Land and Environment Court New South Wales Medium Neutral Citation: Double Arts Properties Pty Ltd v Northern Beaches Council [2023] NSWLEC 1003 Hearing dates: Conciliation conference on 23 November 2022 Date of orders: 6 January 2023 Decision date: 06 January 2023 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that are thrown away as a result of the Court allowing the Applicant to file the Amended Development Application, in the amount of $3,500; (2) the appeal is upheld; (3) Development Application No DA2022/0492 for alterations and additions to existing two storey building to provide a centre-based child care facility with associated earthworks, landscaping and at-grade parking at 397 Condamine Street, Allambie Heights, is approved, subject to the conditions of consent in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders. Legislation Cited: Education and Care Services National Regulations 2011, regs 107, 108 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environment Planning and Assessment Regulation 2021, ss 37, 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.6 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120, Pt 3 Warringah Local Environmental Plan 2011, cll 2.3, 4.3, 6.1, 6.2, 6.4 Cases Cited: Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 Texts Cited: Warringah Development Control Plan 2011 Category: Principal judgment Parties: Double Arts Properties Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: I Hemmings SC (Applicant) J Simpson (Solicitor)(Respondent) Solicitors: Reid & Vesely Solicitors (Applicant) Northern Beaches Council (Respondent) File Number(s): 2022/209666 Publication restriction: No Judgment 1. COMMISSIONER: Double Arts Properties Pty Ltd (the Applicant) has appealed the refusal by Northern Beaches Council (the Respondent) of its Development Application No. DA2022/0492, made with owner's consent, for alterations and additions to existing two storey building to provide a centre-based child care facility with associated earthworks, landscaping and at-grade parking (the Proposed Development) at 397 Condamine Street, Allambie Heights (the Subject Site). 2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act. 3. The Applicant's Development Application was notified by the Respondent between 26 April and 16 May 2022 and eight (8) submissions were received in response. 4. On 23 November 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant's amended development application, subject to conditions. 5. A site inspection had been undertaken prior to the conciliation conference as part of the proceedings, during which the Court heard from two objectors who made submissions in relation to the Proposed Development as follows: 1. Mr Turner, a neighbour to the Proposed Development, expressed concerns in relation to potential acoustic and visual impacts arising principally from the area immediately adjoining his northern boundary; and 2. Mr Conneally, who resides in the vicinity of the Proposed Development, expressed concerns related to: 1. the Applicant's proposed removal of a privet tree on a site boundary and its potential impact on soil stability and the stability of an existing retaining wall; and 2. potential traffic impacts, most notably in relation to pedestrian conflicts on the local street network. 1. 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. This decision involved the Court upholding the appeal and granting consent to the Applicant's amended development application, subject to conditions. 2. 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. 3. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows: 1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H): 1. on 1 March 2022, SEPP R&H came into force, replacing the State Environmental Planning Policy No 55–Remediation of Land; 2. section 4.6 of SEPP R&H provides that a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated; 3. the Applicant has provided a Preliminary (Stage 1) Site Investigation Report prepared by JK Environments Pty Ltd dated 7 October 2021 and a Detailed (Stage 2) Site Investigation Report prepared by JK Environments Pty Ltd dated 10 June 2022 form part of the Class 1 Application, and in relation to this: 1. the report confirms that portions of the Subject Site are contaminated and/or are areas of environmental concern; 2. the Applicant's Remediation Action Plan (RAP), also prepared by JK Environments Pty Ltd, confirms that the Subject Site can be made suitable for the Proposed Development; and 3. the recommendations in the Applicant's Detailed Site Investigation and the RAP, have been adopted as conditions of consent; and 1. the Parties advise, and I am satisfied, that the requirements of cl 4.6 of SEPP R&H are met, and the Subject Site will be suitable, after remediation, for the purpose for which development is proposed to be carried out; 1. in relation to the relevant provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C): 1. section 2.6 of SEPP B&C states that a person must not clear non-exempt vegetation in any applicable area without a permit granted by the Council; 2. the Proposed Development includes the removal of 15 prescribed trees and 30 non-prescribed trees in accordance with the Applicant's amended Landscape Plans, and the Applicant's proposed tree planting regime maintains and improves tree canopy coverage on the Subject Site; and 3. an arborist report has been prepared by Raintree Consulting (9 March 2022 and updated 15 November 2022), on the basis of which the Parties have advised, and I am satisfied, that the extent of tree clearing by the Applicant is acceptable and the required considerations in s 2.6 of SEPP B&C have been satisfied; and 1. in relation to the relevant provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I): 1. Condamine Street is a classified road, and therefore under the provisions of s 2.119 of SEPP T&I, the consent