Land and Environment Court New South Wales Medium Neutral Citation: Khoury v Campbelltown City Council [2023] NSWLEC 1395 Hearing dates: Conciliation Conference 11 July 2023 Date of orders: 25 July 2023 Decision date: 25 July 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (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 Application as agreed or assessed. (2) The appeal is upheld. (3) Development application 1655/2022/DA-C for the consolidation of Lot 8 in Deposited Plan 254880 and Lot 8 in Deposited Plan 241301 and the construction of a two-storey, 71 place centre-based childcare centre with basement parking on the land at 24 Birdsville Crescent, Leumeah NSW 2560, is determined by the grant of development consent subject to the conditions in the annexure marked "A". Catchwords: DEVELOPMENT APPEAL – childcare centre – remediation of land – conciliation conference – agreement between the parties - orders Legislation Cited: Campbelltown Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 5.21, 7.3, 7.6, 7.10, 7.13, 7.20 Education and Care Service National Regulations 2011 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Industry and Employment) 2021, Ch 3 State Environmental Planning (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Chs 2, 3, ss 2.48, 2.98, 2.120, 3.3, 3.26, Sch 3 Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021 National Environment Protection (Assessment of Site Contamination) Measure, 1999 (April 2013) Category: Principal judgment Parties: Joshua Khoury (First Applicant) Hala El Khoury (Second Applicant) Campbelltown City Council (Respondent) Representation: Counsel: A Sarkis (Solicitor)(Applicant) L Rafaelle (Solicitor)(Respondent) Solicitors: Fortis Law (Applicant) Bartier Perry (Respondent) File Number(s): 22/254009 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application No 1655/2022/DA-C seeking consent for the construction of a centre-based child care centre with basement parking (the Proposed Development) at 24 Birdsville Crescent, Leumeah legally described as Lot 8 DP254880 and Lot 8, DP241301 (the Site). 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 11 July 2023. I have presided over the conciliation conference. 3. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 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. 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. 5. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 6. 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 the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement to which I have had regard and summarise as relevant below. 7. The Campbelltown Local Environmental Plan 2015 (CLEP) is the relevant local environmental planning instrument that applies to the Site. The Site is zoned R2 Low Density Residential under the CLEP, and the Proposed Development is permissible with consent in R2 zone. 8. The Proposed Development is located wholly below the 8.5m maximum height of building development standard prescribed pursuant to cl 4.3 of the CLEP with a proposed height of 8.3m. Similarly, the Proposed Development has a floor space ratio (FSR) of 0.51:1, and with the maximum FSR of 0.55:1 development standard prescribed by cl 4.4 of the CLEP. 9. The Site is not listed as a heritage item and there is sufficient separation between the heritage images in the broader locality, and the Site. I am satisfied that the effect of the Proposed Development on the heritage significance of a heritage item or heritage conservation area concerned has been duly considered pursuant to cl 5.10 of the CLEP. 10. The Site is not identified as: 1. being flood prone (cl 5.21, CLEP) 2. "Biodiversity" on the Natural Resources-Biodiversity Map (cl 7.20, CLEP) 3. "Riparian Land and Waterways" on Natural Resources-Riparian Land and Waterways Map (cl 7.3, CLEP) 4. being located within the "Escarpment Preservation Area" (cl 7.6, CLEP) 5. on the design excellence map (cl 7.13, CLEP) 1. I am satisfied that essential services are provided to the Site as required by cl 7.10 of the CLEP. 2. