Land and Environment Court New South Wales Medium Neutral Citation: Lanham Developments Pty Ltd ATF Lanham Property Trust v The Hills Shire Council [2023] NSWLEC 1381 Hearing dates: Conciliation conference on 18 May, 9 June and 27 June 2023 Date of orders: 27 July 2023 Decision date: 27 July 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The applicant is to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (2) The appeal is upheld. (3) Development application 642/2023/HC for a 126 place childcare centre, with a basement carpark comprising 41 car parking spaces and associated landscaping on Lot 103 in DP 1281508, Lot 102 in DP 1281508 and Lot 17 in DP 1260663 known as 204 Old Pitt Town Road, Box Hill is approved subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – child care facility – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 4.47, 8.7, 8.15, Div 4.8 Environmental Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9 ss 9.4, 9.5 State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 10 ss 4.3, 6.1 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Pt 3.3 ss 3.22, 3.23, 3.25, 3.26 Texts Cited: Department of Planning, Industry and Environment, Childcare Planning Guideline, September 2021 The Hills Development Control Plan 2012 Category: Principal judgment Parties: Lanham Developments Pty Ltd ATF Lanham Property Trust (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: A Knox (Solicitor) (Applicant) K Law (Solicitor) (Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) Matthews Folbigg (Respondent) File Number(s): 2022/368771 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal by The Hills Shire Council of development application DA 642/2023/HC for the construction of a 128-place centre-based child care facility at 204 Old Pitt Town Road, Box Hill, legally described as Lot 103 in DP 1281508. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. 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 18 May, 9 June and 27 June 2023. I presided over the conciliation conference. 4. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 5. The decision also involved the amendment of the development application to incorporate Lots 102 in DP 1281508 and Lot 17 in DP 1260663 to incorporate drainage works and battering, and to reduce the number of children from 128 to 126. 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 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, however 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 for the following reasons, I accept that these prerequisites have been satisfied. 7. The applicant is the owner of Lots 102 and 103 in DP 1281508. Lot 17 in DP 1260663 is owned by The Hills Shire Council from whom, by this agreement and their joint submission, owner's consent can be assumed. 8. The development application was adequately notified in accordance with The Hills Development Control Plan 2012 between 12 October and 2 November 2022. No submissions were received. 9. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021, the Remediation Outcomes Report dated 16 November 2021 confirms that the land has been adequately remediated, and the site is suitable for the proposed development. 10. Part 3.3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) applies to the development. Pursuant to the requirements of s 3.22 of this SEPP, the proposal complies with the requirements for indoor and outdoor unencumbered play space. 11. Pursuant to s 3.23 of the Transport SEPP, the parties submit and I accept that the Childcare Planning Guideline 2021 has been considered, as outlined in the Statement of Environmental Effects. 12. The proposal has a Floor Space Ratio (FSR) of 0.28:1, which complies with the maximum FSR standard of 0.5:1 prescribed by s 3.25 of the Transport SEPP. 13. Section 3.26 of the Transport SEPP prescribes several non-discretionary development standards, none of which are triggered by this proposed development. 14. Chapter 9 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the development. The parties submit and I accept that the considerations and requirements set out in ss 9.4 and 9.5 have been taken into account, and conditions of consent relating to water management have been incorporated into Annexure A. 15. Pursuant to Div 4.8 of the EPA Act, the development application is integrated to include application for a bush fire safety authority under s 100B of the Rural Fires Act 1997. In accordance with s 4.47(3) of the EPA Act, general terms of approval were issued by the NSW Rural Fire Service on 13 October 2022 and have been incorporated into the agreed conditions of consent. 16. State Environmental Planning Policy (Precincts – Central River City) 2021 – Appendix 10: The Hills Growth Centres Precincts Plan (Precincts Plan) applies to the land. Pursuant to this Precincts Plan, the site is zoned R2 Low Density Residential, within which development for the purposes of centre-based child care facilities are permissible with consent. The development meets all relevant objectives of this zone. 17. The proposed building has a maximum height of 8.136 metres, which complies with the maximum permissible height of 8.5m pursuant to Precinct Plan s 4.3. 18. The parties submit and I accept that, based on the submission of evidence from the applicant that is included in the Class 1 application bundle, adequate arrangements have been made to ensure the development will be supplied with water, electricity and management of sewage, in accordance with s 6.1 of the Precincts Plan. 19. For these 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. 20. 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. 21. The Court notes: 1. The respondent as the relevant consent authority has agreed under section 37 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application to incorporate Lot 102 in DP 1281508 and Lot 17 in DP 1260663 and to rely on the following documentation: 1. Architectural Plans prepared by JS Architects revision G dated 6 June 2023; 2. Landscape Plans prepared by Naddi Designs revision D dated 26 May 2023; 3. Stormwater Plans prepared by MBR Consulting Revision C dated 26 June 2023; 4. Operational Plan of Management prepared by Ology Early Childhood Consulting dated May 2023; 5. Environmental Noise Assessment prepared by Day Design Pty Ltd revision D dated 7 June 2023. 1. The Court orders: 1. The applicant is to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The appeal is upheld. 3. Development application 642/2023/HC for a 126 place childcare centre, with a basement carpark comprising 41 car parking spaces and associated landscaping on Lot 103 in DP 1281508, Lot 102 in DP 1281508 and Lot 17 in DP 1260663 known as 204 Old Pitt Town Road, Box Hill is approved subject to the conditions at Annexure A. E Washington Acting Commissioner of the Court 368771.22 Annexure A ********** 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 July 2023