Land and Environment Court New South Wales Medium Neutral Citation: Kyrich Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 1190 Hearing dates: Conciliation conference held on 30 March and 5 April 2023 Date of orders: 09 May 2023 Decision date: 09 May 2023 Jurisdiction: Class 1 Before: Bradbury AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application DA2020/449 for an 87 place childcare centre, with 22 car parking spaces, associated landscaping, earthworks, retaining walls, fencing and drainage works on the land described as Lots 502, 503 and 504 DP 1201968 and Lot 506 DP 1201969 known as 2 and 4-8 Eliza Place, Picton subject to the conditions in Annexure A. (3) In accordance with s 8.13(3) of the Environmental Planning and Assessment Act 1979, this development consent takes effect on the date these orders are made. (4) The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. Catchwords: APPEAL – development application – centre-based childcare facility – conciliation conference – agreement reached – orders made Legislation Cited: Coal Mine Subsidence Compensation Act 2017, s 22 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7, 8.10, 8.13, 8.15 Environmental Planning and Assessment Regulation 2000, cll 3, 49, 50, 55, Sch 1 cl 2A Environmental Planning and Assessment Regulation 2021, Sch 6, Pt 1 s 3 Interpretation Act 1987, s 30A Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, ss 9.4, 9.5 State Environmental Planning Policy Amendment (Water Catchments) 2022 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, Pts 1-7, Sch 1-5 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) Amendment 2021, s 24A, Sch 9 s 3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 1.4, 2.122, Ch 3 Pts 3.1-3.7, ss 3.22, 3.23, 3.26, Sch 5-9, Sch 9 s 1, Sch 12 s 2 Wollondilly Local Environmental Plan 2011, cll 2.3, 4.3, 5.10, 7.1, 7.5, 7.9 Texts Cited: NSW Planning & Environment, Child Care Planning Guideline, August 2017 Wollondilly Community Participation Plan Wollondilly Development Control Plan 2016 Category: Principal judgment Parties: Kyrich Pty Ltd (Applicant) Wollondilly Shire Council (Respondent) Representation: Counsel: M Staunton (Applicant) T March (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Hones Lawyers Pty Ltd (Respondent) File Number(s): 2021/295821 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application (DA) for a proposed centre-based childcare centre in Picton. The Site 1. The land the subject of the DA comprises Lots 502 and 503 DP 1201968 and Lot 506 DP 1201969 known as Nos. 4 – 8 Eliza Place, Picton (Site). On 30 March 2023 the DA was amended to include Lot 504 DP 1201968 (known as No. 2 Eliza Place, Picton) for the purpose of enabling the imposition of a condition of consent to prevent any obstruction of the sight line achieved by the splayed fence on the north-eastern corner of that lot. 2. The Site is hatchet shaped and has a total area of 2,835.4m2. Access to the Site from Eliza Place is by an access handle 11.025m wide and 54.525m long. The Site has a frontage to Argyle Street of approximately 39m. Argyle Street is Picton's main shopping street and the Site is centrally located a few blocks beyond the Picton commercial centre. Argyle Street is a classified road. 3. The Site slopes in a north-western direction with a fall of some 7.5m across the Site. The south-eastern corner is the highest point on the Site. 4. The Site is currently vacant and adjoins an established residential area. It is also located next to a heritage listed dwelling house at 42 Argyle Street. The Proposed Development 1. The DA seeks development consent for an 87 place centre-based childcare centre with 22 car parking spaces, associated landscaping, earthworks, retaining walls, fencing and drainage works (Proposed Development). 2. The three existing lots are to be consolidated and some of the existing drainage easements are to be extinguished. 3. Access to the Proposed Development will be from Eliza Place by a right hand turn in and left hand turn out along the existing right of way that provides access to the Site from Eliza Place. Eliza Place is a cul-de-sac which connects by roundabout to Argyle Street. It is a 7m wide two-way carriageway for its first 30m and then separates into upper and lower one-way carriageways separated by a landscaped median strip and retaining wall. The appeal 1. The DA was made to the Council on 11 August 2020 (Council reference DA010.2020.00000449.001). It was publicly notified in accordance with the Council's Community Participation Plan between 17 August and 14 September 2020. During the notification period, the Council received 5 submissions which raised issues in relation to traffic and parking, streetscape, heritage, public safety, noise and privacy. 