Land and Environment Court New South Wales Medium Neutral Citation: Birch Jam Pty Ltd v Liverpool City Council [2023] NSWLEC 1628 Hearing dates: Conciliation conference on 19 June 2023 Date of orders: 24 October 2023 Decision date: 24 October 2023 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court orders: (1) The Applicant is granted leave to amend Development Application No. 1111/2022 and to rely upon the amended plans and documents listed at [10(2)]. (2) The Applicant is to pay the Respondent's costs pursuant to 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $1,000, within 28 days. (3) The appeal is upheld. (4) Development Application No. 1111/2022 for the construction of a two-storey x 87 place 'Centre-Based Child Care Facility' with a total of 22 car parking spaces over a basement level. Amalgamate two separate land parcels, remove identified trees and the demolition of all existing structure at the properties comprised in folio identifiers 62/244786 known as 15 Birch Avenue, Casula NSW 2170 and 63/244786 known as 13 Birch Avenue, Casula NSW 2170, is approved subject to the conditions included at Annexure "A". Catchwords: DEVELOPMENT APPLICATION – child care centre – conciliation conference – agreement between the parties – orders Legislation Cited: Education and Care Services National Regulations 2011, regs 107, 108 Environmental Planning and Assessment Act 1979, ss 8.7, 8.15 Land and Environment Court Act 1979, s 34 Liverpool Local Environmental Plan 2008, cll 4.3, 4.4, 5.10, 7.6, 7.7, 7.8, 7.11, 7.12, 7.13, 7.17, 7.18 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 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 Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021 Liverpool Development Control Plan 2008 Category: Principal judgment Parties: Birch Jam Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: M Draybi (Solicitor) (Applicant) C Campbell (Solicitor) (Respondent) Solicitors: Centurion Lawyers Pty Ltd (Applicant) Liverpool City Council (Respondent) File Number(s): 2022/381895 Publication restriction: Nil Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of Liverpool City Council's deemed refusal of Development Application No 1111/2022 (the DA) seeking consent for the construction of a 2-storey x 87 place 'Centre-Based Child Care Facility' with a total of 22 car parking spaces over a basement level. Amalgamate two separate land parcels, remove identified trees and the demolition of all existing structure at the properties comprised in folio identifiers 62/244786 known as 15 Birch Avenue, Casula NSW 2170 and 63/244786 known as 13 Birch Avenue, Casula NSW 2170 (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 19 June 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 DA. 4. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted several further adjournments 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 the 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 20 July 2023. An updated agreement was filed by the parties on 18 October 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 DA was advertised and notified to surrounding properties by the respondent between 20 December 2022 and 25 January 2023 and again between 29 June 2023 and 13 July 2023. Seven submissions were received. The parties submit and I concur that all issues raised in submissions by residents have been taken into consideration and satisfactorily addressed. 3. The DA, as amended, before the Court, seeks development consent for a centre based childcare centre. The parties submit and I agree that proposed development is permissible in the R4 High Density Residential zone under the Liverpool Local Environmental Plan 2008 (LLEP). 4. The parties submit and I agree that the proposed development is consistent with the objectives of that zone, which provide: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high 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 high concentration of housing with good access to transport, services and facilities. • To minimise the fragmentation of land that would prevent the achievement of high density residential development. 1. The parties agree that the proposed development with a height of 8.5 m complies with cl 4.3 of LLEP as the maximum building height for any building on the Site does not exceed 15 metres. 