Land and Environment Court New South Wales Medium Neutral Citation: Abdul-Rahman v City of Canada Bay Council [2023] NSWLEC 1325 Hearing dates: Conciliation conference on 6 June 2023 Date of orders: 23 June 2023 Decision date: 23 June 2023 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) The appeal is upheld. (2) Development application DA2022/0129 for alterations and additions (including an additional partial storey) to an existing building for the purpose of a childcare centre for 92 children and 19 staff to operate 7am to 6pm Monday to Friday, with 23 parking spaces within the existing basement and ground floor areas is granted development consent subject to conditions in Annexure A (as amended on 27 June 2023). Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Canada Bay Local Environmental Plan 2013, cll 2.3, 2.7 Education and Care Services National Regulations, reg 108 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.14 Environmental Planning and Assessment Regulation 2021, ss 37, 38, 61, 64 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021 Environmental Protection Authority, Managing Land Contamination Planning Guidelines - SEPP 55–Remediation of Land, August 1998 Standards Australia, AS 2601—2001: The Demolition of Structures, September 2001 Category: Principal judgment Parties: Omar Abdul-Rahman (Applicant) City of Canada Bay Council (Respondent) Representation: Counsel: C Novak (Applicant) T Ward (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 2022/228319 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought by the applicant under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA2022/0129 (DA) by City of Canada Bay Council (Council). The DA seeks consent for a new childcare centre, and associated development, at 19/203-211 Great North Road Five Dock, legally described as Lot 19 in SP 30468, and includes part of the common property of SP 30468 (henceforth the site). 2. 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 6 June 2023. I presided over the conciliation conference. Prior to the conference, the parties had filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 3. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 4. 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, as amended. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties outlined jurisdictional matters of relevance (orally during the conference and through a jurisdictional statement provided to the Court on 6 June 2023) and provided an explanation of how they believed jurisdictional matters have or could be satisfied. Below, after considering some other formalities in regard to the application before the Court, I attend to jurisdictional considerations mindful of this advice from the parties. Formalities of the application before the Court Amendment of the application 1. The DA has been amended since the filing of the appeal. While certain amendments were made prior to the conference (through the Court's granting of notices of motion), the conciliation proceedings themselves included further amendments to the DA. Here I note the applicant's application to further amend the application, under s 37 of the Environmental Planning and Assessment Regulation 2021 (EPAR), to embody further changes agreed by the experts. I reference these plans as follows: * Architectural Drawing: DA A1200 Issue I - Basement 01 - prepared by Ghazi Al Ali Architect - dated 5/6/2023. * Landscape Drawing: Concept Plan - First Floor – prepared by Edible Kids Gardens - dated 6.2023. * Landscape Drawing: Concept Plan - Second Floor – prepared by Edible Kids Gardens - dated 6.2023. * Landscape Drawing: Planting Plan - prepared by Edible Kids Gardens - dated 6.2023. 1. Council has indicated it approves this amendment of the application by way of its being a party to the agreement based on them. It would not seem necessary for the Court to have a determination role under s 38 of the EPAR (ie in regard to the determination of an application for amendment of a DA). But if I am wrong on that front, I can indicate here that the Court also approves this further amendment. Owner's consent 1. More significant consideration is needed to the question of owner's consent. As made clear in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 at [8]-[9], a development application can be made by the owner of the land to which the development application relates (in this case the "site" as described at [1]) or by another person with the consent in writing of that owner. There was no dispute that owners' consent documents had been provided in regard to the property described as the site (that is, in regard to both Lot 19 SP 30468 and the common property of SP 30468). However an unusual matter has arisen with respect to a part of the site. 2. The site includes an identifiable area, immediately north of Coogan Lane, occupied by four parking spaces and access. Objecting submissions were made (both orally during the site inspection and in writing) from owners of a property to the east of the site to the effect that these third parties had an interest in the four parking spaces and their access, identified above as falling within the site (Notice of Objectors filed by Council on 3 November 2022, p 2, with explanatory material following). These third parties were objectors to the proposal and had not signed any owner's consent in relation to the DA. 3. A quite detailed analysis of the questions which arise in relation to the claims of these third parties was provided in the parties' agreed jurisdictional statement. It includes an outline of unusual circumstances which have arisen whereby certain documented agreements are evident between former owners of the site and the objectors, predicated upon a strata subdivision of Lot 19 SP 30468. The evidence is that this further subdivision of Lot 19 has not occurred. The parties agree that this claim of an interest in the site, on the part of the third party, is not well founded and that there is no concern about the validity of the DA with respect to this. I accept this agreed advice of the parties. An excerpt of relevant material from the agreed jurisdictional statement is provided at Annexure B. Jurisdiction State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6 requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed. I accept the advice of the parties that given the existing commercial building on site and no evidence of activities nominated at Table 1 in Managing Land Contamination Planning Guidelines - SEPP 55–Remediation of Land (1998), there is no reason to suspect the site is a contaminated site. The requirements of s 4.6 are met. No further investigation of the site is warranted on that front. