Land and Environment Court New South Wales Medium Neutral Citation: Redsab Pty Ltd v Blacktown City Council [2023] NSWLEC 1092 Hearing dates: Conciliation conference on 21 September 2022, 4 and 7 November 2022 and 15 December 2022 Date of orders: 02 March 2023 Decision date: 02 March 2023 Jurisdiction: Class 1 Before: Sheridan AC 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 by the Applicant for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $6,500 payable within 30 days of these orders being made by the Court. (2) The appeal is upheld. (3) Development consent is granted to development application DA-22-00282 seeking consent for the demolition of structures on the site, excavation, tree removal and construction of a 60 place two-storey childcare centre with basement car parking and associated works at 60 Hobart Street, Riverstone NSW 2765, subject to the conditions in the annexure marked "A". Catchwords: DEVELOPMENT APPEAL – child care centre – conciliation conference – agreement between parties – orders Legislation Cited: Blacktown Local Environmental Plan 2015, cll 4.3, 4.4, 5.21, 7.2, 7.3, 7.5, 7.7 Education and Care Services National Regulations 2011 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, 3, ss 2.48, 2.98, 2.119, 2.120, 2.122, 3.3. 3.23, 3.26, Sch 3 Texts Cited: Blacktown Development Control Plan 2015 Child Care Planning Guidelines 2017 Category: Principal judgment Parties: Redsab Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: T Poisel (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Fortis Law (Applicant) Marsdens Law Group (Respondent) File Number(s): 2022/182466 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court ("Court") pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act") against the deemed refusal of Development Application DA 22-00282 (the DA) by Blacktown City Council ("the Council"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 1113 m2 parcel of land which is legally described as Lot 14 in DP 744 and known as 60 Hobart Street, Riverstone ("the Site"). The Site is a corner allotment and has a frontage to Brisbane Road and Hobart Road. It currently contains a single storey dwelling house and ancillary structures. The Site adjoins low density residential properties to the east, west and south. Directly opposite and to the north are a variety of general industrial premises. 3. The DA as submitted to Council, sought consent for the demolition of structures on the site, excavation, tree removal and construction of a 60 place two-storey childcare centre with basement car parking and associated works. 4. The DA was notified by the Respondent for a period of 14 days from 1 April 2022 to 15 April 2022 and no submissions were received. 5. 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 20 October 2022, and at which I presided. During conciliation, amended plans (the Amended Development Application) were prepared by the Applicant to address Council's contentions. The amended plans and documents were uploaded to the NSW Planning Portal on 13 of December 2022. 6. The main changes between the plans as originally submitted to Council and the Proposed Development (as amended), the subject of the s 34 agreement, are: 1. Setbacks have been revised. 2. Gross floor / FSR calculations have been amended. 3. Building height has been amended. 4. Landscape calculations have been amended. 5. Kid placement has been updated to reflect the changes to the design. 6. Indoor play area calculations amended. 7. Outdoor play area calculations amended. 8. Total number of bins have been amended 9. The 3D image has been provided and updated to reflect external changes to the current design 1. The proceedings commenced onsite, with a number of resident objections being heard. Following the onsite view, the parties continued conciliation discussions at which the parties reached in-principle agreement on the matters in contention. I presided over the conciliation conference and adjourned the conference to allow amended plans to be prepared. The amended plans were renotified until 30 November 2022 and one objection was received by the Respondent. This objection was subsequently provided to the Court. 2. The conciliation conference was reconvened a number of times before a signed agreement was prepared in accordance with s 34(10) of the LEC Act and was filed with the Court on 16 December 2022. This decision involved the Court upholding the appeal and granting conditional development consent to the Proposed Development (as amended). 3. 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 and set out in Annexure A. 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 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. 5. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [12] – [30] below. Satisfaction of jurisdiction Blacktown Local Environmental Plan 2015 1. The relevant jurisdictional matters in relation to the Blacktown Local Environmental Plan 2015 ("the LEP") are: 1. The LEP is the relevant local environmental planning instrument that applies to the Site. The Site is zoned R2 Low Density Residential under the LEP. The Proposed Development (as amended) is permissible with consent in the R2 zone. 2. A 9 metre (m) height limit applies to the Site under cl 4.3 of the LEP. The Proposed Development (as amended) provides a maximum height of less than 9m therefore complies with cl 4.3. 