Land and Environment Court New South Wales Medium Neutral Citation: Dollar Investments 888 Pty Ltd v Canterbury Bankstown Council [2023] NSWLEC 1374 Hearing dates: Conciliation conference on 20 April,9 May and 19 May 2023 Date of orders: 18 July 2023 Decision date: 18 July 2023 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court Orders that: (1) Leave is granted to the Applicant to rely on the amended documentation listed in paragraph [12(1)] of this judgment. (2) The appeal is upheld. (3) Development Application No. DA 721/2022 for demolition of existing structures, removal of seven trees, construction of a two-storey centre based childcare for 80 children and one level of basement parking for 14 cars at 33 Grove Avenue, Narwee being lot 21 in deposited plan 575463, is determined by a grant of consent, subject to conditions contained in Annexure A. (4) The Applicant is to pay the Council's costs thrown away as a result of the amended plans pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $3,000 within 30 days of the date of these orders. Catchwords: DEVELOPMENT APPLICATION ––child care centre - conciliation conference – agreement between the parties – orders Legislation Cited: Canterbury Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.6 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, s 3.23 Texts Cited: Department of Planning, Industry and Environment Childcare Planning Guideline 2021 Category: Principal judgment Parties: Dollar Investments 888 Pty Ltd (Applicant) Canterbury Bankstown Council (Respondent) Representation: Counsel: J Reid (Applicant) M Bonnano (Solicitor) (Respondent) Solicitors: Canterbury Bankstown Council (Respondent) File Number(s): 2022/334493 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of Canterbury Bankstown Council's deemed refusal of Development Application DA 721/2022 (the DA), which seeks consent for the demolition of existing structures, removal of seven trees, construction of a two-storey centre based childcare for 80 children and one level of basement parking for 16 cars at 33 Grove Avenue, Narwee being lot 21 in deposited plan 575463 (The Site). These proceedings have been brought pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 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 20 April 2023. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached an in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application. 4. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted a further adjournment so that those amendments agreed to between the parties could be incorporated into agreed conditions of consent. 5. This agreement between the parties involves the Court upholding the appeal and granting development consent to the DA subject to those agreed conditions of consent. 6. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 19 May 2023. 7. 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 and 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. 8. With the consent of the applicant, Council re-notified the Amended DA between 2 May 2023 to 8 May 2023 and seven submissions were received during that period. 9. 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 one 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. 10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following: 1. Pursuant to Canterbury Local Environmental Plan 2012 (CLEP) the Site is zoned R3 Medium Density Residential under the LEP and the use of the Site for the purpose of a centre based childcare centre is development that is permitted with development consent under the LEP in the R3 zone. 2. The parties agree and I accept that the Amended DA is consistent with the objectives of the R3 Zone which are, in part, to enable other land uses that provide facilities or services to meet the day to day needs of residents. 3. Clause 2.7 of the CLEP provides that demolition is permissible with consent. Demolition is proposed and has been considered with conditions included in the agreed conditions of consent. 4. Clause 4.3(2) of the CLEP prescribes a height of buildings development standard of 8.5m. The parties submit and I accept that the Amended DA has a maximum height of 8.027m and complies with the standard (see plans A001 and A012). 5. Clause 4.4(2) of the CLEP prescribes a floor space ratio control for the Land of 0.5:1. The parties submit and I am satisfied that the Amended DA complies with the Floor Space Ratio (FSR) development standard with an FSR of 0.49:1 (see plans A001, A023 and A024). 6. The parties submit, and I am satisfied, that that the Site is not within a heritage conservation area and is not listed as an item of environmental heritage and therefore cl 5.10 of the CLEP is not engaged. 7. The parties submit that the Site is not flood affected and therefore I am satisfied that cl 5.21 of CLEP is not engaged. 8. The parties also submit the Site is not shown on the Acid sulfate soils map and therefore I am satisfied that cl 6.1 of the CLEP is not engaged. 9. Clause 6.2 of the CLEP (Earthworks) applies to the Site. The proposal includes excavation in relation to the lower ground level to a depth of approximately 3.635m. A Geotechnical Report dated 8 December 2022 and stormwater plans were lodged with the DA and I am satisfied that the requirements of clause 6.2(3) have been met by these. 