Land and Environment Court New South Wales Medium Neutral Citation: Mourad v Fairfield City Council [2022] NSWLEC 1708 Hearing dates: Conciliation conference on 14 December 2022 Date of orders: 20 December 2022 Decision date: 20 December 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $12,000 payable within 30 days of Orders being made by the Court. (2) The appeal is upheld. (3) Development Consent is granted to Amended Development Application DA-399.1/2021 for the amalgamation of two (2) lots, construction of a two (2) storey centre based childcare facility for a maximum of one hundred and six (106) children, with nineteen (19) staff, including basement car parking, associated stormwater drainage and landscaping at 37-39 Broughton Street, Old Guildford, subject to conditions in Annexure B. Catchwords: DEVELOPMENT APLPICATION: centre based child care facility in R2 zone – conciliation conference – agreement between parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Fairfield Local Environmental Plan 2013, cll 4.3, 4.4. 6.2, 6.9 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 23, 25 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Environmental Planning and Assessment Regulation 2000, cl 55 Education and Care Services National Regulations 2011, Regs 107, 108 Category: Principal judgment Parties: George Mourad (Applicant) Fairfield City Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Marsdens (Respondent) File Number(s): 2022/228244 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Fairfield City Council (the Respondent) of Development Application No 399.1/2021 seeking consent for the proposed amalgamation of two (2) lots, removal of nineteen (19) trees and construction of a two (2) storey centre based childcare facility for a maximum of one hundred and eight (108) children, with nineteen (19) staff, including basement car parking for thirty (30) spaces, associated stormwater drainage and landscaping at No 37-39 Broughton Street, Old Guildford. 2. In accordance with its usual practice, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, at which I presided on 14 December 2022. 3. Prior to the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application. 4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 5. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 14 December 2022. 6. The parties ask 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. 7. 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 as to how the jurisdictional prerequisites have been satisfied, in order to allow the Court to make the agreed orders at [16], as follows: 8. In respect of the Fairfield Local Environmental Plan 2013 (FLEP): 1. The site is situated within R2 Low Density Residential zone pursuant to the provisions of the FLEP. Development for the purposes of a centre-based child care facility is permissible with consent in Zone R2 Low Density Residential, where consistent with the objectives for development in the zone, which are: * To provide for the housing needs of the community within a low density residential environment. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The proposed development does not exceed the height of building development standard of 13m, pursuant to cl 4.3 of the FLEP. Similarly, the proposal complies with the applicable floor space ratio of 0.45:1, at cl 4.4 of the FLEP. 2. I have considered those matters at cl 6.2(3) of the FLEP and, on the basis of the Concept stormwater drainage plans prepared by Deboke Engineering services, the Geotechnical Investigation Report prepared by Geotechnical Consultants Australia dated 25 May 2021, and Landscape Plans prepared by Outside In Design Group dated 21 November 2022, I conclude 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. 3. As the site is located in an urban area, and comprises two lots on which existing dwellings are currently serviced by those services set out at cl 6.9 of the FLEP, I am satisfied that adequate arrangements have been made for essential services. 1. In respect of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP): 1. Clause 23 of the Child Care SEPP requires the consent authority, or the Court on appeal, to take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development. I have considered the applicable provisions, assisted by the detailed assessment set out at pp 31-52 of the Statement of Environmental Effects prepared by Think Planners dated 29 October 2021. 2. Clause 25 of Child Care SEPP requires the development application to comply with Regulations 107 (indoor unencumbered space requirements) and 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations 2011. Drawings No. 16-18, Revision H dated 15/11/22 confirm that the proposed development complies with Regulation 107 which requires a minimum of 3.25m2 unencumbered indoor space per child. Drawing No. 19, Revision H dated 15/11/22 confirms that the proposed development complies with Regulation 108 which requires a minimum of 7m2 unencumbered outdoor play space per child. 1. In respect of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), I note the findings of the Preliminary Site Investigation (PSI) prepared by Geotechnical Consultants Australia dated 26 May 2021, and the conditions of consent that incorporate recommendations on which basis the PSI concludes the site is suitable for the use in accordance with s 4.6 of the Resilience and Hazards SEPP. Conclusion 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' decision. 2. 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. 3. The Court notes that the Respondent, 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 DA number DA-399.1/2021, filed with the court on 3 August 2022. 4. The Applicant uploaded the amended plans and documents listed at Annexure A onto the NSW Planning Portal on 12 December 2022. 5. The applicant filed the amended application with the court on 13 December 2022. Orders 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $12,000 payable within 30 days of Orders being made by the Court. 2. The appeal is upheld. 3. Development Consent is granted to Amended Development Application DA-399.1/2021 for the amalgamation of two (2) lots, construction of a two (2) storey centre based childcare facility for a maximum of one hundred and six (106) children, with nineteen (19) staff, including basement car parking, associated stormwater drainage and landscaping at 37-39 Broughton Street, Old Guildford, subject to conditions in Annexure B. …………………… T Horton Commissioner of the Court Annexure A (150146, pdf) Annexure B (247152, 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: 20 December 2022