Land and Environment Court New South Wales Medium Neutral Citation: Du v Fairfield City Council [2023] NSWLEC 1110 Hearing dates: Conciliation conference on 7 October 2022, 15 and 24 November 2022 and 15 December 2022 Date of orders: 14 March 2023 Decision date: 14 March 2023 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court Orders that: (1) The Appeal is upheld. (2) Development consent is granted to Development Application No. DA 433.1/2021, as amended, for the demolition of existing structures, removal of trees, construction of a one (1) storey child care centre for a maximum of twenty-four (24) children, with six (6) parking spaces, landscaping and associated site works on land legally described as Lot 6 in DP 36181 and known as 49 George Street, Canley Heights, NSW, 2166, subject to the conditions at Annexure A. (3) The Applicant is directed to pay the Respondent's costs thrown away under s.8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $7,000. Catchwords: DEVELOPMENT APPEAL – child care centre – conciliation conference – agreement between parties – orders Category: Principal judgment Parties: Wendy Du (Applicant) Fairfield City Council (Respondent) Representation: Counsel: J Reid (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Macpherson Kelley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2022/167738 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 433.1/2021 (the DA) by Fairfield 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 670.26 m2 parcel of land legally described as Lot 6 in DP36181 and known as 49 George Street, Canley Heights NSW 2166 (the Site). The Site currently contains a single storey dwelling house and ancillary structures and three trees. The Site adjoins predominantly low-density residential properties, including a mixture of single and double storey dwellings and dual occupancies to the north, south, east and west of the Site. On the southern side of George Street is land zoned R3 Medium Density Residential. 3. The DA seeks consent for the construction of existing structures and construction of a single storey centre based child care facility and associated works. 4. The DA was notified by the Respondent for a period of 14 days from 13 December 2021 and 27 December 2021 and one submission was 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 7 October 2022, and at which I presided. During conciliation, amended plans and documents (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 December 2022. 6. The Applicant has provided the Council with amended plans and material during the s 34 conference process (Amended DA). A list of these plans and documents is in the s 34 Agreement signed by the Parties. The Council, as the relevant consent authority, has consented (pursuant to s 37 of the Environment Planning and Assessment Regulation 2021) to the Applicant amending the DA. 7. The nature of the amendments to the Amended DA have been clouded and annotated on the architectural plans. 8. The Amended DA addresses Council's contentions in its Statement of Facts and Contentions (SOFAC) as follows: (i1). In response to Contention 1 (Flooding) and 2 (Suitability of the Site), the Amended DA is accompanied by a letter from our client's engineer, Mr Nathan Broadbent at ACOR, dated 20 September 2022 which confirms that further modelling assessment has been carried out which is based on Council's TUFLOW model and following this assessment, the subject site is impacted by floodwaters less than 150mm and consequently should be classified as lying within a Low-Risk Precinct. (ii1). In response to Contention 2 (Site Suitability) particulars (j) – (m), the Amended DA is accompanied by an addendum SEE which identifies how the proposed DA is suitable having regard to these particulars. (iii1). In response to Contention 3 (Outdoor Play Area), the architectural plans which accompany the Amended DA have been amended to remove the ramp/reduce the pedestrian thoroughfare by allowing for a timber deck. The unencumbered outdoor play area for the proposed development under the Amended DA is calculated at 168.65m2. In accordance with the National Regulations, the required unencumbered outdoor space for the proposed development is 168m2. (iv1). In response to Contention 4 (Stormwater Drainage), the applicant has agreed to deferred commencement conditions which require an easement over downstream properties and amended stormwater plans consistent with the proposed drainage disposal method via easement to be approved by Council. The development has been amended to provide for OSD within the front setback of the site. (v1). In response to Contention 5 (Acoustic Impact), the Amended DA is accompanied by a revised Plan of Management which is consistent with the recommendations of the revised Environmental Noise Impact Assessment dated 5 October 2022. The subject site lies within a low flood risk precinct and therefore the controls outlined under Section 11.9.3 of FDCP 2013 are not applicable to the DA. (vi1). In response to Contention 6 (Parking and Access), the Amended DA is accompanied by a Traffic and Parking Assessment dated 9 September 2022, traffic letter of advice dated 23 November and traffic letter of advice dated 16 December 2022 which addresses this contention. The Traffic and Parking Assessment also includes a Traffic Management Plan detailing how traffic and parking will be managed from in and out of the centre. 1. The proceedings commenced onsite, with one resident objection being heard. The objector's daughter spoke on her behalf, raising issues of increased noise and traffic congestion and reduced residential amenity. 2. 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. 3. 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 30 January 2023. This decision involved the Court upholding the appeal and granting conditional development consent to the Amended DA. 4. 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. 5. 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. 6. 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 [15] – [31] below. Satisfaction of jurisdiction Fairfield Local Environmental Plan 2013 1. The Site is zoned R2 Low Density Residential under the FLEP. "Centre-based child care facilities" are permitted with consent in the R2 Zone. 2. Clause 4.3 prescribes as maximum height of 9 metres for the Site. The proposed height of the dwelling is less than 9 metres at all times. 