3. The Site is not subject to any Floor Space Ratio controls under cl 4.4 of the LEP. 4. Clause 5.10 of the LEP requires the consent authority to consider the effect of the Proposed Development (as amended) on the heritage significance of a heritage item or heritage conservation area concerned. The Site is not listed as a heritage item, within a conservation area, nor are there any heritage items within close proximity to the Site. 5. The Site is not identified as being flood prone under cl 5.21 under the LEP. 6. The Site is not identified as "Biodiversity" on the Natural Resources-Biodiversity Map under cl 7.2 of the LEP. 7. The Site is not identified as "Riparian Land and Waterways" on Natural Resources-Riparian Land and Waterways Map under cl 7.3 of the LEP. 8. Essential services are provided to the Site under cl 7.5 of the LEP. 9. The Site is not identified on the design excellence map under cl 7.7 of the LEP. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 ("Resilience and Hazards SEPP") requires that a consent authority must not grant consent to a development if it has considered whether a site is contaminated, and if it is, that it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use. 2. I am satisfied from the evidence that consent can be granted because the Preliminary Site Investigation Report prepared by Environmental Consultants Australia (ECS) confirms: 1. A site investigation was undertaken on 6 November 2021 by qualified environmental consultants. 2. During the site inspection, there was no evidence of earthworks at the Site such as filling to establish levels for building. 3. One potential area of environmental concern that was identified associated with historical Site usage was "S1 – Hazardous building materials such as asbestos present within the fabric of the house on the Site". 1. ECS found that the Site is suitable for the Proposed Development (as amended), providing that if the existing house is to be demolished or renovated, a hazardous building material survey should be undertaken to identify the presence of asbestos or any other hazardous material. I am therefore satisfied that the site is suitable for the Proposed Development, subject to the inclusion of various conditions of consent to address any potential asbestos. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 ("Biodiversity and Conservation SEPP") seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetations. 2. Whilst the proposal removes three large trees from the site, the Applicant proposes appropriate landscape embellishment works within a residential context undertaken in accordance with the Landscape Plan. I am therefore satisfied from the evidence that the Proposed Development (as amended) is consistent with the requirements of the Biodiversity and Conservation SEPP. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. Chapter 2 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 ("Transport and Infrastructure SEPP") provides a consistent planning regime for infrastructure and the provision of services across the State, along with providing for consultation with relevant public authorities during the assessment process. 2. Section 2.48 of the Transport and Infrastructure SEPP relates to electricity infrastructure and is not applicable as the Site is not in the vicinity of electricity infrastructure that would require concurrence of the electricity supply authority. 3. Section 2.98 of the Transport and Infrastructure SEPP relates to development adjacent to rail corridors and is not applicable as the Site is not adjacent to a rail corridor. 4. The Proposed Development (as amended) is not located within proximity to a classified road nor is it a residential land use and as a result it is not necessary to consider the provisions of s 2.120 of the Transport and Infrastructure SEPP that requires a consent authority to consider the impact of arterial roads on buildings used for residential purposes. 5. Section 2.122 of the Transport and Infrastructure SEPP identifies several types of development that require concurrence from Roads and Maritime Services (RMS) where development is identified as "traffic generating development". 6. The current proposal is not identified as traffic generating development by Sch 3 of the Transport and Infrastructure SEPP. Accordingly, I am satisfied that the proposal is not required to be referred to the RMS for comment. 7. Chapter 3 of the Transport and Infrastructure SEPP provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across the State. 8. The Proposed Development (as amended) is for a centre-based child care facility under s 3.3 of the Transport and Infrastructure SEPP. Section 3.23 of the Transport and Infrastructure SEPP requires that the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines, before determining a development application. 9. Section 3.26 of the Transport and Infrastructure SEPP sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority from requiring more onerous standards for those matters. Section 3.26(2) of the Transport and Infrastructure SEPP sets out non-discretionary development standards for the purpose of subss 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) provides the requirements for indoor or outdoor space. The Proposed Development (as amended) provides 3.33 m2 of unencumbered indoor play space and 7.02 m2 of unencumbered outdoor play space which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations 2011 ("National Care Services Regulations"), which requires 3.25m2 of unencumbered indoor play space and 7m2 of Child Care Planning Guidelines 2017. 