drawing No 26 Rev E Solar Study Plan – Ground Floor 17 November 2022 Drawing No 27 Rev E Solar Study Plan – First Floor 17 November 2022 Drawing No 28 Rev E Fencing Details – Ground Floor 17 November 2022 Drawing No 29 Rev E Fencing Details – First Floor 17 November 2022 Drawing No 30 Rev E 3D Perspective 17 November 2022 Drawing No 31 Rev E Streetscape Elevation 17 November 2022 Drawing No 32 Rev E Accessible Details – Basement Floor 17 November 2022 Drawing No 33 Rev E Accessible Details – Ground Floor 17 November 2022 Drawing No 34 Rev E Accessible Details – First Floor 17 November 2022 Drawing No 35 Rev E Solar Access Plans 01 – Ground Floor 17 November 2022 Drawing No 36 Rev E Solar Access Plans 02 – Ground Floor 17 November 2022 Drawing No 37 Rev E Solar Access Plans 03 – Ground Floor 17 November 2022 Rev D Evacuation Plan 14 November 2022 Landscape Plans Drawing No L-01 Issue B Landscape Concept Outside In Design Group 11 November 2022 Drawing No L-02 Issue B 3D CGI Renders 11 November 2022 Survey plan Detail and Level Survey of 22-24 Thompson Ave, Moorebank – Revision A PK Surveys Pty Ltd 15 September 2022 Stormwater Management plans Dwg No D00 Rev B Cover Sheet, Legend & Drawing Schedule Amity Engineers 11 October 2022 Dwg No D05 Rev B Erosion and Sediment Control Plan 11 October 2022 Dwg No D06 Rev B Erosion and Sediment Control Details 11 October 2022 Dwg No D10 Rev B Stormwater Drainage Plan Basement Level 11 October 2022 Dwg No D11 Rev B Stormwater Drainage Plan Ground Level 11 October 2022 Dwg No D12 Rev B Stormwater Drainage Plan Roof Level 11 October 2022 Dwg No: D20 Rev B Stormwater Details Sheet 1 11 October 2022 Dwg No: D21 Rev B Stormwater Details Sheet 2 11 October 2022 Reports Schedule of Amendments Baini Design 14 November 2022 Environmental Noise Impact Assessment – Report No: 7441.1R Rev A Day Design Pty Ltd 11 October 2022 Aboricultural Impact Assessment Tree and Landscape Consultants 6 October 2022 Traffic and Parking Response Letter McLaren Traffic Engineering 10 October 2022 Plan of Management – Version 2 12 October 2022 Preliminary Site Investigation – Job No: AG-536_1rv2 Australian Geoenviro 28 October 2022 Hydrologist Report – KD2023/3 Katarina David 4 November 2022 Child Care services Report Early Education Solutions 14 November 2022 Waste Management Plan – Ref - 22266 Dickens Solutions October 2022 1. The Court orders that: 1. The Appeal is upheld. 2. Development consent is granted to Development Application No. DA-651/2022, for the amalgamation of two lots, removal of identified trees, demolition of existing structures and the construction of a two storey child care centre for 110 children over basement parking on land legally described as Lot 38 in DP228324 and Lot 39 in DP228324 and known as 22 – 24 Thompson Avenue, Moorebank, subject to the conditions at Annexure A. E Washington Acting Commissioner of the Court ********** 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: 15 December 2022