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) relates to the consideration of whether land is contaminated with determining an application for development consent. Specifically, a consent authority must not grant consent to a development if it has considered whether a site is contaminated, and if it is, that it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use. In that regard, the Applicant has undertaken a Preliminary Site Investigation (PSI), a Targeted Detailed Site Investigation (TDSI) and a Remedial Action Plan (RAP) was prepared by Geotechnical Consultants Australia (GCA), all filed with the Court on 7 July 2023. The PSI and TDSI identify the following exceedances of the National Environment Protection (Assessment of Site Contamination) Measure 1999, (NEPM) Assessment Criteria for Residential (A) sites (RAP, page 4): "a. NEPM 2013 Health Screening Level (HSL-A): i. Asbestos (ACM and AF/FA) in the fill material in two (2) sample locations" 1. These exceedances require the implementation of the RAP for the site to be made suitable for the proposed use. GCA found that the Site can be made suitable for the Proposed Development and intended use as a child care centre (NEPM Residential (A)), subject to the implementation and completion of the measures outlined in the RAP. The RAP, at page 4, provides as follows: "The Asbestos contamination will be remediated by excavation and lawful off-site disposal of contaminated soil to an appropriately licensed landfill facility. This approach is preferred as it will manage human health risk by physically removing the contamination from the site. Following the completion of the remediation procedures, validation sampling will be undertaken to measure the successful application of the remediation strategies. If validation sampling fails (indicating residual contamination on-site) further remedial works will be undertaken. If validation sampling indicates no residual contamination on-site, the Site Validation Report can be prepared by a qualified environmental consultant, which includes all relevant site data, analytical results and details of remedial processes." 1. The RAP is referenced as an approved document in the conditions of consent, and Conditions 71, 75 and 116 have also been imposed by Council. For these reasons, I am satisfied that the terms of s 4.6 of the Resilience and Hazards SEPP have been complied with. 2. No signage is proposed as part of the Proposed Development, however, it is anticipated that signage will be subject to future development applications and in that regard, it is noted that Ch 3 of the State Environmental Planning Policy (Industry and Employment) 2021 contains controls for advertising and signage. 3. Chapter 2 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) provides a consistent planning regime for infrastructure and the provision of services across the State, along with providing for consultation with relevant public authorities during the assessment process. The Proposed Development does not come within any of the relevant jurisdictional provisions of the Transport and Infrastructure SEPP, including the following: 1. the Site is not in the vicinity of electricity infrastructure that would require concurrence of the electricity supply authority (s 2.48); 2. the Site is not in the vicinity of rail infrastructure (s 2.98); 3. the Proposed Development is not located within proximity to a classified road (s 2.120); 4. the Proposed Development is not identified as traffic generating development by Sch 3 of the Transport and Infrastructure SEPP. Accordingly, the proposal is not required to be referred to the RMS for comment (s 2.122). 1. Chapter 3 of the Transport and Infrastructure SEPP provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across the State. 2. The Proposed Development relates, amongst other things, to a centre-based child care facility under s 3.3 of the Transport and Infrastructure SEPP. I am satisfied that the applicable provisions of the Child Care Planning Guidelines have been taken into consideration by the parties (s 3.23, Transport and Infrastructure SEPP) because compliance with the Child Care Planning Guidelines is addressed at pages 32 to 55 of the Statement of Environmental Effects (SEE) filed with the Class 1 Application. 3. Clause 3.26 of the Transport and Infrastructure SEPP sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority from requiring more onerous standards for those matters. Section 3.26(2) of the Transport and Infrastructure SEPP sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Relevantly, s 3.26(2)(b) provides the requirements for minimum indoor or outdoor space. The Proposed Development provides 234m2 of unencumbered indoor play space and 501m2 of unencumbered outdoor play space which complies with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations 2011, which requires 3.25m2 of unencumbered indoor play space and 7m2 of unencumbered outdoor play space per child (cl 107 and 108). 4. Compliance with Education and Care Services National Regulations 2011 is set out at pages 56 to 57 of the SEE filed with the Class 1 Application. The relevant controls and requirements include the following: 1. licensing and approvals processes, including documentation requirements; 2. facilities and equipment requirements; 3. staffing requirements; 4. child number requirements; 5. operational requirements; 6. administrative requirements; 7. probity check requirements; and 8. various miscellaneous requirements. 