Land and Environment Court New South Wales Medium Neutral Citation: Helweh v Canterbury-Bankstown Council [2023] NSWLEC 1743 Hearing dates: Conciliation conferences on 4 August and 26 September 2023 Date of orders: 07 December 2023 Decision date: 07 December 2023 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders: (1) The Applicant is to pay the Respondent's costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $3,000 within 28 days. (2) The appeal is upheld. (3) Development Application No DA-1169/2022 for the demolition of existing structures and construction of a two storey centre based child care facility for 40 children and parking for 10 passenger vehicles in a basement level on Lot 23 in Deposited Plan 30974, known as 77 Orchard Road, Bass Hill, New South Wales, 2197 is approved subject to the conditions included in Annexure "A". Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – centre based child care facility - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 8.7, Land and Environment Court Act 1979, s 34 Education and Care Services National Regulations 2011 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, s 6.1 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), Ch 3, ss 3.22, 3.23, 3.26 Bankstown Local Environmental Plan 2015, cll 2.2, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.8 Cases Cited: nil Texts Cited: Bankstown Development Control Plan 2015 Canterbury Bankstown Development Contributions Plan 2022 Canterbury Bankstown Community Participation Plan October 2022 Department of Planning, Industry and Environment, Child Care Planning Guideline September 2021 Category: Principal judgment Parties: Ali Helweh (First Applicant) Fatima Helweh (Second Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: T Poisel (Applicants) M Bonanno (Solicitor) (Respondent) Solicitors: Centurian Lawyers (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2023/103399 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA-1169/2022 (the DA) for the demolition of existing structures and construction of a two storey centre based child care facility for 40 children and parking for 10 passenger vehicles in a basement level on Lot 23 in Deposited Plan 30974, known as 77 Orchard Road, Bass Hill, New South Wales, 2197 (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 August 2023. I presided over the conciliation conference, which began with an on-site view. There was one objector to the proposed development, who did not attend the on-site view. 3. The proposal as lodged and advertised provided for a two (2) storey centre-based child care facility for fifty-two (52) children and parking for thirteen (13) vehicles in a basement level. 4. The s 34 conciliation conference was adjourned to 26 September 2023 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. These amendments reduced the capacity of the proposed child care facility to forty (40) children and basement parking for ten (10) passenger vehicles, which allowed for improvements in the design of the centre and compliance with the Education and Care services National Regulations. 5. At the conciliation conference on 26 September 2023 the parties indicated that they had generally reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, subject to a satisfactory soil assessment being submitted by the Applicant. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions. The signed s 34 agreement with Annexure A was filed on 14 November 2023. 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. 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. 7. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows: Environmental Planning and Assessment Act 1979 Owner's consent 1. The DA was lodged on 14 December 2022 by Baini Design Pty Ltd who provided owner's consent. Community Participation (Sch 1, Div 2, 7(1)) 1. The DA was exhibited between 18 January and 8 February 2023 in accordance with the requirements of the Canterbury Bankstown Community Participation Plan 2022. One (1) submission was received in response to that notification. Conditions 1. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act. Evaluation under Section 4.15 1. The parties agree that the amended DA can be approved taking into consideration the matters in s 4.15(b) to (e) of the EPA Act, and that matters relevant to s 4.15 (b), (c) and (d) are considered generally in the Statement of Environmental Effects submitted with the DA. Bankstown Local Environmental Plan 2015 1. The Bankstown Local Environmental Plan 2015 (BLEP) is the relevant local environmental planning instrument that applies to the site, as the DA was lodged prior to the gazettal of the Canterbury Bankstown Local Environmental Plan 2023. Under the BLEP provisions: 1. The site is zoned R2 Low Density Residential pursuant to cl 2.2 of the BLEP; and 1. The proposed development is permissible with consent in the R2 zone; and 2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out. 1. Pursuant to cl 4.3 of the BLEP the maximum height of buildings on the site is 9 metres; and 1. The height of the proposed development is less than 9 metres, and thus complies with cl 4.3. 