authority, or the Court on appeal, must not grant consent unless it is satisfied that, where practicable and safe, vehicular access to the Subject Site is provided by a road other than the classified road, the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the Proposed Development and the development is of a type that is not sensitive to traffic noise or vehicle emissions, and in relation to these matters: 1. access to the Subject Site is proposed via the existing two-way access from James Street, which is a lower order road; 2. the two vehicle crossings from the Subject Site to Condamine Street will be removed and footway reinstated and canopy trees planted in that location; 3. the Applicant has provided a Transport Impact Assessment prepared by Stantec Australia Pty Ltd that demonstrates that the Proposed Development will not adversely impact the safety, efficiency and ongoing operation of the classified road; 4. the Applicant has also provided a Noise Impact Assessment prepared by Renzo Tonin and Associates (NSW) Pty Ltd that confirms that the use of the Subject Site for the Proposed Development will not be unduly impacted by noise and emissions from motor vehicles; and 5. on the basis of the above, the Parties have advised, and I am satisfied, that the jurisdictional consideration in s 2.119(2) of SEPP T&I are satisfied; 1. under the provisions of s 2.120(2) of SEPP T&I, the consent authority, or the Court on appeal, must not grant consent to development on land that has a frontage to a classified road unless it is satisfied of certain criteria, and in relation to this: 1. the Applicant's Noise Impact Assessment has assessed the Proposed Development against these criteria; and 2. the Parties advise, and I am satisfied, that the Proposed Development is acceptable subject to mitigation measures which have been adopted by the Applicant in the design of the Proposed Development, as amended; 1. the provisions of Pt 3.3 of SEPP T&I apply to the Proposed Development, and in relation to this: 1. consistent with the provisions of s 3.23 of SEPP T&I, the applicable provisions of the Child Care Planning Guideline must be taken into consideration; 2. the Applicant's Statement of Environmental Effects provided as part of the Applicant's Class 1 Application in this appeal, contains a Child Care Planning Guideline compliance table, and based on this assessment, the Parties advise, and the I am satisfied, that the applicable provisions of the Guideline are met by the Proposed Development, including the non-discretionary development standards referred to in s 3.26 of SEPP T&I; and 3. the Proposed Development as illustrated in the Applicant's amended plans, also complies with the non-discretionary standards of regs 107 and 108 of the Education and Care Services National Regulations 2011, and so the concurrence of the Regulatory Authority is not required, and so is not sought, under s 3.22 of SEPP T&I; 1. in relation to the provisions of Warringah Local Environmental Plan 2011 (WLEP): 1. the Subject Site is zoned R2 Low Density Residential under the provisions of cl 2.3 of WLEP and the Proposed Development is characterised as being for the purposes of 'centre-based childcare facilities' which is a permissible use within the R2 zone; 2. also under the provisions of cl 2.3(2) requires the consent authority, or the Court on appeal, to have regard to the objectives of the R2 zone, and those objectives are as follows: 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. To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah. 1. consistent with the second of the above objectives, the Proposed Development will provide a centre-based childcare facility, with a capacity for a maximum of 150 children and 35 staff, through the adaptive reuse of an existing building with minor external alterations and additions; 2. in relation to the provisions of cl 4.3(2) of WLEP, development on the Subject Site is subject to a maximum height of buildings (HoB) standard of 9.5m and in relation to this: 1. the maximum height of the existing building is 9.7m and no new works are proposed above 9.5m; and 2. the Parties submit, and I agree (per Duggan J in Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 at [58]), that because no new works are proposed above the 9.5m HoB development standard applicable to development on the Subject Site, no request to vary this HoB standard is required pursuant to cl 4.6 of WLEP; 1. in relation to the provisions of cl 6.1 concerning acid sulphate soils (ASS): 1. the Subject Site is partly mapped containing class 5 ASS on the Acid Sulfate Soils Map in WLEP; 2. the Applicant has provided a soils assessment prepared by JK Environments Pty Ltd which concluded that, although acidity was encountered in the natural soils of the Subject Site, this was not assessed to be Potential Acid Sulfate Soils; and 3. the Proposed Development does not propose any substantial excavation and will not lower the water table below one metre Australian Height Datum (AHD) level on Class 1, 2, 3, or 4 land and therefore an Acid Sulphate Soil assessment is not needed; 1. in relation to the provisions of cl 6.2 concerning earthworks: 1. the Proposed Development includes reconfiguration of an existing car parking area on the Subject Site to provide outdoor play areas; 2. the Applicant's Geotechnical Investigation dated 15 September 2021 and prepared by JK Geotechnics Pty Ltd demonstrates that those works can be undertaken utilising conventional earthmoving equipment without any amenity impacts on adjoining properties; 3. the Applicant's Geotechnical Investigation also proposes that excavated soils may be reused as engineered fill, provided they are acceptable from an environmental perspective; and 4. the Applicant's Remediation Action Plan prepared by JK Environments Pty Ltd, proposes that contaminated soils will be classified for waste disposal, excavation