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. Chapter 3 deals with child care facilities. There are some points in regard to this and related provisions that I need to attend to. 2. Section 3.22 requires the concurrence of the Regulatory Authority prior to the granting of consent for a childcare centre if the criteria in Section 3.22(1) is not met. I am satisfied that the proposal accommodates requirements of s 3.22(1)(a) with respect to indoor unencumbered space requirements. In relation to the provision of outdoor space (s 3.22(1)(b)), the following criterion is to be met if a consent is to be issued without Regulatory Authority concurrence: (b) the outdoor space requirements for the building or place do not comply with regulation 108 (outdoor unencumbered space requirements) of those Regulations. 1. Regulation 108 of the Education and Care Services National Regulations (the Regulations), requires, relevantly, that: (2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space. 1. A considerable portion of the space included in calculations for unencumbered outdoor space falls within the confines of the outer walls of the building on the site (and below a ceiling), on the face of it, located indoors (rather than outdoors); and suggesting the need for concurrence of the Regulatory Authority. Something which has not been provided (or sought). 2. The parties' experts are satisfied with the provision of unencumbered outdoor space. The reasoning behind this was indicated to me, in response to questions I had raised, in a document provided to the Court by the experts on 7 June 2023 (signed by P North, K Gordon and K Barnes). I will move through the explanation as to why the experts were satisfied in regard to the intent in regard to outdoor space requirements now. 3. Section 3.23 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure and Transport) requires the consent authority to take into consideration any applicable provisions of the Child Care Planning Guideline 2021 (2021 Guideline), something I note the Court has undertaken generally with the consideration of this application. But of note here are provisions in the 2021 Guideline for "simulated outdoor environments", as alternative solutions when outdoor space requirements cannot otherwise be met. The 2021 Guideline indicates certain characteristics required of simulated outdoor environments. Insofar as the area I have indicated above to be, on the face of it, indoors, the experts believe, and I accept, that this area qualifies as a "simulated outdoor environment". Section 8.14(3) of the EPA Act provides powers for the Court to determine an appeal whether or not an otherwise required concurrence has been obtained. In this instance I accept the advice of the experts that non-compliance with the numerical control at s 3.22(1)(b) of SEPP Transport and Infrastructure will not hinder the intentions behind this provision (due to the provision of appropriately designed simulated outdoor space) and I invoke s 8.14(3) of the EPA Act in that respect. Canada Bay Local Environmental Plan 2013 1. There is no dispute that the site is zoned MU1 Mixed Use and that the proposed development is permissible with consent under that zone. I have had regard to the MU1 zone objectives as required under cl 2.3(2). The application proposes partial demolition as an inherent part of the alterations and additions. This is permissible under cl 2.7. 2. I accept the advice of the parties that the proposal does not breach any development standards contained within Canada Bay Local Environmental Plan 2013, and that furthermore, no other jurisdictional thresholds apply under this instrument. Other matters for consideration under section 4.15(1) of the EPA Act 1. Canada Bay Development Control Plan applies. I have considered this instrument and note the advice of the parties that the proposal either satisfies the relevant numerical controls or achieves relevant objectives. Otherwise, jurisdictionally, nothing turns on this instrument. The requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met. I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act. 2. The parties advise the proposal was notified in accordance with requirements. Objecting submissions were provided to me by Council for review. As indicated above I also heard directly from one of the objectors during the site inspection (at [9]). Section 4.15(1)(d) of the EPA Act provides that in determining a development application a consent authority is to "take into consideration" submissions. This has been undertaken. I note the parties' advice that objector concerns relating to noise impacts and traffic have been considered in expert reports to the satisfaction of the parties with certain responses to objections embodied in the amended application or via consent conditions. Other matters - Environmental Planning and Assessment Regulation 2021 1. The jurisdictional statement also makes reference to certain other matters in the EPAR. I note the advice that s 61(1) provides that in determining a development application for the demolition of a building, the consent authority must consider the Australian Standard AS 2601—2001: The Demolition of Structures (Standard). The proposed development for alterations and additions includes demolition. I note that the Standard is addressed in Part 5.3.1 of the Statement of Environmental Effects lodged with the application and proposed Condition 66(a) requires compliance with the Standard. 2. Section 64(1) of the EPAR applies as the development involves the alteration of an existing building and the existing fire safety measures are considered inadequate. Accordingly, pursuant to s 64(2), the consent authority must consider whether it is appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia (BCA). Fire safety and BCA compliance has been comprehensively assessed in the BCA & Access 2019 A1 Indicative Compliance Report for DA Lodgement, at Tab 4 in the material comprising Exhibit YK-1 to the affidavit of Yustin Koprivnjak, affirmed 3 March 2023. Proposed Condition 1 requires the development shall be carried out substantially in accordance with the BCA & Access 2019 A1 Indicative Compliance Report. Conclusion 1. Based on the above details, I am satisfied that there is no jurisdictional bar and the parties' decision is one that the Court could have made in the proper exercise of its functions. Therefore, 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 make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. 3. The Court orders: 1. The appeal is upheld. 2. Development application DA2022/0129 for alterations and additions (including an additional partial storey) to an existing building for the purpose of a childcare centre for 92 children and 19 staff to operate 7am to 6pm Monday to Friday, with 23 parking spaces within the existing basement and ground floor areas is granted development consent subject to conditions in Annexure A (as amended on 27 June 2023). Peter Walsh Commissioner of the Court Annexure A amended Annexure B ********** Amendments 27 June 2023 - Pursuant to rule 36.17 of the UCPR, amendment to correct typographical error in Annexure A, with amendments reflected in the Orders. 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: 27 June 2023