Land and Environment Court New South Wales Medium Neutral Citation: Trustees of the Roman Catholic Church for the Diocese Of Maitland-Newcastle v Newcastle City Council [2023] NSWLEC 1128 Hearing dates: Conciliation conference on 17 March 2023 Date of orders: 23 March 2023 Decision date: 23 March 2023 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld; (2) Development consent is granted to development application DA2019/00966 for development described as alterations / Additions to Educational establishment (630 students), new Childcare facility (79 places) and Subdivision – Community title (2 into 3 lots), associated site works, carparking, landscaping and signage, subject to conditions of consent at Annexure A. Catchwords: APPEAL – development application – alterations and additions to an existing school and the construction of a centre based child care facility – conciliation conference – agreement reached – orders made Legislation Cited: Biodiversity Conservation Act 2016, s 7.7 Biodiversity Conservation Regulation 2017, cl 7.2 Coal Mine Subsidence Compensation Act 2017, s 22 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 7.4, 7.7, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Newcastle Local Environmental Plan 2012, cll 2.6, 4.1AA, 6.2 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021 ss 2.48, 3.22, 3.23, 3.25, 3.58, Ch 3, Sch 9 s 3 Texts Cited: NSW Planning and Environment, Child Care Planning Guideline, August 2017 Category: Principal judgment Parties: Trustees of the Roman Catholic Church for the Diocese Of Maitland-Newcastle (Applicant) Newcastle City Council (Respondent) Representation: Counsel: D Gunter (Solicitor) (Applicant) A Jucha (Respondent) Solicitors: Sparke Helmore (Applicant) Newcastle City Council (Respondent) File Number(s): 2022/85947 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for alterations and additions to an educational establishment, including the construction of a new centre based child care facility, and community title subdivision, at 30-31 Vista Parade, Kotara (the site). The development application was refused on 29 March 2021. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. 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 17 March 2023. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed on the same date, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amendments to the development application include changes to the turning circle for pick up and drop off of students on the site, and also include amended civil engineering plans reflecting the public works to be carried out along Vista Parade, including its widening. The amended development application also incorporates an amended subdivision plan, a draft community management statement, a traffic management plan and an offer to enter into a Voluntary Planning Agreement (VPA). The VPA includes the dedication of land to the Council to widen Vista Parade, as well as the carrying out of works for the road widening of Vista Parade, the construction of a dedicated right hand turn lane into the site, and the construction of a roundabout and intersection upgrade work on the intersection of Princeton Avenue and Vista Parade 4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Note that sets out the jurisdictional matters about which the consent authority must be satisfied prior to the grant of development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The site is zoned R2 Low Density Residential pursuant to the Newcastle Local Environmental Plan 2012 (NLEP) and development for the purposes of an educational establishment and centre-based childcare facility are permissible with development consent in the zone. Further, the community title subdivision is permissible with consent pursuant to cl 2.6 of the NLEP. * The proposed development complies with the development standard for the minimum subdivision lot size, pursuant to cl 4.1AA(3), and there are no development standards for building height or floor space ratio for the site. * The development application includes earthworks for the provision of the driveway access and turning area. Based on the cut and fill plan, the Stormwater Treatment Management Plan Report and the Geotechnical Investigation dated 1 March 2019, I have considered the matters set out in cl 6.2(3) of the NLEP. * Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) concerns educational establishments and child care facilities and applies to the proposed development. The centre based child care facility that forms part of the proposed development complies with the requirements for unencumbered indoor and outdoor space, and therefore concurrence of the Regulatory Authority is not required by s 3.22. In accordance with s 3.23 and based on the Statement of Environmental Effects, I have considered the applicable provisions of the Child Care Planning Guideline. The floor space ratio control in s 3.25 of SEPP TI does not apply to the development application due to the savings provision in s 3(a) of Sch 9. * The proposed development could affect an underground electricity power line or an electricity distribution pole, as a result of which s 2.48 of the SEPP TI requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Ausgrid was notified of the development application and I have considered the content of their response. * The proposed development is traffic generating development, and Transport for NSW has been notified