10. Clause 6.4 of the CLEP (Stormwater management) applies to the Site. Stormwater Plans were submitted with the DA and detailed conditions have been imposed which satisfy me that the Amended DA meets the requirements of clause 6.4(3). 11. Clause 6.6 (Essential Services) of the CLEP applies to the Site. The Land contains existing urban development and is zoned R3 under the LEP. The parties submit that water, electricity, and sewer access are available or will be made available when required. The Amended DA provides for stormwater drainage and on-site conservation and suitable vehicular access, and I am satisfied that the requirements of cl 6.6 have been met. 12. State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the Site. Chapter 3 - Educational establishments and childcare facilities of the SEPP applies to the proposed development. Section 3.23 of the SEPP requires a consent authority to consider the Department of Planning, Industry and Environment Childcare Planning Guideline 2021 (Childcare Planning Guideline) when determining a development application. I am satisfied that the matters for consideration under the Childcare Planning Guideline have been addressed in the Statement of Environmental Effects (SEE) and have been considered in the Amended DA. The SEE includes a table assessing the application against the Childcare Planning Guideline at pp24-28 which should be read in conjunction with the compliance table in the amended plan set on drawing A001. 13. A preliminary site investigation report and detailed site investigation report have been prepared by GCA dated 4 July 2022. Based on the preliminary site investigation and the parties' submission, I am satisfied that the site is suitable for the proposed use pursuant to the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021. 14. SEPP (Biodiversity & Conservation) 2021 applies to the Site. The Parties acknowledge and I accept that there can be no clearing of land on the site without the consent of Council – in this instance the mechanism would be a consent to a DA to the extent that the DA proposes tree removal. Appropriate conditions are proposed in relation to Tree Removal and replanting. 15. The Amended DA was re-notified as required from 2 May 2023 to 8 May 2023 and seven submissions were received during that period. The parties submit and I accept that amendments that have been made to the DA were made in response to concerns of the Respondent and objectors and result in a lesser environmental impact from the Amended DA. 1. For the above reasons 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. I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. Notes 1. The Court notes that: 1. Canterbury Bankstown Council, as the relevant consent authority, has agreed, under s 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA721/2022 in accordance with the documents listed below: Drawing Number Plan Name Dated Revision Prepared By A002 Site Context Plan 21/04/2023 D Janssen Designs A003 Demolition Plan 21/04/2023 D Janssen Designs A004 Site Analysis Plan 21/04/2023 D Janssen Designs A005 Lower Ground 18/05/2023 E Janssen Floor Plan Designs A006 Upper Ground 21/04/2023 D Janssen Designs Floor Plan- Acoustic Details A007 First Floor Plan- Acoustic Details 21/04/2023 D Janssen Designs A008 Roof Plan 21/04/2023 D Janssen Designs A009 South/Streetscape 18/05/2023 E Janssen Designs Elevation & East Elevation A010 West & North Elevation 18/05/2023 E Janssen Designs A011 Section 21/04/2023 D Janssen Designs A017 Cut and Fill Diagram 21/04/2023 D Janssen Designs A022 Colour and Finishes Schedule 21/04/2023 D Janssen Designs LPS34 23- Conzept Landscape 24 (Sheet Hardscape Plan/GF 28/04/2023 F Architects 01) LPS34 23- Conzept 24 (Sheet Landscape Plan/GF 28/04/2023 F Landscape Architects 02) LPS34 23- 24 (Sheet Landscape Plan/L1 28/04/2023 F Conzept Landscape Architects 03) LPS34 23- Conzept Landscape 24 (Sheet Details & Specification 28/04/2023 F Architects 04) LPS34 23- Conzept 24 (Sheet Details & Specification 28/04/2023 F Landscape Architects 05) LPS34 23- Conzept Landscape 24 (Sheet Section 28/04/2023 F Architects 06) 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. Orders 1. The Court orders: 1. Leave is granted to the Applicant to rely on the amended documentation listed in paragraph [12(1)] of this judgment. 2. The appeal is upheld. 3. Development Application No. DA 721/2022 for demolition of existing structures, removal of seven trees, construction of a two storey centre based childcare for 80 children and one level of basement parking for 14 cars at 33 Grove Avenue, Narwee being lot 21 in deposited plan 575463, is determined by a grant of consent subject to conditions contained in Annexure A. 4. The Applicant is to pay the Council's costs thrown away as a result of the amended plans pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $3,000 within 30 days of the date of these orders. L Sheridan Acting Commissioner of the Court Annexure A (266772, 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: 18 July 2023