1. 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. 2. 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. Notations: 1. The Court notes that: 1. Campbelltown City Council as the relevant consent authority has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending development application 1655/2022/DA-C to rely upon the following amended plans and documents (Amended Development Application): Architectural Cover Page 000 Janssen Designs C 9 Feb 2022 Calculations and LEP Controls 001 Janssen Designs C 9 Feb 2022 Site Context Plan 002 Janssen Designs C 9 Feb 2022 Site Analysis Plan 003 Janssen Designs C 9 Feb 2022 Site Plan 004 Janssen Designs C 9 Feb 2022 Basement Plan 005 Janssen Designs C 9 Feb 2022 Ground Floor Plan & Acoustic Details 006 Janssen Designs C 9 Feb 2023 First Floor Plan & Acoustic Details 007 Janssen Designs C 9 Feb 2023 Roof Plan 008 Janssen Designs C 9 Feb 2023 Covered Outdoor Area Diagrams & Outdoor Area Calculations 009 Janssen Designs C 9 Feb 2023 Cut and Fill Diagram 010 Janssen Designs C 9 Feb 2023 North + South Elevations + Streetscapes 011 Janssen Designs C 9 Feb 2023 East, West + South Elevations 000 Janssen Designs C 9 Feb 2023 Sections 013 Janssen Designs C 9 Feb 2023 Maximum Building Height Diagram 014 Janssen Designs C 9 Feb 2023 Perspective Images 1 & 2 015 Janssen Designs C 9 Feb 2023 Perspective Images 3 & 4 016 Janssen Designs C 9 Feb 2023 Perspective Images 4 & 5 016B Janssen Designs C 9 Feb 2023 Shadow Diagrams 017 Janssen Designs C 9 Feb 2023 Emergency Evacuation Plans 018 Janssen Designs C 9 Feb 2023 Shadow Diagram – 8am June 21st 019 Janssen Designs C 9 Feb 2023 Shadow Diagram – 9am June 21st 020 Janssen Designs C 9 Feb 2023 Shadow Diagram – 10am June 21st 021 Janssen Designs C 9 Feb 2023 Shadow Diagram – 11am June 21st 022 Janssen Designs C 9 Feb 2023 Shadow Diagram – 12 noon June 21st 023 Janssen Designs C 9 Feb 2023 Shadow Diagram – 1pm June 21st 024 Janssen Designs C 9 Feb 2023 Shadow Diagram – 2pm June 21st 025 Janssen Designs C 9 Feb 2023 Shadow Diagram – 3pm June 21st 026 Janssen Designs C 9 Feb 2023 Landscape Ground Floor 101 Canvas Landscape Architects B 28 Jun 2023 First Floor 102 Canvas Landscape Architects B 28 Jun 2023 Proposed Plant Schedule & maintenance Program 103 Canvas Landscape Architects B 28 Jun 2023 Civil Title Page, Notes and Details CIV001 CEC E 27 Jun 2023 Civil Works Site Plan CIV 010 CEC E 27 Jun 2023 B99 Design Vehicle Long-Sections CIV 011 CEC E 27 Jun 2023 Design Cross-Sections CIV 012 CEC E 27 Jun 2023 Campbelltown Council Standard Notes and Details CIV020 CEC E 27 Jun 2023 Stormwater Cover Sheet SW001 CEC E 27 Jun 2023 Basement Floor, Notes & Details SW010 CEC E 27 Jun 2023 Suspended Drainage Plan SW011 CEC E 27 Jun 2023 Ground Floor, Notes & Details SW020 CEC E 27 Jun 2023 On-Site Detention Section & Details SW021 CEC E 27 Jun 2023 First Floor & Roof Plan, Notes & Details SW030 CEC E 27 Jun 2023 Erosion & Sediment Control Plan ER001 CEC E 27 Jun 2023 Drains Model - CEC E 27 Jun 2023 B-Calculations - CEC B - Traffic B85 Vehicle Entering Basement and B99 Vehicle Existing Basement Terraffic - 12 Feb 2023 B99 Vehicle Entering Basement and B85 Vehicle Exiting Basement Terraffic - 12 Feb 2023 B85 Vehicle Accessing Staff Parking Space 06 Terraffic - 12 Feb 2023 B85 Vehicle Accessing Staff Parking Space 07 Terraffic - 12 Feb 2023 Environmental Noise Assessment Day Design A 8 Mar 2023 Plan of Management Janssen Design B Feb 2022 Geotechnical Detailed Site Investigation GCA 1 15 Mar 2023 CENVP SC Review Harwood Environmental Consultants - 15 Mar 2023 Remedial Action Plan GCA 1 12 Apr 2023 CENVP SC Review Old Maple Pty Ltd - 14 Apr 2023 Arboricultural Impact Assessment and Tree Management Plan Horticultural Management Services 1 12 Jan 2023 1. The applicant filed the Amended Development Application with the Court on 7 July 2023. Orders: 1. The Court orders: 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 Application as agreed or assessed. 2. The appeal is upheld. 3. Development application 1655/2022/DA-C for the consolidation of Lot 8 in Deposited Plan 254880 and Lot 8 in Deposited Plan 241301 and the construction of a two-storey, 71 place centre-based childcare centre with basement parking on the land at 24 Birdsville Crescent, Leumeah NSW 2560, is determined by the grant of development consent subject to the conditions in the annexure marked "A". E Espinosa 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: 25 July 2023