Land and Environment Court New South Wales Medium Neutral Citation: MNM Brothers Pty Ltd v City of Parramatta Council [2023] NSWLEC 1672 Hearing dates: Conciliation Conference on 25 July and 25 August 2023 Date of orders: 9 November 2023 Decision date: 09 November 2023 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to Development Application DA/13/2023, as amended, for demolition of existing dwelling houses and ancillary structures, removal of trees, consolidation of two lots, construction of a two-storey centre-based childcare centre accommodating 95 children, basement level parking and associated landscaping, at 188-190 Junction Road, Winston Hills, subject to the conditions at Annexure A. (3) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. Catchwords: DEVELOPMENT APPEAL – demolition existing dwellings – construct childcare centre – conciliation conference – agreement between the parties – orders Legislation Cited: Education and Care Services National Regulations 2011 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 Parramatta Local Environmental Plan 2011, cll 4.3, 4.4, 6.2 Parramatta Local Environmental Plan 2023, cl 1.8A State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 1.120, Ch 3, Pt 3.3, ss 3.3, 3.22, 3.23, 3.24, 3.25 Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guidelines, 2021 Category: Principal judgment Parties: MNM Brothers Pty Ltd (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) C Nuttall (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) City of Parramatta Council (Respondent) File Number(s): 2023/82808 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Parramatta City Council (the Council) of DA13/2023 (the Development Application) for demolition of dwelling houses and removal of trees, consolidation of two lots, construction of a two-storey 'Centre Based' childcare centre accommodating 95 children, with basement parking and associated landscaping (the Proposed Development) at 188-190 Junction Road, Winston Hills, known as Lot 1 and 2 DP 1235426 (the Site). 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 site and at Court. I presided over the conciliation conference. 3. The parties reached an in principle agreement at the conciliation conference. Following a number of without prejudice discussions and an amendment of the proposal, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council's contentions. This decision involved Council approving an application to amend the Applicant's plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. 4. The Applicant's amended documents implemented the following changes: 1. a reduction in the number of children from 100 to 95; 2. revised internal layout to increase storage areas and removal of cornered areas to increase visibility; 3. increased front setback to 7m; 4. reconfigured parking layout to enable 8 visitor parking and 14 staff parking; 5. accessibility ramp added to lobby entrance; 6. revised balustrade to front access path; 7. new office check-in details on ground floor; 8. new service rooms added; 9. new external storage spaces added; 10. new light tunnels, skylights and heliostats added to increase solar access to playrooms and nurseries; and 11. removal of roof on eastern side with new front planter box and shade sails. 1. A full list of the amendments is set out in the Schedule of Amendments prepared by IDA Architects dated September 4 and 5 September 2023 and the relevant documents and plans are detailed below under Notations. 2. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the amended DA13/2023 for demolition of existing dwelling houses, removal of trees, construction of a childcare centre with basement parking and landscaping on the Site, subject to agreed conditions of consent at Annexure A. 3. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 4. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement (the Statement) provided to the Court on 20 October 2023. The statutory planning controls relevant to the site and the proposed development are listed in the Council's Statement of Facts and Contentions. 5. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters. Jurisdictional matters 1. The Development Application 13/2023 was made by MNM Brothers Pty Ltd with the consent of the owners of the Land (see the signed owners' consent in the Class 1 Application) on 17 November 2022. 2. The Development Application was notified in accordance with the Respondent's Community Participation Plan between 23 January 2023 to 14 February 2023. Five submissions were received. Two neighbours made oral submissions on site largely concerning traffic. I note the Respondent is satisfied with the Applicant's Updated Parking and Traffic Impact Assessment prepared by Stanbury Traffic Planning, dated 1 August 2023, and the final parking and access configuration of the amended proposal made by the Applicant. The objectors were accorded procedural fairness. State Environmental Planning Instruments State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) 1. Pursuant to s 4.6 of the Resilience and Hazards SEPP, a consent authority must be satisfied that appropriate consideration has been given to whether the Site is contaminated, and the suitability of the Site for the proposed development. 2. A Preliminary Site Investigation prepared by Geotech Services dated 28 November 2022 and a detailed Site Investigation prepared by Dr Upsilon Environments Pty Ltd dated 26 June 2023 conclude that the site is suitable for the proposed use. The Respondent accepts the Applicant's reports and the opinions given to satisfy the requirements of the Resilience and Hazards SEPP. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) 1. The Respondent has reviewed the documents comprising the Development Application and amended Application and is satisfied that the proposed development is consistent with Ch 2 of the Biodiversity SEPP. Chapter 6 does not apply to this development. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) 1. The Site does not have a frontage to a classified road. However, the Site is located approximately 30m from the M2 Motorway and pursuant to s 2.120 of the Transport SEPP, the consent authority must take into consideration the associated Child Care Planning Guidelines 2021 (the Guidelines). Chapter 3: Educational Establishments and Child Care Facilities 1. Chapter 3 relates to educational establishments and childcare facilities. The proposed building meets the definition of a "centre-based childcare facility", as defined in s 3.3 of the Transport SEPP. Accordingly, the DA is subject to assessment under Ch 3 (Educational Establishments and Child Care Facilities) of the Transport SEPP. 2. Part 3.3 establishes specific development controls for early education and care facilities: 1. Section 3.22 (Centre-based childcare facility—concurrence of Regulatory Authority required for certain development) – the Development Application now complies with reg 107 (indoor unencumbered space requirements) and reg 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations 2011; 2. Section 3.23 (Centre-based childcare facility—matters for consideration by consent authorities) - the proposed development has been designed and assessed in accordance with the provisions of the Child Care Planning Guideline as discussed below; 3. Section 3.24 (Centre-based childcare facility in certain zones—additional matters for consideration by consent authorities) – is not applicable as site is not located within land zoned IN1 General Industrial or IN2 Light Industrial; and 4. Section 3.25 (Centre-based childcare facility—floor space ratio) – the maximum FSR applicable for the site is 0.5:1. The original proposal included a gross floor area (GFA) of 627m2, which equated to an FSR of 0.48:1. The Development Application includes updated architectural plans which confirm a GFA of 638m2 and a corresponding FSR of 0.496:1. 1. The Applicant has provided an Addendum Statement of Environmental Effects prepared by DMPS dated August 2023 which demonstrates that the Development Application meets the requirements of Ch 3 of the Transport SEPP including addressing compliance with Child Care Planning Guideline 2021 and Education and Care Services National Regulations 2011. 2. The Respondent is satisfied that the Applicant's amended proposal meets each Principle in the Guidelines as set out in detail in the parties agreed Statement which I have read and accept. Parramatta Local Environmental Plan 2011 (LEP 2011) 1. The Development Application was lodged under the provisions of the LEP 2011. On 2 March 2023, LEP 2011 was repealed by P arramatta Local Environmental Plan 2023 (PLEP 2023). Clause 1.8A of the PLEP 2023 includes a savings provision, so the proposal is to be determined under the LEP 2011. 2. The site is zoned R2 Low Density Residential. A centre-based childcare facility is permissible with consent within the R2 zone. 3. The proposed development, as amended, complies with cl 4.3 (Height of buildings) and cl 4.4 (Floor space ratio) development standards of LEP 2011. 4. The development proposes earthworks to facilitate the construction of the basement car parking and pursuant to cl 6.2 (earthworks) the Applicant has prepared the following documents: 1. Geotechnical Investigation Report prepared by Eswnman Pty Ltd dated 12 December 2022 which confirmed the ground conditions at the site are suitable for the proposed childcare centre and associated works; 2. Construction and Demolition Waste Management Plan prepared by Elephants Foot Consulting dated 12 December 2022 confirming the source of any fill material and the destination of any excavated materials. 1. The Respondent has considered the above documents and the matters identified in cl 6.2(3). The conditions of consent require compliance with these documents. Conclusion 1. For these reasons, based on the evidence before me, and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions. 2. 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. 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. Notations 1. The Court notes that: 1. City of Parramatta Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA/13/2023 in accordance with the documents below: Plan Name Drawing number Revision Date Prepared by Amended Architectural Plans Calculations 0002 E 4 September 2023 IDA Design Group Site Plan 0008 E 4 September 2023 IDA Design Group Site Zones 0009 E 4 September 2023 IDA Design Group Basement Level 1001 F 5 September 2023 IDA Design Group Level 1 Ground 1002 F 5 September 2023 IDA Design Group Level 2 Plan 1003 F 5 September 2023 IDA Design Group Roof Plan 1004 E 4 September 2023 IDA Design Group North & South Elevation 2001 E 4 September 2023 IDA Design Group East & West Elevation 2002 E 4 September 2023 IDA Design Group Section – Sheet 1 3001 E 4 September 2023 IDA Design Group Section – Sheet 2 3002 E 4 September 2023 IDA Design Group VFS – Sheet 1 4003 E 4 September 2023 IDA Design Group VFS – Sheet 2 4004 E 4 September 2023 IDA Design Group Indoor Play Area – Sheet 1 4005 E 4 September 2023 IDA Design Group Indoor Play Area – Sheet 2 4006 E 4 September 2023 IDA Design Group Outdoor Play Area – Sheet 1 4007 E 4 September 2023 IDA Design Group Outdoor Plan Area – Sheet 2 4008 E 4 September 2023 IDA Design Group Evacuation Plan 4012 E 4 September 2023 IDA Design Group 3D View 1 4013 E 4 September 2023 IDA Design Group Amended Landscape Plans Landscape and play item layout: Level 01 ground floor DA-L101 C 1 September 2023 Canvas Landscape Architects Landscape and play item layout: Level 02 DA-L102 C 1 September 2023 Canvas Landscape Architects Landscape typical details, proposed plan schedule & maintenance diagram DA-L103 C 1 September 2023 Canvas Landscape Architects Reports Addendum Statement of Environmental Effects prepared by DMPS dated August 2023 Air Quality Investigation Report prepared by Todoroski Air Sciences dated 11 July 2023 Amended Noise Impact Assessment prepared by Rodney Stevens Acoustics dated 2 August 2023 Amended Plan of Management prepared by Ology dated July 2023 DSI Report prepared by Dr Upsilon Environments Pty Ltd dated 26 June 2023 Amended Parking & Traffic Impact Assessment prepared by Stanbury Traffic Planning dated 1 August 2023 Updated Access Report prepared by Vista Access Architects dated 28 September 2023 Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application DA/13/2023, as amended, for demolition of existing dwelling houses and ancillary structures, removal of trees, consolidation of two lots, construction of a two-storey centre-based childcare centre accommodating 95 children, basement level parking and associated landscaping, at 188-190 Junction Road, Winston Hills, subject to the conditions at Annexure A. 3. Applicant to pay the Respondent's costs thrown away as a result of the amendment, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. L Byrne Acting Commissioner of the Court Annexure A ********** Amendments 09 November 2023 - Correction to formatting error in orders. 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: 09 November 2023