2. The DA was amended with the leave of the Court on 16 June 2022 and the amended DA was publicly notified between 23 June and 7 July 2022. Seven submissions were received. The DA was further amended with the leave of the Court on 21 February 2023 and again, with the agreement of the Council, on 30 March 2023. 3. The DA was refused by the Council on 20 August 2021. The Applicant appeals from that decision pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court's jurisdiction. 4. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act. 5. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on 8 March 2022. When the parties were unable to reach agreement as to the terms of a decision in the proceedings that would be acceptable to them, the conciliation conference was terminated and the appeal was listed for hearing for 5 days commencing on 27 March 2023. Discussions between the parties' experts during the course of the hearing led to the resolution of many of the Council's contentions and, at the request of the parties, the Court convened a further conciliation conference under s 34 of the LEC Act on 30 March and 5 April 2023. I presided over the conciliation conference. 6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. This decision involves the Court upholding the appeal and granting development consent to the development application in an amended form subject to conditions. 7. The final signed agreement was lodged with the Court on 6 April 2023 and is supported by an Agreed Statement – Jurisdictional Prerequisites provided by the parties on 5 April 2023. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 8. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the reasons that follow. The statutory conditions on the grant of development consent The conditions in the EPA Act and Regulation 1. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act. 2. Section 4.15(1)(d) of the EPA Act requires the consent authority to take into consideration any submissions made in accordance with the Act or the regulations. In addition to the written submissions referred to in pars [9] and [10] above, oral evidence was given to the Court by some of the submitters on 1 February 2023 which elaborated on their written submissions. The parties agree, and I accept, that the matters raised by these submissions have been adequately addressed in the amended application and conditions of consent, where relevant. 3. The Environmental Planning and Assessment Regulation 2000 (EPA Regulation) was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply, instead of the 2021 Regulation, to a development application made but not finally determined before that date: 2021 Regulation, Sch 6 Pt 1 s 3. The DA was made before, but had not been finally determined by, 1 March 2022 so the EPA Regulation continues to apply to the DA. Clause 49(1)(b) of the EPA Regulation) provides that a development application may be made by the owner of the land to which the development application relates or by any other person, with the consent of the owner of that land. Each of the three lots that make up the Site are owned by the Applicant. As noted at par [2], the DA also includes Lot 504 DP 1201968 but only for the purpose of enabling the imposition of a condition of consent to prevent any obstruction of the sight line achieved by the splayed fence on the north-eastern corner of that lot. The consent of the owner of Lot 504 has also given to the making of the DA. 4. Clause 50 and cl 2A(1) of Sch 1 to the EPA Regulation requires a development application for any BASIX affected development to be accompanied by a BASIX certificate for the development. The proposed development is BASIX affected development as defined in cl 3(1) of the EPA Regulation. The DA is accompanied by BASIX Certificates issued by ESD Synergy (Certificates Nos. A446803, A446817, A446824 and A446698). 5. The Site is located within the Bargo Mine Subsidence District and the Proposed Development requires approval under s 22 of the Coal Mine Subsidence Compensation Act 2017 (Subsidence Act). The requirement for approval under the Subsidence Act means that the Proposed Development is integrated development for the purposes of s 4.46 of the EPA Act and the DA was referred to Subsidence Advisory NSW on 17 August 2020. General Terms of Approval were given to the DA on 22 August 2020. The conditions in the LEP Zoning 1. The Site is within Zone R2 – Low Density Residential under the Wollondilly Local Environmental Plan 2011 (LEP). The Proposed Development is permitted with development consent on land within that zone. Zone objectives 1. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. The objectives of Zone R2 – Low Density Residential 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 support the health and well-being of the community by providing well-connected and walkable residential areas close to services and employment. 