Land and Environment Court New South Wales Medium Neutral Citation: Lin v Blacktown City Council [2023] NSWLEC 1386 Hearing dates: Conciliation conference on 27 June 2023 Date of orders: 21 July 2023 Decision date: 21 July 2023 Jurisdiction: Class 1 Before: Harding AC Decision: The Court Orders that: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application, as agreed or assessed. (2) The Appeal is upheld. (3) Development Application No. DA21/01377, for the demolition of the existing structures and the construction of a two-storey 54 place centre- based child care facility with associated parking for 17 cars on land legally described as Lots 20 and 21 in DP1395 and known as 98 and 98A Elizabeth Street, Riverstone NSW 2765, is determined by the grant of development consent subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – child care centre – amended plans – conciliation conference – agreement reached – orders Legislation Cited: Blacktown Local Environmental Plan 2015, cl 7.5 Education and Care Service National Regulations 2011 Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Environmental Planning and Assessment Regulation, 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Resilience and Hazards), cl 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Chs 2, 3, s 3.23 Education and Care Services National Regulations Texts Cited: NSW Department of Planning, Industry and Environment Child Care Planning Guidelines 2017 Category: Principal judgment Parties: Hanna Lin (Applicant) Blacktown City Council (Respondent) Representation: Counsel: M Staunton (Applicant) K Mortimer (Solicitor) (Respondent) Solicitors: Fortis Law (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/260451 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Hanna Lin (the Applicant) against Blacktown City Council's (the Respondent) deemed refusal of Development Application No. DA21/01377 which was lodged on 26 July 2021. 2. The Development Application seeks Development Consent for the demolition of existing structures and the construction of a two storey 54 place centre based child care facility with associated parking. The proposed development is to be undertaken on land legally described as Lots 20 and 21 in DP1395 and known as 98 and 98A Elizabeth Street, Riverstone NSW 2765. 3. The proceedings commenced on site on 27 June 2023. During an adjournment in the proceedings, an application was made to the Court for an order, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), that the matter be dealt with by conciliation. The order for the conciliation conference was made and proceeded on the same day. I presided over that conciliation conference. 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the Development Application subject to conditions. 5. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court. The amendments were accepted by Council pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000. The amended application included, but is not limited to, the following relevant amendments: 1. The provision of additional information around the issues of streetscape. 2. The provision of additional information and changes to the Plan of Management for the operation of the centre. 3. The provision of additional information and changes to facilitate stormwater collection for the site. 1. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions. 2. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following: 1. Pursuant to the Blacktown Local Environmental Plan 2015 (BLEP 2015), the subject site is zoned R2 Low Density Residential. Centre-based child care facilities are permissible, with Development Consent, in the R2 zone. In determining the Development Application, the parties and I have had regard to the objectives of the zone. 2. The proposed development does not contravene a development standard in the BLEP 2015, nor in any other applicable Environmental Planning Instrument. 3. The requirements of cl 7.5 of BLEP 2015, that require the consent authority to be satisfied that certain services will be met, have been adequately considered and satisfied. The parties agree that essential services will be available to the proposed development and appropriate conditions, ensuring the required outcomes, are included in the Development Consent forming Annexure A. 4. The Development Application was notified for 14 days from 19 October 2022. The amended Development Application was also notified on 2 June 2023 for a period of 14 days. Submissions were made during both notification periods have been considered by the parties. The Court also heard an oral submission from a nearby resident at the start of proceedings. 5. Consideration has been given to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP). The application was lodged prior to 21 November 2022 and therefore former provisions of the BC SEPP apply. The parties agree that required considerations in the BC SEPP have been met in respect to the provisions relating to the Hawksbury Nepean River Catchment. As a result of these deliberations, I am also satisfied that the BC SEPP requirements have been met. 6. Consideration has been given to whether the Site is contaminated as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The Applicant provided a Preliminary Site Investigation, Salinity, and Geotechnical Assessment Report prepared by NG Child and Associates, indicating that the Site is suitable for the proposed development. Appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A. 7. The required consideration has been given to State Environmental Planning Policy (Transport and Infrastructure) 2021 (ISEPP). The parties agree that Ch 2 of the ISEPP, Infrastructure, has been considered. The parties agree that the proposed development does not trigger referrals, or the provision for written advice to authorities, given the nature and location of the development. Therefore, the requirements of Ch 2 have been met. 8. The parties also agree that the Development Application has addressed the necessary matters in Ch 3 of the ISEPP which relates to Education Establishment and Child Care Facilities. This includes compliance assessments and responses to the various considerations, and numerical requirements, in the NSW Department of Planning, Industry and Environment Child Care Planning Guidelines 2017, as required under s 3.23 of the ISEPP. Where appropriate, the parties have agreed conditions around the operation of the proposed centre and these are included in Annexure A. I am therefore satisfied that the various aspects of the ISEPP have been met. 9. The Education and Care Service National Regulations 2011 also apply to the development. The required assessment of compliance has been undertaken. 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' agreement. 2. I was not required to make, and have not made, any assessment of the merits of the Development Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. Orders 1. Pursuant to s 34(3) of the Land and Environment Court Act 1979, to give effect to the parties' agreement, the Court orders that: 1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application, as agreed or assessed. 2. The Appeal is upheld. 3. Development Application No. DA21/01377, for the demolition of the existing structures and the construction of a two-storey 54 place centre - based child care facility with associated parking for 17 cars on land legally described as Lots 20 and 21 in DP1395 and known as 98 and 98A Elizabeth Street, Riverstone NSW 2765, is determined by the grant of development consent subject to the conditions set out in Annexure A. Stuart Harding Acting Commissioner of the Court 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: 21 July 2023