pursuant to s 3.58 of the SEPP TI and I have considered their response. * Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Phase 1 Site Investigation Reports dated 19 February 2020, the site is unlikely to contain any ground contamination and is suitable for the proposed use. * The proposed development includes the clearing of vegetation to the extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(4) of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a biodiversity development assessment report (BDAR) is therefore required pursuant to the Biodiversity Conservation Act 2016 (the BC Act). Consistent with s 7.7 of the BC Act, the amended development application includes a BDAR prepared by NGH Environmental dated January 2020. The BDAR concludes that the clearing of vegetation for implementation of the asset protection zone is unavoidable, the site does not have vegetation characteristic of threatened ecological communities or threatened species likely to frequent the site, and the payment of biodiversity offset credits is required only for the loss of two vegetation zones. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied. * The proposal is integrated development pursuant to s 100B(3) of the Rural Fires Act 1997 and s 22 of the Coal Mine Subsidence Compensation Act 2017. The NSW Rural Fire Service has issued a Section 100B Bush Fire Safety Authority, and Subsidence Advisory NSW have issued General Terms of Approval, which satisfies the matters in s 22 of the Coal Mine Subsidence Compensation Act 2017. * The proposed development was notified between 9 and 25 September 2019, and 13 submissions were received. I have considered the issues raised by those submissions, which are listed in the Statement of Facts and Contentions. 1. Further, the VPA provides a lawful manner in which interests in land can be dedicated to Council and I am satisfied that the proposed VPA meets the requirements of s 7.4 of the EPA Act, including that it provides for the dedication of land and the carrying out of works, and the provision of a material public benefit, to be used for a public purpose. In exercising the functions of the consent authority, the Court has the power to impose the conditions of consent, pursuant to ss 4.16(1) and 4.17 of the EPA Act. Pursuant to s 7.7(3), this power extends to the imposition of the condition of consent that requires the developer to enter into the VPA in the terms of the offer made by the developer. 2. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 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 assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 4. The Court notes that: 1. The Hunter and Central Coast Regional Planning Panel, as the relevant consent authority, has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application DA2019/00966 in accordance with the documents below: Plan/Supporting Document Reference/Revision Prepared By Dated Architectural plans Site Plan Revision JJ, Sheet 201 Webbers 26 October 2022 Site Plan – Setback – Option 3 Revision J, Sheet 0222 Webbers 26 October 2022 Floor Plan – EEC Revision R, Sheet 301 Webbers 5 October 2022 Roof Floor Plan - EEC Revision N, Sheet 302 Webbers 5 October 2022 Engineering plans Road Widening and Right Turn Bay on Vista Pde – General Arrangement Plan Option 1 Drawing SKE-0101, Revision 8 BTE Consulting 2 February 2023 Road Widening and Right Turn Bay on Vista Pde – Road Widening Plan, Option 1 Drawing SKE-0111, Revision 05 BTE Consulting 23 September 2022 Intersection of Princeton Ave and Vista Pde – General Arrangement Plan, Sheet 1 of 2 Drawing SKE-0001, Revision 03 BTE Consulting 23 September 2022 Intersection of Princeton Ave and Vista Pde – General Arrangement Plan, Sheet 2 of 2 Drawing SKE-0002, Revision 07 BTE Consulting 7 February 2023 Landscape plans Landscape Master Plan Number L001, Revision K Terras Landscape 6 October 2022 Detailed Area A Number L002, Revision L Terras Landscape 6 October 2022 Detailed Area B Number L003, Revision L Terras Landscape 6 October 2022 Detailed Area C Number L004, Revision K Terras Landscape 6 October 2022 Detailed Area D Number L005, Revision K Terras Landscape 6 October 2022 Landscape Signage Schedule Number L008, Revision K Terras Landscape 6 October 2022 Asset Protection Zone Number L013, Revision I Terras Landscape 6 October 2022 Supporting documentation Subdivision Plan Sheet 2 of 2 Ref. B1890SUB-1-D Parker 26 October 2022 Scanlon Community Management Statement Revision 1 • October 2022 Traffic Management Plan - - October 2022 Letter from Hunter Water 2019-913 Hunter Water 2 September 2022 Revised Traffic and Parking Assessment PT1410 St James RFI Traffic and Parking SECA 26 August 2022 Solution 1. The amended application identified above was lodged on the NSW Planning Portal on 28 February 2023. 2. The applicant filed the amended application with the Court on 16 March 2023. 1. The Court orders that: 1. The appeal is upheld; 2. Development consent is granted to development application DA2019/00966 for development described as alterations / Additions to Educational establishment (630 students), new Childcare facility (79 places) and Subdivision – Community title (2 into 3 lots), associated site works, carparking, landscaping and signage, subject to conditions of consent at Annexure A. ………………………. J Gray Commissioner of the Court Annexure A (707346, 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: 23 March 2023