Land and Environment Court New South Wales Medium Neutral Citation: Fourways Motors (Bankstown) Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1173 Hearing dates: Conciliation conference on 2 and 16 March 2023 Date of orders: 14 April 2023 Decision date: 14 April 2023 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The Applicant is to pay the Respondents costs thrown away pursuant to s 8.15(3) of the Environmental Planning & Assessment Act 1979 in the agreed amount of $5,000. (2) The appeal is upheld. (3) Development application No. DA22/0752, seeking consent for the demolition for existing structures and construction of a childcare centre with basement parking at 137-139 Loftus Avenue, Loftus, is determined by the grant of consent subject to the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 7.7, 8.7 Environment Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, ss 34 Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 6.1, 5.10, 5.21,6.1, 6.2, 6.4, 6.14, 6.18 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Industry and Employment) 2021, Ch 3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s. 2.99, Chs 2, 3 Texts Cited: Department of Planning and Environment, Child Care Planning Guideline, 2017 Sutherland Shire Council, Community Engagement Policy, 2019 Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Fourways Motors (Bankstown) Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: N Eastman (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Simpson Partners (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2022/326446 Publication restriction: No Judgment 1. COMMISSIONER: Fourways Motors (Bankstown) Pty Ltd (the Applicant) has appealed the deemed refusal by Sutherland Shire Council (the Respondent) of Development Application DA22/0752 seeking consent for the demolition for existing structures and construction of a childcare centre with basement parking (Proposed Development) on Lots 756 and 757 in DP 75064 in Deposited Plan 752064 known as 137-139 Loftus Ave, Loftus (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 between 9 September and 27 September 2022, under the provisions of Sutherland Shire Council's Community Engagement Policy 2019, and two submissions being received. 4. On 2 and 26 March 2023, 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. A site inspection had been undertaken prior to the commencement of the conciliation conference. 5. Under the Parties' agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant's amended development application, subject to conditions. 6. 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. 7. 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 further provisions of the EP&A Act: 1. the Applicant has offered to pay for traffic calming devices in accordance with the Letter of Offer from Simpson Partners dated 15 March 2023 and s 7.7(3) of the EP&A Act permits a consent authority to require a planning agreement as a condition of consent if it is the terms of an offer made in connection with a development application; 1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H): 1. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this: 1. the Applicant has provided a Preliminary Site Investigation (Contamination) prepared by Martens Consulting Engineers dated May 2022; and 2. I am satisfied that the Subject Site is not contaminated and that it is suitable for its intended use under the Proposed Development; and 3. I am further satisfied that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal. 1. in relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C): 1. the Applicant has provided an Arboricultural Impact Assessment Report prepared by Jacksons Nature Works dated 15 June 2022; and 2. I am satisfied that Subject Site is suitable for the Proposed Development and consistent with the provisions of SEPP B&C; 1. in relation to the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I): 1. the Parties have considered the provisions of Ch 2 of SEPP T&I, and the Applicant's Noise Assessment prepared by Renzo and Tonin Associates dated 4 May 2022, and they agree, and I am satisfied, that Proposed Development is suitable for the Site. 2. the Parties have considered the provisions of Ch 3 of SEPP T&I, as well as the provisions of Parts 2 and 3 of the Child Care Planning Guidelines 2017 (the Guideline) and they agree, and I am satisfied that Proposed Development compiles with the relevant controls of SEPP T&I and the Guideline; 3. concerning the provisions of s 2.99(4) of SEPP T&I the Applicant's development application was referred to Transport for NSW which has granted concurrence and issued general terms of approval to the proposed development via its letter dated 7 October 2022; 1. in relation to the provisions of State Environmental Planning Policy (Industry and Employment) 2021 (SEPP I&E), the Proposed Development compiles with the relevant controls in Ch 3 of SEPP I&E in relation to advertising and signage; 2. in relation to the provisions of Sutherland Shire Local Environmental Plan 2015 (SSLEP): 1. the Subject Site is zoned R2: Low Density Residential under the provisions of cl 2.3 of SSLEP, and the Proposed Development, being a centre-based childcare facility within the R2 zone, is permissible with consent; 2. the Proposed Development complies with all relevant development standards in SSLEP as summarised below: 1. the Proposed Development complies with the 8.5m maximum height of buildings development standard for the Subject Site under cl 4.3 of SSEP. 2. the Proposed Development complies with the maximum floor space ratio allowable on the Subject Site of 0.55:1 under cl 4.4 of SSLEP for this Site. 3. the Subject Site does not contain acid sulfate soils and consequently the Applicant's proposed earthworks, supported by the Preliminary Geotechnical Assessment prepared by Martens dated May 2022 are acceptable under cll 6.1 and 6.2 of SSLEP which are satisfied. 