1. The parties agree that the DA meets the zone objectives and, in determining the DA, I have had regard to those objectives. Building height 1. Clause 4.3 of the LEP provides that the height of any building must not exceed the maximum height shown on the Height of Buildings Map which forms part of the LEP. The Height of Buildings Map indicates a maximum allowable height of 9m for the Site and the Proposed Development is less than the maximum allowable height. Heritage Conservation 1. Clause 5.10(4) of the LEP provides that, before granting development consent in respect of a heritage item, the consent authority must consider the effect of the Proposed Development on the heritage significance of the item concerned. 2. The Site adjoins a heritage item, being the house at 42 Argyle Street and, in accordance with cl 5.10(5) of the LEP, the Council required the Applicant to provide a heritage management statement. The DA is accompanied by a heritage management statement prepared by EPS dated June 2020. The parties also each engaged heritage experts to assist with the assessment of the DA and the DA was amended to reflect their advice. I am satisfied that the parties' agreement takes into account the effect of the Proposed Development on the heritage significance of the heritage item at 42 Argyle Street. Essential services 1. Clause 7.1 of the LEP provides that development consent must not be granted to development unless the consent authority is satisfied that any of the services referred to in that clause that are essential for the development are available or that adequate arrangements have been made to make them available when required. The DA relates to land that is located in an existing urban area and I am satisfied that all of the specified essential services are available to the Site. Earthworks 1. Clause 7.5(3) of the LEP provides that, in deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters set out in that clause. A geotechnical assessment report prepared by Douglas Partners dated 23 January 2023 accompanied the DA and the parties' agreement involves the granting of consent subject to a number of conditions in relation to the proposed earthworks. I accept the agreed submission of the parties that the matters set out in cl 7.5(3) of the LEP are satisfactorily addressed by the DA. Development within metropolitan rural area 1. Clause 7.9(3) of the LEP provides that development consent must not be granted to development on land to which the clause applies unless the consent authority has considered the matters set out in that subclause. The Site forms part of the land identified as "Metropolitan Rural Area" on the Metropolitan Rural Area Map in the LEP and is therefore land to which cl 7.9(3) applies. A joint expert report prepared by the parties' town planning experts dated 23 March 2023 includes a table at paragraph 77 that addresses each of the matters referred to in cl 7.9(3) and I am satisfied that those matters have been properly taken into account in the parties' agreement. The conditions in State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) 1. The Hazards SEPP precludes the granting of development consent unless the consent authority has considered relevantly whether the Site is contaminated. Section 4.6(2) of the Hazards SEPP requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4). 2. The DA is accompanied by a detailed site investigation prepared by Consulting Earth Scientists dated 22 March 2023 which concludes that the Site has a low risk of contamination in fill materials or from historic site use, is considered to be suitable for use as a childcare centre, and that no further investigation, remediation or management is required. Accordingly, the Court is satisfied that the Site is not contaminated and is suitable for the Proposed Development. The conditions in the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) 1. The DA was lodged prior to the repeal of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Education SEPP) which occurred on 1 March 2022. Whether the provisions of the Education SEPP continue to apply or the provisions of the Transport SEPP now apply, the parties agree (and I accept) that the applicable provisions are in the same terms. 2. The Transport SEPP as made on 2 December 2021 included Sch 12 s 2 which transferred the provisions of Parts 1-7 of the Education SEPP to the Transport SEPP as Ch 3, Parts 3.1 - 3.7. Schedules 1 – 5 of the Education SEPP were also transferred to the Transport SEPP as Sch 5 – 9. 3. Section 1.4 of the Transport SEPP provides that the Interpretation Act 1987, s 30A is taken to apply to the provisions transferred to the Transport SEPP. Section 30A of the Interpretation Act is as follows: 30A Transferred provisions (1) This section applies where a provision is transferred from an Act or statutory rule to another Act or statutory rule and an Act or statutory rule states that the provision is a transferred provision to which this section applies. (2) The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred. (3) This section applies whether or not the provision is modified, but has effect subject to any such modification. 1. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) Amendment 2021 (2021 Amendment) was made on 17 December 2021. Relevantly, this: 1. amended the definition of Child Care Planning Guideline; and 2. added a floor space ratio development standard (as s 24A). 1. However, a savings and transitional provision was included in the 2021 Amendment (Sch 9, s 3) which provides that the amendments made by the 2021 Amendment do not apply to development applications made but not finally determined before the commencement of the 2021 Amendment on 17 December 2021. As the DA had been made but had not been determined before that date, the 2021 Amendment does not apply to the DA. The Child Care Planning Guideline dated August 2017 continues to apply to this DA. 2. Schedule 9, s 1(1) of the Transport SEPP provides that: Chapter 3 does not apply to or in respect of the determination of a development application made under Part 4 of the Act, but not finally determined before the commencement of Chapter 3. 1. As Ch 3 comprises the transferred Parts 1 – 7 of the Education SEPP, that Chapter commenced when the Education SEPP (rather than the Transport SEPP) was made on 1 September 2017. As the DA was made after that date, Sch 9, s 1(1) does not apply to the DA and Ch 3 of the Transport SEPP continues to apply to the DA. 2. Part 3.3 of the Transport SEPP is contained in Ch 3 and applies to development for the purpose of centre-based childcare facilities. Sections 3.22, 3.23 and 3.26 are relevant: 1. Section 3.22 prevents the grant of consent without the concurrence of the Regulatory Authority if the development does not meet the requirements for indoor and outdoor play areas contained in cll 107 and 108 respectively of the Education and Care Services National Regulations. The Proposed Development complies with the requirements for indoor and outdoor unencumbered space under those regulations and the concurrence of the Regulatory Authority is therefore not required. 2. Section 3.23 requires the consent authority to take into consideration the Childcare Planning Guidelines. The parties agree, and I accept, that the relevant provisions of the Childcare Planning Guidelines have been taken into account in the DA and the proposed conditions of consent. 3. Section 3.26 prescribes certain non-discretionary development standards with which the Proposed Development complies. 1. Section 2.122 of the Transport SEPP applies to the Proposed Development which is "traffic generating development" because the access to the Site is within 90m of its connection to Argyle Street, a classified road, and the Proposed Development will generate 50 or more motor vehicles per hour. Section 2.122(4) of the Transport SEPP provides that: (4) Before determining a development application for development to which this section applies, the consent authority must— (a) give written notice of the application to TfNSW within 7 days after the application is made, and (b) take into consideration— (i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, TfNSW advises that it will not be making a submission), and (ii) the accessibility of the site concerned, including— (A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and (B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and (iii) any potential traffic safety, road congestion or parking implications of the development. 1. The application was notified to Transport for NSW (TfNSW) under s 2.122(4) of the Transport SEPP, which responded on 18 July 2022 raising concern about the potential of the Proposed Development to create queuing at the Eliza Place/Argyle Street roundabout and consequent interference with the performance of the roundabout and classified road network. 2. The parties' traffic experts prepared a joint expert report dated 16 March 2023 in which they consider the TfNSW submission. Their agreed position is that the Proposed Development will result in only minor increases in delays at the roundabout and will not materially impact on traffic safety. They were also satisfied that the development complies with the parking control in the Wollondilly Development Control Plan 2016. They also agree, and I accept, that the right turn in and left turn out proposal is acceptable and will not result in unacceptable queuing and that intervisibility between vehicles exiting the Site and pedestrians and vehicles entering the Site will be acceptable notwithstanding the existence of the picket fence on Lot 504 DP 1201968. The conditions in the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) 1. The Biodiversity SEPP applies to the DA because the Site is within the Hawkesbury-Nepean Catchment. 