Land and Environment Court New South Wales Medium Neutral Citation: Madrajat v Blacktown City Council [2023] NSWLEC 1595 Hearing dates: Conciliation conference on 19 July 2023 Date of orders: 11 October 2023 Decision date: 11 October 2023 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs 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 No DA-22-01533 for the demolition, tree removal and construction of a two storey child care centre for 48 children with 15 car spaces within the basement level, landscaping and acoustic fencing at the property identified as Lot 2 in DP 1137842 and known as 43 Victoria Road, Rooty Hill NSW 2766, subject to the conditions at Annexure A. Catchwords: APPEAL – development application – centre based child care facility – conciliation conference – agreement reached – orders made Legislation Cited: Blacktown Local Environmental Plan 2015, cl 4.3 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, ss 37, 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.9 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.25 Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021 Category: Principal judgment Parties: Sarah Madrajat (Applicant) Blacktown City Council (Respondent) Representation: Counsel: J Reid (Applicant) S Puckeridge (Solicitor) (Respondent) Solicitors: Centurion Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/34011 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for a two storey child care centre for 48 children at 43 Victoria Road, Rooty Hill. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 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 19 July 2023. I presided over the conciliation conference. The conciliation conference was then adjourned to Online Court on several occasions. 3. Following the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement filed on 26 September 2023, following the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). 4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a document titled Agreed Statement – Jurisdictional Prerequisites. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 2.1.1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The site is zoned R2 Low Density Residential pursuant to the Blacktown Local Environmental Plan 2015 (BLEP) and development for the purposes of a centre-based child care facility is a nominated use that is permissible with development consent in the zone. * The proposed development complies with the development standard for the maximum building height, pursuant to cl 4.3 of the BLEP, and there are no development standards in the BLEP concerning floor space ratio. * Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Preliminary Site Investigation report dated 12 September 2022, there are no known sources of contamination on the site and the site is suitable for the development, subject to a number of recommendations concerning hazardous building materials associated with demolition and the removal of excavated material, which have been incorporated into the conditions of consent. * The site is located in the Hawkesbury-Nepean Catchment, and therefore Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. Based on the letter prepared by Brad Delapierre of Think Planners dated 13 September 2023, I am satisfied of the matters in ss 6.6(2), 6.7(2) and 6.9(2) of the SEPP B&C. * Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) concerns child care facilities and applies to the proposed development. The proposed development complies with the requirements for unencumbered indoor and outdoor space, and therefore concurrence of the Regulatory Authority is not required by s 3.22. In accordance with s 3.23 and based on the Statement of Environmental Effects, I have considered the applicable provisions of the Child Care Planning Guideline. Further, the proposed development complies with the floor space ratio control in s 3.25 of the SEPP TI. * I have considered the issues raised in the submission received as a result of the notification of the development application. 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, 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. 