1. Pursuant to cl 4.4 of the BLEP a maximum floor space ratio (FSR) of 0.4 for non-residential uses applies to the site; and 1. The proposed development has an FSR of 0.38:1, and thus complies with cl 4.4. 1. Clause 5.10 of the BLEP relates to heritage conservation; and 1. The site is not a listed heritage item, nor is located within a heritage conservation area under the CBLEP. There are no listed heritage items close to the site. 1. The provisions of cl 5.21 of the BLEP concern flood planning. The site is identified as being flood prone; and 1. The parties advise that a stormwater report has been prepared regarding flood mitigation measures, therefore complying with cl 5.21. 1. The provisions of cl 6.1 of the BLEP concern acid sulfate soils; and 1. The parties advise the site is not affected by acid sulfate soils. 1. The provisions of cl 6.2 of the BLEP concern earthworks; and 1. The parties advise that the proposed development will have minimal adverse environmental or amenity impact, will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability in the area and that the development work is consistent with the current and future use of the land; and 2. An erosion and sediment control plan has been prepared for the proposed development. 1. Clause 6.8 of the BLEP provides special provisions applying to centre-based child care facilities; and 1. The parties advise that these provisions are not relevant as the site is not located on a classified road or cul-de-sac. In addition, the road pavement width is 10 metres and complies with cl 6.8(b). State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. 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 vegetation; and 1. The parties advise that the proposed development includes appropriate landscape embellishment works within a residential context undertaken in accordance with the Landscape Plan including the planting of new trees in the rear and front setback areas. 1. Chapter 6 of the Biodiversity and Conservation SEPP seeks to manage and promote integrated catchment management policies within the Georges River Catchment. The site is subject to broad planning principles; and 1. The parties advise that the proposed development will include appropriate environmental safeguards, including a drainage concept and erosion and sediment controls that will be in place throughout the construction phase of the development. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 2. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out; and 1. The parties advise that the site is considered suitable for the proposed sensitive land use, provided that the recommendations in Section 8 of the Preliminary Site Investigation Report dated 26 July 2022 prepared by Environmental Consulting Services are undertaken to address any potential asbestos during demolition, and any hazardous building material to be excavated and disposed off-site, should be classified in accordance with the NSW EPA Waste Classification Guidelines 2014; 2. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW. Section 3.26 of the Transport and Infrastructure SEPP contains non-discretionary development standards for centre based child care centres; and 1. The parties advise that the proposed development will provide more than 3.25m2 of unencumbered indoor play space and more than 7m2 of unencumbered outdoor play space per child which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations 2011. Education and Care Service National Regulations 2011 1. The Education and Care Services National Regulations 2011 provides extensive controls and requirements in addition to that of Local Environmental Plans and Development Control Plans and includes licensing and approvals processes, including documentation requirements; facilities and equipment requirements; staffing requirements; child number requirements; operational requirements; administrative requirements; and probity check requirements; and 1. The parties advise that compliance with the Education and Care Services National Regulations is detailed at pages 71 to 73 of the Statement of Environmental Effects submitted with the DA. Child Care Planning Guideline 2021 1. The Child Care Planning Guideline 