Land and Environment Court New South Wales Medium Neutral Citation: JAYC Pty Ltd v Liverpool City Council [2023] NSWLEC 1573 Hearing dates: Conciliation conference on 3 August and 12 September 2023 Date of orders: 29 September 2023 Decision date: 29 September 2023 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs thrown away as agreed or assessed as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development application DA-2/2023 for the demolition of structures and the construction of a two-storey child care centre for 120 children with basement car parking at 31 Balanada Avenue, Chipping Norton NSW 2017 is determined by the grant of development consent subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION: centre based child care facility in R3 Medium Density Residential zone – conciliation conference – agreement between parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34 Liverpool Local Environmental Plan 2008, cll 4.3, 4.4, 5.10, 7.7 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport & Infrastructure) 2021, ss 3.23, 3.26 Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guidelines, September 2021 Category: Principal judgment Parties: JAYC Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: N Touma (Solicitor) (Applicant) D Loether (Solicitor) (Respondent) Solicitors: Lionheart (Applicant) Bartier Perry (Respondent) File Number(s): 2023/60391 Publication restriction: Nil Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 following the deemed refusal by Liverpool City Council (the Respondent) of Development Application DA-2/2023 seeking development consent for the demolition of existing structures and the construction of a two-storey child care centre for 120 children with basement car parking at 31 Balanada Avenue, Chipping Norton that is otherwise legally described as Lots 3, 4 & 5 in DP 1222715. 2. On 3 August 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. 3. At the conciliation conference, the parties reached agreement on the matters in contention, subject to the preparation of amended plans and other documents, for which the Court granted an adjournment on two occasions. 4. A signed agreement was filed with the Court on 13 September 2023, in accordance with s 34(10) of the LEC Act. 5. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms 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. 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 a decision 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 7. For the reasons set out below, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 8. The development application, lodged on 6 January 2023, is supported by the written consent of the owner. The Council advertised the development application between 24 January - 9 February 2023 during which one submission was received. 9. The Site is located within the R3 Medium Density Residential zone according to the Liverpool Local Environmental Plan 2008 (LLEP), in which centre based child care facilities are permitted with consent, where consistent with the following objectives of the zone: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a concentration of housing with access to services and facilities. • To provide for a suitable visual transition between high density residential areas and lower density areas. • To ensure that a high level of residential amenity is achieved and maintained. 1. The height standard applicable to the Site is 8.5m under cl 4.3 of the LLEP with which the proposal complies. 2. Likewise, the proposed development complies with the Floor Space Ratio standard of 0.5:1 at cl 4.4(2) of the LLEP. 3. The site is not identified as an item of heritage significance, and is not within a heritage conservation area within the terms of cl 5.10 of the LLEP. Nor is the site within an area of Acid Sulfate Soils and so the provisions of cl 7.7 do not apply. State Environmental Planning Policy (Transport & Infrastructure) 2021 1. Section 3.23 of State Environmental Planning Policy (Transport & Infrastructure) 2021 (Infrastructure SEPP) requires consideration of the provisions of the Child Care Planning Guidelines (the Guidelines) before determining a development application. 2. On the basis of the assessment of the proposal against the relevant provisions of the Guidelines that is set out at pp 33-57 of the Statement of Environmental Effects prepared by Think Planners dated 16 December 2022, I accept that the Guidelines have been considered. 3. Included in the assessment against the Guidelines is an assessment of the indoor and outdoor unencumbered space requirements that are the subject of the non-discretionary standards at s 3.26 of the Infrastructure SEPP. State Environmental Planning Policy (Resilience and Hazards) 2021 1. On the basis of the conclusions recorded in the Preliminary Environmental Site Investigation prepared by Environmental Consulting Services dated 16 December 2022, I consider the site suitable for the development proposed pursuant to s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021. 