3. The Court notes that: 1. Blacktown City Council, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 the amendment of Development Application No DA-22-01533 in accordance with the following amended plans and documents: Drawing No Revision Title Prepared By Date Architectural Drawings 00 C Cover Page Baini Design 20/07/2023 01 C Compliance Table, Location Plan Baini Design 20/07/2023 02 C Site Context Plan Baini Design 20/07/2023 03 C Site Analysis Plan Baini Design 20/07/2023 04 C Demolition Plan Baini Design 20/07/2023 05 C 9am Shadow Diagram Baini Design 20/07/2023 06 C 12pm Shadow Diagram Baini Design 20/07/2023 07 C 3pm Shadow Diagram Baini Design 20/07/2023 08 C Site Plan Baini Design 20/07/2023 09 C Basement Floor Baini Design 20/07/2023 10 C Ground Floor Baini Design 20/07/2023 11 C First Floor Baini Design 20/07/2023 12 C Roof Plan Baini Design 20/07/2023 13 C Elevations Baini Design 20/07/2023 14 C Sections Baini Design 20/07/2023 15 C Kitchen and Laundry Detail Baini Design 20/07/2023 16 C Typical Bottle Prep Detail Baini Design 20/07/2023 17 C Typical Craft Bench Detail Baini Design 20/07/2023 18 C Typical Nappy Change Baini Design 20/07/2023 19 C Schedule of Finishes Baini Design 20/07/2023 20 C Calculation Plan – Ground Floor Baini Design 20/07/2023 21 C Calculation Plan – First Floor Baini Design 20/07/2023 22 C Calculation – Indoor Play Area – Age 0-2 Baini Design 20/07/2023 23 C Calculation – Indoor Play Area – Age 2-3 Baini Design 20/07/2023 24 C Calculation – Indoor Play Area – Age 3-5 Baini Design 20/07/2023 25 C Shading Diagram Plan – Ground Floor Baini Design 20/07/2023 26 C Solar Access Plan – Ground Floor 10am Baini Design 20/07/2023 27 C Solar Access Plan – Ground Floor 11am Baini Design 20/07/2023 28 C Solar Access Plan – Ground Floor 12pm Baini Design 20/07/2023 29 C Fencing Details Baini Design 20/07/2023 30 C 3D Perspective Baini Design 20/07/2023 31 C Streetscape Elevation Baini Design 20/07/2023 32 C Access Detail – Basement Baini Design 20/07/2023 33 C Access Detail – Ground Floor Baini Design 20/07/2023 34 C Access Detail – First Floor Baini Design 20/07/2023 Landscape Plan L-01 B Landscape Concept Outside Design Group 15/06/2023 Swept Path Assessment 22-120-03-V2 Car Park Compliance Ground Floor/Basement Swept Path Assessment Stanbury Traffic Planning 26/07/2023 Sheet 01 22-120-03-V2 Car Park Compliance Ground Floor/Basement Swept Path Assessment Stanbury Traffic Planning 26/07/2023 Sheet 02 22-120-03-V2 Car Park Compliance Basement Swept Path Assessment Stanbury Traffic Planning 26/07/2023 Sheet 03 22-120-03-V2 Car Park Compliance Basement Swept Path Assessment Stanbury Traffic Planning 26/07/2023 Sheet 04 22-120-03-V2 Car Park Compliance Basement Swept Path Assessment Stanbury Traffic Planning 26/07/2023 Sheet 05 22-120-03-V2 Car Park Compliance Basement Swept Path Assessment Stanbury Traffic Planning 26/07/2023 Sheet 06 22-120-03-V2 Car Park Compliance Basement Swept Path Assessment Stanbury Traffic Planning 26/07/2023 Sheet 07 22-120-03-V2 Car Park Compliance Basement Swept Path Assessment Stanbury Traffic Planning 26/07/2023 Sheet 08 22-120-03-V2 Car Park Compliance Basement Swept Path Assessment Stanbury Traffic Planning 26/07/2023 Sheet 09 Stormwater Plans SW001 D Stormwater Layout Plan Cover Sheet Baini Design 18/07/2023 SW010 D Stormwater Layout Plan Basement Plan, Notes & Details Baini Design 18/07/2023 SW020 D Stormwater Layout Plan Ground Floor Plan, Notes & Details Baini Design 18/07/2023 SW021 D Stormwater Layout Plan WSUD & RWT Section & Details Baini Design 18/07/2023 SW022 A Stormwater Layout Plan Cut & Fill and Retaining Wall Plan Layout Baini Design 18/07/2023 ER001 D Stormwater Layout Plan Erosion & Sediment Control Plan, Notes & Details (1/2) Baini Design 18/07/2023 ER002 D Stormwater Layout Plan Erosion & Sediment Control Plan, Notes & Details (2/2) Baini Design 18/07/2023 Acoustic Fence Details 7569-3 Outdoor Play Area Day Design Pty Ltd (1m Barrier Sectional) Supplementary / Additional Reports 7569-3.1L A Acoustic Review of Architectural Drawings Day Design Consulting Acoustical Engineers 15/08/2023 7569-1.1R Environmental Noise Impact Assessment Day Design Consulting Acoustical Engineers 23/08/2022 Version 2 Plan of Management 13/08/2023 Report on proposal for a child care service at: 43 Victoria Rd Rooty Hill NSW Early Education Solutions 06/07/2023 Letter re Waste Management Process Capital City Waste Services 02/08/2023 Letter re Waste Management and Recycling Services Waste Wise Environmental 21/07/2023 2 Preliminary Environmental Site Investigation & Groundwater Investigation Environmental Consulting Services Pty Ltd 22/06/2023 2 Arboricultural Impact Assessment and Tree Management Plan Horticultural Management Services 7/06/2023 1. The Applicant filed the amended development application on 27 September 2023. 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs 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 No DA-22-01533 for the demolition, tree removal and construction of a two storey child care centre for 48 children with 15 car spaces within the basement level, landscaping and acoustic fencing at the property identified as Lot 2 in DP 1137842 and known as 43 Victoria Road, Rooty Hill NSW 2766, subject to the conditions at Annexure A. J Gray 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: 11 October 2023