Land and Environment Court New South Wales Medium Neutral Citation: Clutch Bananas No. 1 Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1429 Hearing dates: Conciliation conference on 27 April 2023 Date of orders: 8 August 2023 Decision date: 08 August 2023 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court Orders that: (1) The Applicant is to pay the Respondent's costs thrown away by reason of the amendment of Development Application DA-691/2022 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $3,000 within 28 days. (2) The appeal is upheld. (3) Development Application DA-691/2022, as amended, for a three-storey mixed use development including a child care centre and commercial premises above multi-level basement parking at 196-198 Haldon Street, Lakemba, is determined by the grant of consent subject to the conditions of consent in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – mixed use development including a child care centre and commercial premises – conciliation conference – agreement between the parties – orders Legislation Cited: Canterbury Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.6 Education and Care Services National Regulations 2011 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.23, 3.26 Texts Cited: Canterbury-Bankstown Council, Community Participation Plan, 2019 Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021 Category: Principal judgment Parties: Clutch Bananas No. 1 Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: S Patterson (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2022/337358 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-691/2022 (the DA), which seeks consent for the construction of a mixed-use building, including a centre based childcare centre and a commercial premises at 196-198 Haldon Street, Lakemba (legally identified as Lot 1 in DP515241 & Lot 24 in DP76314) (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 27 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 1 June 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. 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. Owner's consent was provided with the Class 1 application. 2. The proposed development was placed on public exhibition for 21 days pursuant to the Canterbury Bankstown Community Participation Plan 2019 on 12 October 2021. No submissions were received 3. The development application, as amended, before the Court, seeks development consent for a centre based childcare centre and a commercial premises. The parties submit and I agree that both uses are permissible in the B2 Local Centre zone under Canterbury Local Environmental Plan 2012 (CLEP). 4. Clause 4.3 of the CLEP prescribes a height of building development standard of 18m. The parties submit and I agree that the proposed development does not exceed the height limit. 5. The parties agree and I accept that there is no floor space ratio development standard pursuant to cl 4.4 of the CLEP that applies to the Site. 6. The parties agree that the site is not a heritage item nor is it located within a heritage conservation area. Clause 5.10 of the CLEP is therefore not engaged. 7. The parties submit that the site is not identified as being flood prone land. I am therefore satisfied that cl 5.21 is therefore not engaged. 8. The parties agree that the site is not identified as being affected Acid Sulfate Soils and I am therefore satisfied that cl 6.1 of the CLEP is therefore not engaged. 9. The development application proposes earthworks/excavation to provide for two levels of basement. Development consent is required for earthworks pursuant to cl 6.2 of the CLEP. The parties submit and I accept that the proposed development has satisfactorily considered the matters in cl 6.2(3) of CLEP as follows: * The proposed excavation, particularly for the car parking area will have minimal adverse environmental or amenity impact. * The development has been designed to follow the site's natural topography to minimise excessive cut and fill. * The proposal results in an appropriate outcome when considering the nature of the development, the unique characteristics of the site and compliance with relevant Council controls. * The proposal will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability in the area. * The proposed excavation is consistent with the current and future use of the land and will develop the site into context with its surrounds and in accordance with Councils current and proposed planning strategies. * It is considered unlikely due to the location of the site as well as previous development that excavation will lead to the disturbance of relics. 1. An amended Stormwater Management Plan has been prepared as part of the development application. The parties agree and I am satisfied that the amended Stormwater Management Plan is consistent with the matters in cl 6.4(3) of CLEP. 2. The parties also submit and I agree that the site will be serviced by water and sewer, and the required utility clearances will be obtained prior to works commencing on site in accordance with cl 6.6 of CLEP. 3. State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the Site. Chapter 3 - Educational establishments and child care 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 the proposal complies with the non-discretionary standards for centre-based childcare facilities at s 3.26 of the Transport and Infrastructure SEPP. I am also satisfied that the proposal complies with the relevant matters under the Child Care Planning Guidelines and the Education and Care Services National Regulations 2011, and those matters are addressed in the Statement of Environmental Effects. 4. The development application was supported by a Detailed Site Investigation report prepared by GCA dated 19 May 2022, which concludes that the site is suitable for the proposed development and land use, provided the recommendations set out in the report are undertaken. Based on the Detailed 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. 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. The Respondent, Canterbury-Bankstown Council, as the relevant consent authority, has agreed to the Applicant amending Development Application DA-691/2022 in accordance with the documents listed below: 1. Architectural Plans (Rev C) prepared by Janssen Designs dated 28 April 2023. 1. Drawing number A000 (Rev D), 'Section & Awning Detail' prepared by Janssen Designs dated 15 May 2023. 1. Landscape Plans (Rev B) prepared by Outside In Design Group Pty Ltd dated 14 March 2023. 2. Hydraulic Services Plan (Rev P1) prepared by IGS dated 23 January 2023. 3. Mechanical Services Plan (Rev P1) prepared by IGS dated 23 January 2023. 4. Stormwater Management Plan (Rev C) prepared by Capital Engineering Consultants dated 2 March 2023. 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. The Applicant is to pay the Respondent's costs thrown away by reason of the amendment of Development Application DA-691/2022 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $3,000 within 28 days. 2. The appeal is upheld. 3. Development Application DA-691/2022, as amended, for a three-storey mixed use development including a child care centre and commercial premises above multi-level basement parking at 196 -198 Haldon Street, Lakemba, is determined by the grant of consent subject to the conditions of consent in Annexure 'A'. L Sheridan 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: 08 August 2023