4. the Proposed Development's stormwater plans satisfy the requirements of cl 6.4 of SSLEP in relation to stormwater management; 5. the Proposed Development provides landscaping area that is above the minimum landscape area of 25% required for centre based childcare facilities on land zoned R2 Low Density Residential under cl 6.14(5) of SSLEP; 6. the Parties agree, and I am satisfied, that the Proposed Development achieves the requirements of cl 6.18 of the SSLEP in relation to urban design – non-residential development in residential areas and that the development integrates, and responds to, the local character of the locality, and that traffic related impacts have been considered and found suitable; 7. the Parties also agree, pursuant to the provisions of cl 5.10 of SSLEP, that neither the property on the Subject Site nor the Subject Site itself is a heritage item nor is it within a heritage conservation area and there are no Aboriginal sites recorded or Aboriginal places declared in, near or above the Subject Site; and 8. the Parties also agree, that, pursuant to the provisions of cl 5.21 of SSLEP, the Subject Site is not identified as flood prone land in the flood maps in SSLEP; 1. in relation to the provisions of Sutherland Shire Development Control Plan 2015 (SSDCP) the Parties have considered the provisions of SSDCP, and they agree, and I am satisfied, that the Proposed Development is compliant with the provisions of the following relevant parts of SSDCP or if not, it achieves the objectives of the controls in SSDCP; 2. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act. 1. Having considered the advice of the Parties, provided above at [7], I agree that: 1. regard has been had to the objectives of the Subject Site's 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, including in relation to the submissions received in response to notification, which have been considered by the Parties in reaching agreement; 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 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 Applicant has amended development application No. DA22/0752, with the agreement of Sutherland Shire Council, the Respondent, as the relevant consent authority, pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021; 2. the Applicant's amended application relies on the following documents and plans: Plan number Reference Prepared by Date A0.00 Issue D General Notes Creative Drafting Services 08.03.23 A1.00 Issue D Site Plan Creative Drafting Services 08.03.23 A1.01 Issue D Basement Carpark Layout Creative Drafting Services 08.03.23 A1.02 Issue D Ground Floor Layout Creative Drafting Services 08.03.23 A1.03 Issue D Roof Layout Creative Drafting Services 08.03.23 A1.04 Issue D Playground Set-outs Creative Drafting Services 08.03.23 A1.05 Issue D Elevations 1 - 4 and Section 5 Creative Drafting Services 08.03.23 A1.06 Issue D Coloured Scheme Elevations Creative Drafting Services 08.03.23 A1.07 Issue D Coloured Scheme Elevations Creative Drafting Services 08.03.23 A1.09 Issue D Site Cut and Fill Plan Creative Drafting Services 08.03.23 A1.12 Issue D Demolition Plan Creative Drafting Services 08.03.23 A1.16 Issue D Kitchen Set-Out and Elevations Creative Drafting Services 08.03.23 F1.00 Issue D Emergency Evacuation Plan Creative Drafting Services 08.03.23 Sheet 1 Revision C1 Landscape Concept Monaco Designs 02.02.23 Sheet 2 Revision C1 Landscape Details Monaco Designs 02.02.23 Sheet 1 Revision A Plan of Drainage Works CPM Engineering 30.01.23 Sheet 2 Revision A Plan of Site Drainage and Erosion & Sediment Control Plan Basement CPM Engineering 30.01.23 Sheet 3 Revision A Plan of Site Drainage and Erosion & Sediment Control Plan Ground Level CPM Engineering 30.01.23 Sheet 4 Revision A Plan of Downstream Drainage Works CPM Engineering 30.01.23 Plan of Management Anthony Keogh 07.03.23 DA Noise Assessment of Proposed Site of Childcare Centre ref TL253-03F02 Renzo and Tonin Associates 04.05.22 Arboricultural Impact Assessment Report Jacksons Nature Works 15.06.22 Letter of Offer for a Planning Agreement Simpson Partners 15.03.23 Orders 1. The Court orders that: 1. The Applicant is to pay the Respondents costs thrown away pursuant to s 8.15(3) of the Environmental Planning & Assessment Act 1979 in the agreed amount of $5,000. 2. The appeal is upheld. 3. Development application No. DA22/0752, seeking consent for the demolition for existing structures and construction of a childcare centre with basement parking at 137-139 Loftus Ave, Loftus, is determined by the grant of consent subject to the conditions set out in Annexure 'A'". M Chilcott Commissioner of the Court Annexure A (348797, 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: 14 April 2023