2021 establishes the assessment framework to deliver consistent planning outcomes and design quality for centre based child care facilities in NSW; and 1. The parties advise that compliance with the Child Care Planning Guideline 2021 is addressed at pages 30 to 54 of the Statement of Environmental Effects submitted with the DA. Bankstown Development Control Plan 2015 1. The Bankstown Development Control Plan 2015 (DCP) applies to the site; and 1. The parties submit that the proposed development complies with the DCP as it relates to child care facilities within the Canterbury Bankstown municipality as detailed in the table at pages 57 to 71 in the Statement of Environmental Effects submitted with the DA. Conclusion 1. 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. 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. 3. The Court notes: 1. That Canterbury Bankstown Council, as consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No 1169/2022 made on 13 November 2023 to rely on the documents and plans specified below (the amended development application): Drawing No. Revision Title Prepared By Date Architectural Drawings 01 C Compliance Table, Location Plan Baini Design 28/08/2023 02 C Site Context Plan Baini Design 08/08/2023 03 C Site Analysis Plan Baini Design 08/08/2023 04 C 9AM Shadow Diagram Baini Design 08/08/2023 05 C 12PM Shadow Diagram Baini Design 08/08/2023 06 C 3PM Shadow Diagram Baini Design 08/08/2023 07 C Site Plan Baini Design 08/08/2023 08 C Demolition Plan Baini Design 08/08/2023 09 C Basement Floor Baini Design 28/08/2023 10 C Ground Floor Baini Design 28/08/2023 11 C First Floor Plan Baini Design 28/08/2023 12 C Roof Plan Baini Design 28/08/2023 13 C Elevations Baini Design 28/08/2023 14 C Elevations Baini Design 28/08/2023 15 C Sections Baini Design 28/08/2023 16 C Callout Elevations Baini Design 08/08/2023 17 C Kitchen & Laundry Details Baini Design 08/08/2023 18 C Typical Nappy Change Baini Design 08/08/2023 19 C Typical Craft Bench Detail Baini Design 08/08/2023 20 C Typical Bottle Prep Detail Baini Design 08/08/2023 21 C Schedule of Finishes Baini Design 08/08/2023 22 C Outdoor Play Area Calculation Plan – GF Baini Design 28/08/2023 23 C Outdoor Play Area Calculation Plan – FF Baini Design 28/08/2023 24 C Solar Study Calculation Plan – GF Baini Design 28/08/2023 25 C Solar Study Calculation Plan – FF Baini Design 28/08/2023 26 C 0-2 Indoor Play Area Calculation Baini Design 08/08/2023 27 C 2-3 Indoor Play Area Calculation Baini Design 08/08/2023 28 C 3-5 Indoor Play Area Calculation Baini Design 08/08/2023 29 C Fencing Details – GF Baini Design 08/08/2023 30 C Fencing Details – FF Baini Design 08/08/2023 31 C 3D Perspectives Baini Design 08/08/2023 32 C Streetscape Elevation Baini Design 08/08/2023 33 C Accessible Detail – Basement Floor Baini Design 08/08/2023 34 C Accessible Detail – Ground Floor Baini Design 08/08/2023 35 C Accessible Detail – First Floor Baini Design 08/08/2023 36 C Ground Floor FSR Plan Baini Design 28/08/2023 37 C First Floor FSR Plan Baini Design 28/08/2023 Landscape Plans 1 B Landscape Plan 1 Iscape Landscape Architecture 06/09/2023 2 B Landscape Plan 2 Iscape Landscape Architecture 6/092023 Stormwater Plans C-00E E General notes Leading Engineers 05/09/2023 C-01E E General notes Leading Engineers 05/09/2023 C-02E E Sediment & Erosion Control Plan Leading Engineers 05/09/2023 C-03E E Basement Drainage Plan Leading Engineers 05/09/2023 C-04E E Stormwater Drainage Plan Leading Engineers 05/09/2023 C-05E E Pump details Leading Engineers 05/09/2023 C-06E E Stormwater details Leading Enginners 05/09/2023 Supplementary / Additional Reports 22-094-5 Updated Parking & Traffic Impact Assessment Stanbury Traffic Planning 04/09/2023 22102 Amended Waste Management Plan Dickens Solutions September 2023 7542-1.1 A Environmental Noise Impact Assessment Day Design Pty Ltd 1/09/2023 Plan of Management Think Planners 21/09/2023 Air Quality Assessment Todoroski Air Sciences 13/07/23 Soil Assessment Environmental Consulting Services 19/10/23 1. The Court orders: 1. The Applicant is to pay the Respondent's costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $3,000 within 28 days. 2. The appeal is upheld. 3. Development Application No DA-1169/2022 for the demolition of existing structures and construction of a two storey centre based child care facility for 40 children and parking for 10 passenger vehicles in a basement level on Lot 23 in Deposited Plan 30974, known as 77 Orchard Road, Bass Hill, New South Wales, 2197 is approved subject to the conditions included in Annexure "A". G Kullen Acting 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: 07 December 2023