2. The DA was lodged on 11 August 2020. Chapters 6 to 12 of the Biodiversity SEPP were omitted by State Environmental Planning Policy Amendment (Water Catchments) 2022 (Amending SEPP) on 21 November 2022 and a new Ch 6 was added to the Biodiversity SEPP. These amendments do not apply to the DA because the Amending SEPP includes a savings provision in cl 6.65(1) which provides that the provisions of Ch 9 of the Biodiversity SEPP, as it existed prior to its repeal, continue to apply to the DA. Chapter 9 of the Biodiversity SEPP provides that the general planning considerations and specific planning policies and recommended strategies referred to in ss 9.4 and 9.5 must be taken into consideration by a consent authority in determining an application for consent to the carrying out of development on land to which Ch 9 applies. 3. An assessment of the DA against the relevant provisions of Ch 9 of the Biodiversity SEPP is set out in paragraph 8(c) of a Joint Expert Report prepared by the parties' planning experts and filed on 23 March 2023 by reference to another joint expert report prepared by the parties' civil engineering experts and filed on 16 March 2023. I am satisfied that the DA and proposed conditions of consent satisfactorily address the matters required to be addressed by Ch 9 of the Biodiversity SEPP. 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 by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that the Respondent as the relevant consent authority has agreed under cl 55 of the EPA Regulation to the Applicant amending the DA in accordance with the following: 1. Design plans prepared by Accurate Design & Drafting (Rev AE) dated 29 March 2023 as follows: Sheet No. Description 1 Cover Page 2 Lower Floor Plan 3 Ground Floor Plan 4 Front & Rear Elevations 5 Side Elevations 6 Site Plan 7 Schedule of External Colours 1. Landscape plans prepared by Moir Landscape Architecture (Rev O), LP01-05 dated 30 March 2023 2. Civil Engineering Drawings (Rev J) prepared by D&M Consulting Pty Ltd, Sheets 1 to 21 dated 26 March 2023 3. Amended Acoustical Assessment, prepared by 'The Acoustic Group', reference – 53.5489.R1C:MSC, dated 26 March 2023 4. Operational Plan of Management dated 29 March 2023 Version 9 5. Stormwater Management Report prepared by DMC Civil and Structural Pty Ltd, Revision G, dated 26 March 2023 6. Detailed Site Investigation Report prepared by Consulting Earth Scientists Pty Ltd dated 22 March 2023 7. Report on Salinity Investigation prepared by Douglas Partners dated February 2023 8. Report on Preliminary Groundwater Assessment prepared by Douglas Partners dated February 2023 9. Updated retaining wall detail and construction procedure for carpark, - prepared by ExpertESA dated 29 March 2023 10. Proposed Pedestrian Sight Lines with 5.6m Roadway prepared by Terraffic 11. The inclusion of Lot 504 DP 1201968 for the purpose of imposing a condition requiring the preparation and registration on title of a restrictive covenant to ensure maintenance of a sight line. 1. The Court further notes that the Respondent has agreed that, upon the consolidation of Lots 502, 503 and 506 and the issue of a construction certificate in accordance with the consent granted in these proceedings: 1. That part of the easement to drain water 1.5 wide on lot 502 (marked A on DP1201968 which benefits lot 503 and part of lot 501 designated 'W' on the plan and which burdens lot 502, being item 1 in registered dealing DP1201968), between lot 501 and lot 503, but not that part which runs along the southern and western boundaries of lot 502 will be released. 2. That part of the easement to drain water 1.5 wide (marked A1 on DP1201969) that runs along the north-western boundary of lot 506 in DP120969 excluding the 1.5 wide drainage easement that runs along the south-western boundary of lot 506 in DP1201969 which benefits lots 507 & 508 and burdens lot 506 in DP1201969 being item 1 in registered dealing DP1201969 will be released; 3. That the restriction as to user in item 4 of registered dealing DP1201968 which burdens lot 502 in DP1201968 will be varied so that paragraph (2) above does not apply to the development the subject of the consent granted in these proceedings. 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application DA2020/449 for an 87 place childcare centre, with 22 car parking spaces, associated landscaping, earthworks, retaining walls, fencing and drainage works on the land described as Lots 502, 503 and 504 DP 1201968 and Lot 506 DP 1201969 known as 2 and 4-8 Eliza Place, Picton subject to the conditions in Annexure A. 3. In accordance with s 8.13(3) of the Environmental Planning and Assessment Act 1979, this development consent takes effect on the date these orders are made. 4. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. A Bradbury Acting Commissioner of the Court 295821.21 Annexure A (427371, 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: 09 May 2023