and off-site disposal to a licensed landfill facility; and 5. having considered the matters at cl 6.2(3) of WLEP, the Parties advise, and I am satisfied, that the extent of the Applicant's proposed earthworks will not have a detrimental impact on any environmental functions and processes, including in relation to drainage and soil stability, neighbouring land uses, cultural or heritage items or features of the surrounding land; 1. in relation to the provisions of cl 6.4 concerning development on sloping land: 1. the Subject Site is identified on the Respondent's Landslide Risk Map within Area A (slope <5°) and Area B (flanking slopes 5° to 25°); 2. the Applicant has provided a geotechnical investigation prepared by JK Geotechnics Pty Ltd which did not identify any risk of landslides on the Subject Site; and 3. the Applicant's Stormwater Plans prepared by NiTmA Consulting Pty Ltd confirm that stormwater flows can be suitably managed on the Subject Site and, as a consequence, the Proposed Development will have no adverse impact on the existing subsurface flow conditions on the Subject Site; 1. in relation to the provisions of Warringah Development Control Plan 2011 (WDCP), the Parties have advised, and I am satisfied, that the Applicant's amended development application is satisfactory having regard to the provisions of the WDCP and the provisions of s 4.15(1)(a)(iii) of the EP&A Act; 2. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act, including in relation to the submissions of the objectors (see above at [5]) which is a relevant consideration under s 4.15(1)(d) of the EP&A Act, and which the Parties agree have been considered in the Applicant's amended application noting that: 1. the Applicant's amended plans have enclosed a previously proposed gap above the proposed acoustic barrier to the outdoor play area; and 2. the Applicant's proposed acoustic barrier will now be constructed as a lapped and capped fence with a relative height of 1.8m above the deck of the adjoining property; and 3. the Applicant's amended landscape plans propose the planting of trees that will project above the fence line along the western boundary of the Subject Site; 4. under the Parties' agreed conditions of consent, the root system of the privet that is proposed for removal will be retained to facilitate the maintenance of soil and retaining wall stability, and 5. the Parties are satisfied that the Applicant's Transport Impact Assessment, prepared by Stantec Australia Pty Ltd, has adequately considered and resolved: 1. any potential traffic impacts that may arise from the carrying out of the Proposed Development; 2. any potential pedestrian conflicts, noting that the Parties' agreed conditions of consent require that the Applicant upgrade the local footpath. 1. Having considered the advice of the Parties, provided above at [8], I agree that: 1. regard has been had to the objectives of the Subject Site's R2 Low Density Residential zoning in determining the Applicant's development application; 2. the Applicant's Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and 3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied; 4. approval of the Proposed Development is in the public interest. 1. Further, 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. 2. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties' decision. 3. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 4. The Court notes that: 1. The Respondent, as the relevant consent authority, has agreed to the Applicant amending the Application Class 1, pursuant to section 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, so as to rely on the following amended materials: Architectural Plans Drawing No. Dated Prepared By DA-01 D Location Plan, Street Elevation, 25.11.2022 Fortey & Grant Notes Architecture DA-02 D Carpark and Site Plan 25.11.2022 Fortey & Grant Architecture DA-03 D First Floor (Entry) 25.11.2022 Fortey & Grant Architecture DA-04 D Ground Floor 25.11.2022 Fortey & Grant Architecture DA-05 D Elevations and Sections 25.11.2022 Fortey & Grant Architecture DA-06 D Area Diagram and Calculations 25.11.2022 Fortey & Grant Architecture DA-07 B Outdoor Play Concept 25.11.2022 Fortey & Grant Architecture Reports/Documents Plan of Management - Allambie Heights August 2022 Giraffe Childcare Group Childcare Centre Remediation Action Plan E34356BDrpt3- 23.8.2022 JK Environments RAPrev1 Detailed (Stage 2) Site 10.6.2022 JK Environments Investigation E34356BDrpt2 Supplementary Contamination Details 9.8.2022 JK Environments E34356BDlet Acoustic Details - Mechanical Plant, 11.8.2022 Renzo Tonin & Boundary Fences. Appendix A Associates Changes to Noise Screens letter 28.11.2022 Renzo Tonin & Associates Landscape Plans 2106/1 Existing Vegetation Plan 25.11.2022 Pamela Fletcher 2106/2 Landscape Site Plan 25.11.2022 Pamela Fletcher 2106/3 Planting Plans 25.11.2022 Pamela Fletcher 2106/4 Construction and Care Notes 25.11.2022 Pamela Fletcher 1. the Applicant filed the Amended Development Application with the Court on 6 December 2022. 2. pursuant to ss 37(7) and 38(4) of the Environmental Planning and Assessment Regulation 2021, the Applicant is not required to upload the abovementioned amended materials to the NSW Planning Portal. Orders 1. The Court orders that: 1. pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that are thrown away as a result of the Court allowing the Applicant to file the Amended Development Application, in the amount of $3,500. 2. the appeal is upheld. 3. Development Application No DA2022/0492 for Alterations and additions to existing two storey building to provide a centre-based child care facility with associated earthworks, landscaping and at-grade parking at 397 Condamine Street Allambie Heights is approved, subject to the conditions of consent in Annexure A. M Chilcott 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: 06 January 2023