3. Clause 4.4 sets down a maximum floor space ratio (FSR) on the Site, mapped at 0.45:1. The proposed floor space ratio is less than 0.45:1. The FSR for the proposed site is 0.25:1 = 165.2m2 which is consistent with FLEP. 4. Clause 5.21 states that: (2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development— (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. (3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters— (a) the impact of the development on projected changes to flood behaviour as a result of climate change, (b) the intended design and scale of buildings resulting from the development, (c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood, (d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion. 1. The Amended DA is accompanied by Flooding Advice, prepared by Acor Consultants, dated 20 September 2022 which confirms that further modelling assessment has been carried out which is based on Council's TUFLOW model and following this assessment, the subject site is impacted by floodwaters less than 150mm and consequently should be classified as lying within a Low-Risk Precinct. I am satisfied from the flooding advice that the proposed development has been designed to comply with the flood planning level for the Site. 2. Pursuant to clause 6.2 development consent is required for fill earthworks. I am satisfied that drainage and soil stability can be managed in accordance with the deferred commencement conditions and conditions 5, 6, 19, 26 and 39. Condition 31 ensures the use of clean fill. 3. Under clause 6.9 Essential Services, development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required— (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable vehicular access 1. I am satisfied that the Site is within an established residential area and is currently provided with electricity, telephone, water and sewerage services. Deferred commencement conditions have been imposed requiring an easement over downstream properties and amended stormwater plans consistent with the proposed drainage disposal method via easement to be approved by Council. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) 1. Chapter 11 Georges River Catchment of the SEPP B&C applies to the proposed development. 2. Clause 11.6 of the SEPP B&C requires a consent authority to consider the matters referred to in Part 11.2. 3. The matters for consideration under Part 11.2 have been addressed by the Stormwater plans prepared by ACOR together with a letter from our client's engineer, Mr Nathan Broadbent at ACOR, dated 20 September 2022 and letter from Mr Broadbent dated 28 September 2022. I am satisfied that the matters in Part 11.2 have been satisfactorily addressed. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) 1. Chapter 4 Remediation of land of the Resilience and Hazards SEPP applies to the proposed development. 2. Section 4.6 of the Resilience and Hazards SEPP requires a consent authority to consider the contamination and remediation of land when determining a development application. Section 4.6(1) requires that: (1) A consent authority must not consent to the carrying out of any development on land unless— (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. The Amended DA is accompanied by a Stage 1 Preliminary Site Investigation report prepared by Noel Child dated 9 June 2021. 2. Based on the assessments undertaken as part of the site investigation, the Site is considered suitable for the proposed development. State Environmental Planning Policy (Transport and Infrastructure) 2021 (ISEPP) 1. Chapter 3 Educational establishments and childcare facilities of the ISEPP applies to the proposed development. 2. Section 3.23 of the ISEPP requires a consent authority to consider the Child Care Planning Guideline when determining a development application. 3. I am satisfied that the matters for consideration under the Child Care Planning Guideline have been addressed in the Statement of Environmental Effects prepared which includes a table at Annexure B demonstrating how the Amended DA complies with the Guideline. 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. The parties have reached an agreement in a conciliation conference conducted pursuant to s.34(3) of the Land and Environment Court Act 1979, as to a decision that the Court could have made in the proper exercise of its functions. 2. The Respondent, as the relevant consent authority has agreed under s 37(1) of the Environmental Planning and Assessment Regulation 2021 ("EPA Regulation"), consents to the Applicant amending the development application No. DA 433.1/2022 in accordance with the following plans and documents: Drawing No and Revision Title Prepared by Date Architectural Plans 1 Dwg No. A00.00 Revision F Cover Page ArtMade Architects 18 October 2022 Dwg No. A02.01 Revision B Site Plan / Demolition 21 September 2022 Dwg No. A03.01 Revision F Ground Floor Plan & Fence / Barrier Diagram 18 October 2022 Dwg No. A04.01 Revision D External Elevations & Finishes 18 October 2022 Dwg No. A05.01 Revision B Sections, External Finishes & Fence Details 18 October 2022 Dwg No. A06.01 Revision A Shadow Diagrams 5 November 2021 Dwg No. A06.02 Revision A Outdoor Play Area Solar Cals 5 November 2021 Landscape Plan 2 Dwg No. LPS34 21 – 338 / 1 Revision F Hardscape Plan Conzept Landscape Architects 17 November 2022 Dwg No. LPS34 21 – 338 / 2 Revision F Landscape Plan Dwg No. LPS34 21 – 338 / 3 Revision F Details Dwg No. LPS34 21 – 338 / 4 Revision F Details Dwg No. LPS34 21 – 338 / 5 Revision F Details Dwg No. LPS34 21 – 338 / 6 Revision F Specifications Reports / documents 3 Plan of Management 16 December 2022 4 Traffic Impact and Parking Assessment Report Greenview Consulting 29 September 2022 5 Traffic Letter Greenview Consulting 23 November 2022 6 Traffic Letter Greenview Consulting 16 December 2022 7 Environmental Noise Impact Assessment Day Design Pty Ltd 17 November 2022 8 Supplementary Statement of Environmental Effects Planning Ingenuity 29 September 2022 9 Flooding Advice ACOR Consultants 20 September 2022 Orders 1. The Court orders that: 1. The Appeal is upheld. 2. Development consent is granted to Development Application No. DA 433.1/2021, as amended, for the demolition of existing structures, removal of trees, construction of a one (1) storey child care centre for a maximum of twenty-four (24) children, with six (6) parking spaces, landscaping and associated site works on land legally described as Lot 6 in DP 36181 and known as 49 George Street, Canley Heights, NSW, 2166, subject to the conditions at Annexure A. 3. The Applicant is directed to pay the Respondent's costs thrown away under s.8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $7,000. L Sheridan 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: 14 March 2023