2. Clause 4.4 of LLEP provides for a maximum floor space ratio of 1:1. The parties submit and I accept that proposed floor space ratio is 0.45:1 which complies with cl 4.4. 3. Clause 5.10 of the LLEP requires the consent authority to consider the effect of the proposed development on the heritage significance of a heritage item or heritage conservation area concerned. The Site is not listed as a heritage item, within a conservation area, nor are there any heritage items within close proximity to the Site. 4. The parties submit and I agree that the matters in cl 7.6 of the LLEP relating to environmental significant land are not relevant as the Site is not environmentally significant land. 5. The parties submit and I agree that the matters in cl 7.7 of the LLEP relating to acid sulfate soils are not relevant as the Site is not identified as containing acid sulfate soils. 6. The parties submit and I am satisfied that the matters in cl 7.8 of the LLEP relating to flood planning are not relevant as the Site is not identified as being flood prone. 7. The parties submit and I agree that the matters in cl 7.11 of the LLEP relating to minimum dwelling density are not relevant as the Site is not located within the dwelling density map. 8. The parties submit and I agree that the matters in cl 7.12 of the LLEP relating to maximum number of lots are not relevant as the Site is not located within the dwelling density map. 9. The parties submit and I agree that the matters in cl 7.13 of the LLEP relating to minimum lot width in zones, R1, R2, R3 and R4 are not relevant as no subdivision is proposed as part of this development. 10. The parties submit and I agree that the matters in cl 7.17 of the LLEP relating to development in flight paths are not relevant as the Site is not located within a flight path. 11. The parties submit and I agree that the matters in cl 7.18 of the LLEP relating to development in areas subject to potential aircraft noise are not relevant as the Site is not affected by aircraft noise. 12. The parties submit and I am satisfied that the proposal as amended complies with the Liverpool Development Control Plan 2008 (DCP), including specific provisions of Clause 2 of Part 3.8 of the DCP as they relate to childcare centres within the local government area. These matters are addressed in the table appearing at pages 62 to 71 of the Statement of Environmental Effects (SEE). 13. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the Site. Chapter 3 - Educational establishments and child care facilities of the Transport and Infrastructure SEPP applies to the proposed development. Section 3.23 of the Transport and Infrastructure SEPP requires a consent authority to consider the Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021 (Child Care Planning Guideline) when determining a development application. The development complies with regs 107 and 108 of the Education and Care Services National Regulations 2011 with respect to indoor and outdoor unencumbered space. As such, concurrence from the Secretary of the Department of Education is not required under s 3.22 of the Transport and Infrastructure SEPP. The parties submit and I am satisfied that the matters for consideration under the Child Care Planning Guideline have been addressed in the SEE and the proposal (as amended) 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 (as amended) complies with the relevant matters under the Child Care Planning Guidelines and the Education and Care Services National Regulations 2011. 14. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetations. The parties agree that the development proposes appropriate landscape embellishment works within a residential context undertaken in accordance with the Landscape Plan. Whilst the proposal includes the removal of fourteen trees from the Site, the parties agree and I am satisfied that the DA, as amended, proposes appropriate replacement trees and incorporates suitable street trees. 15. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 nominates matters that must be considered before a development application is determined. I am satisfied that consent can be granted because the Preliminary Site Investigation Report dated 5 October 2022 prepared by Environmental Consulting Services confirms that based on the findings of their investigation, the Site is considered suitable for proposed redevelopment and sensitive land use, providing that the recommendations in Section 8 of the report are undertaken to address any potential asbestos during demolition. 