Land and Environment Court New South Wales Medium Neutral Citation: Kinderland Industries Pty Ltd v Central Coast Council [2023] NSWLEC 1482 Hearing dates: Conciliation conference 14 August 2023 Date of orders: 25 August 2023 Decision date: 25 August 2023 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent referred to in [8] of this judgment pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (2) The appeal is upheld. (3) Development consent is granted to development application DA/1254/2022 seeking consent for the demolition of structures on the site, excavation, tree removal and construction of a 130 place two-storey childcare centre with basement car parking and associated works at 2 Wyreema Road, Warnervale NSW 2259 (Lot 48 DP 9203), subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – demolition and construction of a two-storey centre based childcare centre – amended plans – agreement between the parties – orders made. Legislation Cited: Central Coast Local Environmental Plan 2022, cl 1.8A Education and Care Services National Regulations Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 23, 38 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.26 Wyong Local Environmental Plan 2013 Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021 Wyong Development Control Plan 2013 Category: Principal judgment Parties: Kinderland Industries Pty Ltd (Applicant) Central Coast Council (Respondent) Representation: Counsel: A Hemming (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Fortis Law (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2022/305697 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant, Kinderland Industries Pty Ltd, against the deemed refusal of development application DA/1254/2022. The development application, as amended, seeks consent for the construction of a two-storey 130-place centre-based childcare facility with basement car parking and associated site works at 2 Wyreema Road, Warnervale. 2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 3 March 2023. That conciliation conference was terminated, and the matter listed for hearing on 14‑15 August 2023. 3. Prior to the hearing, the Applicant filed a Notice of Motion with the Court seeking leave to amend their development application. The principal amendments proposed were as follows: 1. An increase in child places proposed from 104 to 130 2. Creation of basement carparking with additional parking 3. Addition of a loading bay 4. Changes to building setbacks, and in particular an increase to the north western boundary setback 5. Changed roof form 6. Updated colours and finishes 7. Updated plan of management for the centre 8. Consequential updates to engineering plans and reports. 1. Following the filing of the notice of motion to amend the development application, the parties reached an in-principle agreement and sought orders for a further conciliation conference. That conciliation conference was listed in the afternoon of 14 August 2023. I presided over the conciliation conference. The Respondent confirms that the amendments to the development application sought by the Applicant, and the imposition of the conditions of consent at Annexure A, resolve the contentions in the proceedings. An executed agreement pursuant to s 34 of the LEC Act was filed with the Court on 14 August 2023. The parties' agreement is for the grant of consent to the application, as amended, subject to conditions. 2. 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). I form this state of satisfaction on the basis that: 1. The development application was made with the consent of the owner of the land: s 23(1) of the Environmental Planning and Assessment Regulation 2021; 2. The development application was notified in accordance with the requirements of Wyong Development Control Plan 2013 (DCP 2013). The Respondent received 19 submissions in the form of objections as a result of the notification. I am satisfied that those public submissions have been taken into account in the determination of the development application. In particular, the parties argue that the amended development application is of a lesser environmental impact in the following respects: * The adoption of a basement car park enables the retention of canopy trees in the front setback and reduces the visual impact of the development. * The amended architectural design is of a more residential character and is accordingly more sympathetic with the local character. * The amended architectural design of the first floor and the increased north western setback reduces the potential acoustic and visual privacy impacts to adjoining development. * There is a reduction in cut and fill across the site. * The parking provided in the basement is compliant with the requirements of DCP 2013. * The traffic generated by the development is consistent with the RTA Amenity guidelines for a local road and can be accommodated within the intersection of Wyreema/Nikko Road and Nikko/Wanervale Road without a change in the intersection performance. 1. On 1 August 2022, the Central Coast Local Environmental Plan 2022 (LEP 2022) came into force and repealed Wyong Local Environmental Plan 2013 (LEP 2013). However, given the effect of cl 1.8A of LEP 2022, LEP 2013 continues to apply to the Development Application as it was lodged prior to the commencement of LEP 2022. 2. The site is zoned R2 Low Density Residential pursuant to LEP 2013. Centre based child care centres are permitted with consent in the zone. In determining the development application, I have had regard to the objectives of the zone which are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maintain and enhance the residential amenity and character of the surrounding area. • To provide a residential character commensurate with a low density residential environment. 1. The development application is compliant with the development standards in LEP 2013. 2. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The development application is accompanied by a Preliminary Site Investigation with confirms that the site is suitable for the proposed development, subject to the identification of any hazardous material in the existing structures prior to demolition. The conditions of consent include, at Condition 3.13, a condition for the appropriate management of asbestos if located during works. I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application. 3. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) concerns educational establishments and childcare facilities and applies to the proposed development. Section 3.22 of SEPP TI requires concurrence of the Regulatory Authority in the event that the proposed development does not comply with the unencumbered indoor or unencumbered outdoor space requirements of regs 107 or 108 of the Education and Care Services National Regulations. I am satisfied with the agreed position of the parties that the proposed development complies with regs 107 and 108 and therefore concurrence from the Regulatory Authority is not required. 4. Section 3.23 of the SEPP TI requires the consent authority to consider "any applicable provisions of the Child Care Planning Guideline" in determining the development application. The development application sets out a consideration of those matters in an annexure to the jurisdictional note filed with the agreement. In accordance with s 3.23 and based on the SEE, I have considered the applicable provisions of the Child Care Planning Guideline. 5. Section 3.26(2) of SEPP TI sets out non-discretionary development standards for the purposes of ss 4.15(2) and 4.15(3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. In particular, s 3.26(2)(b) of SEPP TI provides the requirements for indoor or outdoor space. The proposed development provides at least 3.25sqm of unencumbered indoor play space per child and at least 7sqm of unencumbered outdoor play space per child, consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations. The proposed development otherwise complies with the non-discretionary development standards. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that the Respondent approved the amendment to the development application DA/1254/2022 pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (the amended development application) as set out in the table below: 4. Traffic Report with Swept Paths McLaren Traffic Engineering - 23 Feb 2023 5. Environmental Noise Impact Assessment Day Design C 10 Jul 2023 6. Operation Plan of Management Janssen Design - 10 Aug 2023 7. Addendum to Environmental Noise Impact Assessment Day Design - 09 Aug 2023 1. The Court notes that the Applicant filed the amended development application with the Court on 7 August 2022. 2. The Court orders that: 1. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent referred to in [8] of this judgment pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 2. The appeal is upheld. 3. Development consent is granted to development application DA/1254/2022 seeking consent for the demolition of structures on the site, excavation, tree removal and construction of a 130 place two-storey childcare centre with basement car parking and associated works at 2 Wyreema Road, Warnervale NSW 2259 (Lot 48 DP 9203), subject to the conditions at Annexure A. ………………………. D Dickson Commissioner of the Court Annexure A (275682, 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: 25 August 2023