Land and Environment Court New South Wales Medium Neutral Citation: Sharobem Holdings Pty Ltd v Georges River Council [2023] NSWLEC 1099 Hearing dates: Conciliation conference on 16 February 2023 Date of orders: 07 March 2023 Decision date: 07 March 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. 2020/0354 for the demolition of an existing dwelling, excavation, and construction of a twenty-eight place two-storey childcare centre with basement carparking and associated works, at 49 Jersey Avenue, Mortdale, is determined by the grant of consent, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – childcare 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 2000, cll 55, 55AA, 121B Environmental Planning and Assessment Regulation 2021, Sch 6, s 3 Georges River Local Environmental Plan 2021, cl 1.8A Hurstville Local Environmental Plan 2012, cll 4.3, 4.4 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 3.23, 3.26 Texts Cited: Child Care Planning Guidelines, NSW Planning and Environment, 2017 Education and Care Services National Regulations 2011 Category: Principal judgment Parties: Sharobem Holdings Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: J Frangi (Solicitor) (Applicant) J Fan (Solicitor) (Respondent) Solicitors: Fortis Law (Applicant) HWL Ebsworth (Respondent) File Number(s): 2022/164067 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2020/0354 for the demolition of an existing dwelling, excavation, and construction of a twenty-eight place two-storey childcare centre with basement carparking and associated works (the proposal), at 49 Jersey Avenue, Mortdale (the site), by Georges River Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 February 2023. I presided over the conciliation conference. 3. 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. 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 development application. 4. There are preconditions to the exercise of power to grant development consent for the proposal. Amended Plans 1. The Environmental Planning and Assessment Regulation 2000 continues to apply to the application, because the application was lodged on 11 September 2020 and not yet determined on 1 March 2022 (s 3 of Sch 6 to the Environmental Planning and Assessment Regulation 2021). Pursuant to s 3(2) of Sch 6 to the Environmental Planning and Assessment Regulation 2021, a requirement to use the NSW Planning Portal under the 2000 Regulation, clause 55(1), 55AA(2)(d) or 121B(1) does not apply if the development application is subject to proceedings in the Court. 2. The Council, as the consent authority, consented to the amendment of the application. The amended application was filed with the Court on 15 February 2023. The amended application amended the plans the subject of the application. As a result of the amendment of the plans, the parties reached agreement. Planning framework 1. The site is zoned R2 pursuant to the Hurstville Local Environmental Plan 2012 (LEP 2012) (cl 1.8A of Georges River Local Environmental Plan 2021). The objectives of the zone, to which regard must be had, 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. • To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area. • To ensure that a high level of residential amenity is achieved and maintained. • To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment. • To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity. 1. The proposal complies with the development standards for floor space ratio and height of buildings (cll 4.3 and 4.4 of LEP 2012). 2. I accept the Council's submission that the site has been investigated and found to be suitable for the proposal subject to a hazardous building inspection (cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021). 3. The consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines before determining the application (cl 3.23 of State Environmental Planning Policy (Transport and Infrastructure) 2021) (Transport and Infrastructure SEPP). I accept the Council's submission that the proposal complies with the non-discretionary standards for centre-based childcare facilities at cl 3.26 of the Transport and Infrastructure SEPP. I accept the Council's submission that the proposal complies with the relevant matters under the Child Care Planning Guidelines and the Education and Care Services National Regulations, and those matters are addressed in the Statement of Environmental Effects. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 15 February 2023 and I am satisfied, based on the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 2020/0354 for the demolition of an existing dwelling, excavation, and construction of a twenty-eight place two-storey childcare centre with basement carparking and associated works, at 49 Jersey Avenue, Mortdale, is determined by the grant of consent, subject to the conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court 164067.22 Annexure A (415179, 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: 07 March 2023