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 parties have agreed as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions). 2. The applicant is granted leave to amend Development Application No. 1111/2022 and to rely upon the following amended plans and documents: Drawing No. Revision Title Prepared By Date Architectural Drawings 00 C Cover Page Baini Design 20/06/2023 01 C Compliance Table, Location Plan Baini Design 20/06/2023 02 C Site Context Plan Baini Design 20/06/2023 03 C Site Analysis Plan Baini Design 20/06/2023 04 C Shadow Diagram Plans Baini Design 20/06/2023 05 C Shadow Diagram Plan Baini Design 20/06/2023 06 C Demolition Plan Baini Design 20/06/2023 07 C Site Plan Baini Design 20/06/2023 08 C Basement Floor Plan Baini Design 20/06/2023 09 C Ground Floor Plan Baini Design 20/06/2023 10 C First Floor Plan Baini Design 20/06/2023 11 C Roof Plan Baini Design 20/06/2023 12 C Elevations Baini Design 20/06/2023 13 C Elevations Baini Design 20/06/2023 14 C Sections Baini Design 20/06/2023 15 C Callout Elevtions Baini Design 20/06/2023 16 C Kitchen & Laundry Details Baini Design 20/06/2023 17 C Typical Nappy Change Detail Baini Design 20/06/2023 18 C Typical Craft Bench Detail Baini Design 20/06/2023 19 C Typical Bottle Prep Detail Baini Design 20/06/2023 20 C Schedule of Finishes Baini Design 20/06/2023 21 C Calculation Plan – Ground Floor Baini Design 20/06/2023 22 C Calculation Plan – First Floor Baini Design 20/06/2023 23 D Calculation Plan – 0-2 Indoor Play Area Baini Design 20/06/2023 24 C Calculation Plan – 2-3 Indoor Play Area Baini Design 20/06/2023 25 C Calculation Plan – 3-5 Indoor Play Area 01 Baini Design 20/06/2023 26 C Calculation Plan – 3-5 Indoor Play Area 02 Baini Design 20/06/2023 27 C Solar Study Plan – Ground Floor Baini Design 20/06/2023 28 C Solar Study Plan – First Floor Baini Design 20/06/2023 29 C Fencing Details – Ground Floor Baini Design 20/06/2023 30 C Fencing Details – First Floor Baini Design 20/06/2023 31 C 3D Perspectives Baini Design 20/06/2023 32 C Streetscape Elevation Baini Design 20/06/2023 33 C Accessible Details – Basemenet Floor Baini Design 20/06/2023 34 C Accessible Details – Ground Floor Baini Design 20/06/2023 35 C Accessible Details – First Floor Baini Design 20/06/2023 36 C Solar Acceess Plan – Existing Adjoining Property Baini Design 20/06/2023 37 C Solar Access Plan – Existing Adjoining Property Baini Design 20/06/2023 38 C Proposed Adjoining Properties Baini Design 20/06/2023 Landscape Drawings 01 D Landscape Concept Outside In Design Group 07/05/2023 (issued 25/06/2023) 02 D Street Elevation + Plan Schedule Outside In Design Group 07/05/2023 (issued 25/06/2023) Stormwater Drawings SW010 B Stormwater Concept Plan – Basement Level Mance Arraj Civil & Structural Engineers 20/06/203 SW020 B Stormwater Concept Plan – Ground Level Mance Arraj Civil & Structural Engineers 20/06/2023 SW021 B Plan & Sections of OSD & Stormfilter Tank and Section Details of Pits 9 & 12 Mance Arraj Civil & Structural Engineers 20/06/2023 SW030 B Stormwater Concept Drawing Level 1 and Roof Mance Arraj Civil & Structural Engineers 20/06/2023 Supplementary / Additional Reports 7541-1.1R B Environmental Noise Impact Assessment Day Design Consulting Acoustical Engineers 21/06/2023 Social Impact Comment Think Planners 19/06/2023 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 granted leave to amend Development Application No. 1111/2022 and to rely upon the amended plans and documents listed at [10(2)]. 2. The Applicant is to pay the Respondent's costs pursuant to 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $1,000, within 28 days. 3. The appeal is upheld. 4. Development Application No. 1111/2022 for the construction of a two-storey x 87 place 'Centre-Based Child Care Facility' with a total of 22 car parking spaces over a basement level. Amalgamate two separate land parcels, remove identified trees and the demolition of all existing structure at the properties comprised in folio identifiers 62/244786 known as 15 Birch Avenue, Casula NSW 2170 and 63/244786 known as 13 Birch Avenue, Casula NSW 2170, is approved subject to the conditions included at Annexure "A". ……………………. L Sheridan Acting Commissioner of the Court Annexure A (462655, 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: 24 October 2023