10. Compliance with the Child Care Planning Guidelines is addressed at pages 34 to 60 of the Statement of Environmental Effects. I am satisfied from the evidence that the Proposed Development complies with the Guidelines. Blacktown Development Control Plan 2015 1. Compliance with the Blacktown Development Control Plan 2015 (DCP) including specific provisions in the Blacktown City Council Child Care Centre Guide 2016 of the DCP as they relate to childcare centres within the LGA is set out in the table appearing at pages 68 to 75 of the Statement of Environmental Effects. I am satisfied from the evidence that the Proposed Development (as amended) is consistent with the requirements of the DCP. Education and Care Services National Regulations 1. The Education and Care Services National Regulations provides extensive controls and requirements in addition to that of LEP and PDCP and includes: 1. licensing and approvals processes, including documentation requirements; 2. facilities and equipment requirements; 3. staffing requirements; 4. child number requirements; 5. operational requirements; 6. administrative requirements; 7. probity check requirements; and 8. various miscellaneous requirements. 1. I am satisfied from the evidence that the Proposed Development (as amended) complies with the Education and Care Services National Regulations is set out at pages 61 and 63 of the Statement of Environmental Effects. 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. Notes 1. The Court notes that: 1. Blacktown City Council as the relevant consent authority has agreed, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (NSW), to the applicant amending the development application by the documents pursuant to cl 55(2): 1. Architectural Compliance Table, Location Plan 01 Baini Design F 27 Oct 2022 Site Context Plan 02 Baini Design F 27 Oct 2022 Site Analysis Plan 03 Baini Design F 27 Oct 2022 9am Shadow Diagram 04 Baini Design F 27 Oct 2022 12pm Shadow Diagram 05 Baini Design F 27 Oct 2022 3pm Shadow Diagram 06 Baini Design F 27 Oct 2022 Demolition Plan 07 Baini Design F 27 Oct 2022 Site Plan 08 Baini Design F 27 Oct 2022 Basement Plan 09 Baini Design F 27 Oct 2022 Ground Floor Plan 10 Baini Design F 27 Oct 2022 First Floor Plan 11 Baini Design F 27 Oct 2022 Roof Plan 12 Baini Design F 27 Oct 2022 Elevations 13 Baini Design F 27 Oct 2022 Sections 14 Baini Design F 27 Oct 2022 Callout Elevations 15 Baini Design F 27 Oct 2022 Kitchen & Laundry Detail 16 Baini Design F 27 Oct 2022 Typical Nappy Change Details 17 Baini Design F 27 Oct 2022 Typical Bottle Prep Detail 18 Baini Design F 27 Oct 2022 Typical Craft Bench Detail 19 Baini Design F 27 Oct 2022 Schedule of Finishes 20 Baini Design F 27 Oct 2022 Solar Study Calculation Plan - GF 21 Baini Design F 27 Oct 2022 Outdoor Play Area Calculation Plan 22 Baini Design F 27 Oct 2022 Overall Calculation Plan - FF 23 Baini Design F 27 Oct 2022 0-2 Indoor Play Area Calculation 24 Baini Design F 27 Oct 2022 2-3 Indoor Play Area Calculation 25 Baini Design F 27 Oct 2022 3-5 Indoor Play Area Calculation 26 Baini Design F 27 Oct 2022 Fence Details 27 Baini Design F 27 Oct 2022 3D View 28 Baini Design F 27 Oct 2022 Streetscape Elevations 29 Baini Design F 27 Oct 2022 31. Landscape Landscape Concept L – 01 Outside In Design C 24 Oct 2022 Elevations AA + BB, Fence Details + Planting Structure L – 02 Outside In Design C 24 Oct 2022 33. Stormwater Cover Sheet SW001 Capital Engineering Consultants E 27 Oct 2022 Basement Plan, Notes & Details SW010 Capital Engineering Consultants E 27 Oct 2022 Site Stormwater Plan Notes & Details SW020 Capital Engineering Consultants E 27 Oct 2022 On-site Detention & Rainwater Tank Section & Details (1/2) SW021 Capital Engineering Consultants E 27 Oct 2022 On-site Detention & Rainwater Tank Section & Details (1/2) SW022 Capital Engineering Consultants E 27 Oct 2022 Cut & Fill and Retaining Wall Plan Layout SW030 Capital Engineering Consultants E 27 Oct 2022 Erosion and Sediment Control Plan ER001 Capital Engineering Consultants E 27 Oct 2022 41. Statement of Environmental Effects Think Planners - 14 Nov 2022 42. Traffic and Parking Statement Hemanote - 28 Oct 2022 43. Access Report Vista Access Architects B 30 Oct 2022 44. Environmental Noise Impact Assessment Day Design - 02 Nov 2022 45. Arboriculture Impact Assessment Horticultural Management Services 3 28 Oct 2022 46. Plan of Management - - 01 Nov 2022 47. CPTED Assessment Think Planners - 28 Oct 2022 48. Social Impact Comment Think Planers - 14 Nov 2022 49. Geotechnical Investigation Report Capital Engineering Consultants - 27 Oct 2022 1. The applicant has uploaded the amended application on the NSW Planning Portal on 13 December 2022; and 2. The applicant has filed the amended application with the Court on 13 December 2022. Orders 1. The Court orders that: The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment by the Applicant for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $6,500 payable within 30 days of these orders being made by the Court. The appeal is upheld. Development consent is granted to development application DA-22-00282 seeking consent for the demolition of structures on the site, excavation, tree removal and construction of a 60 place two-storey childcare centre with basement car parking and associated works at 60 Hobart Street, Riverstone NSW 2765, subject to the conditions in the annexure marked "A". L Sheridan Acting Commissioner of the Court Annexure A ******** Amendments 08 March 2023 - Counsel updated 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