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. 3. The Court notes: 1. that Liverpool City Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicants amending Development Application DA-2/2023, in accordance with the following plans and documents: Description Drawing No. Rev No. Prepared by Date Architectural Plans Compliance Table, Location Plan 01 C Baini Design Pty Ltd 4 August 2023 Site Plan 09 C Baini Design Pty Ltd 4 August 2023 Basement Floor Plan 10 C Baini Design Pty Ltd 4 August 2023 Ground Floor Plan 11 C Baini Design Pty Ltd 4 August 2023 First Floor Plan 12 C Baini Design Pty Ltd 4 August 2023 Roof Plan 13 C Baini Design Pty Ltd 4 August 2023 Elevations 14 C Baini Design Pty Ltd 4 August 2023 Elevations 15 C Baini Design Pty Ltd 4 August 2023 Sections 16 C Baini Design Pty Ltd 4 August 2023 Callout Elevations 17 C Baini Design Pty Ltd 4 August 2023 Kitchen & Laundry Details 18 C Baini Design Pty Ltd 4 August 2023 Schedule of Finishes 22 C Baini Design Pty Ltd 4 August 2023 GF Gross Floor Calculation Plan 23 C Baini Design Pty Ltd 4 August 2023 FF Gross Floor Calculation Plan 24 C Baini Design Pty Ltd 4 August 2023 GF Outdoor Play Area Calculation Plan 25 C Baini Design Pty Ltd 4 August 2023 FF Outdoor Play Area Calculation Plan 26 C Baini Design Pty Ltd 4 August 2023 Solar Access Plans 27 C Baini Design Pty Ltd 4 August 2023 Calculation Plan – 0-2 Indoor Play Area 28 C Baini Design Pty Ltd 4 August 2023 GF – Fencing Details 31 C Baini Design Pty Ltd 4 August 2023 FF – Fencing Details 32 C Baini Design Pty Ltd 4 August 2023 Streetscape Elevations 34 C Baini Design Pty Ltd 4 August 2023 Accessible Detail – Basement Floor 35 C Baini Design Pty Ltd 4 August 2023 Accessible Detail – Ground Floor 36 C Baini Design Pty Ltd 4 August 2023 Accessible Detail – First Floor 37 C Baini Design Pty Ltd 4 August 2023 Stormwater Plans – Drainage Plans Specifications Sheet S101 3 Deboke Engineering Consultants 21 August 2023 Basement Plan S200 3 Deboke Engineering Consultants 21 August 2023 Ground Floor Plan 1 of 2 S201 3 Deboke Engineering Consultants 21 August 2023 Ground Floor Plan 2 of 2 S202 3 Deboke Engineering Consultants 21 August 2023 First Floor Plan S203 3 Deboke Engineering Consultants 21 August 2023 Roof Plan S204 3 Deboke Engineering Consultants 21 August 2023 Details Sheet 1 of 4 S300 3 Deboke Engineering Consultants 21 August 2023 Details Sheet 2 of 4 S301 3 Deboke Engineering Consultants 21 August 2023 Details Sheet 3 of 4 S302 3 Deboke Engineering Consultants 21 August 2023 Details Sheet 4 of 4 S303 3 Deboke Engineering Consultants 21 August 2023 Erosion and Sediment Control Plan S400 3 Deboke Engineering Consultants 21 August 2023 Stormwater Plans – Civil Plans Specifications Sheet S101 1 Deboke Engineering Consultants 11 August 2023 General Arrangement Plan S200 1 Deboke Engineering Consultants 11 August 2023 Grading Plan S300 1 Deboke Engineering Consultants 11 August 2023 Slope Analysis Plan S301 1 Deboke Engineering Consultants 11 August 2023 Bulk Earthwork Plan S302 1 Deboke Engineering Consultants 11 August 2023 Driveway Long Sections S400 1 Deboke Engineering Consultants 11 August 2023 Council Standard Drawings S500 1 Deboke Engineering Consultants 11 August 2023 Council Standard Drawings S501 1 Deboke Engineering Consultants 11 August 2023 Landscape Plans Landscape Concept L - 01 B Outside In Design Group 22 August 2023 Landscape Concept First Floor L - 02 B Outside In Design Group 22 August 2023 Streetscape Elevation Balanada Avenue L - 03 B Outside In Design Group 22 August 2023 Description Rev Prepared by Date Plan of Management Version 2 Think Planners 22 August 2023 Accessibility Compliance Statement B Access Link Consulting Pty Ltd 22 August 2023 Traffic & Parking Statement – Post Section 34 - Hemanote Consultants Pty Ltd 22 August 2023 Vehicle Swept Paths - Hemanote Consultants Pty Ltd 22 August 2023 Environmental Noise Assessment 7609-1.1 Rev A Day Design Pty Ltd 23 August 2023 1. The Applicant filed the Amended Plans and other documents with the Court on 13 September 2023. Orders 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away as agreed or assessed as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development application DA-2/2023 for the demolition of structures and the construction of a two-storey child care centre for 120 children with basement car parking at 31 Balanada Avenue, Chipping Norton NSW 2017 is determined by the grant of development consent subject to the conditions in Annexure A. T Horton 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: 29 September 2023