Hatch v Georges River Council [2024] NSWLEC 1047

Land and Environment Court New South Wales

Medium Neutral Citation: Hatch v Georges River Council [2024] NSWLEC 1047 Hearing dates: 4 December 2023 Date of orders: 14 February 2024 Decision date: 14 February 2024 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The appeal is dismissed. (2) Modification Application number MOD2021/0193 with respect to Lots 90, 91 and 92 in DP7148 also known as 36-40 Anderson Road, Mortdale, is determined by way of refusal. (3) All exhibits are returned except for Exhibits A, C, D, E and 12. Catchwords: MODIFICATION APPLICATION – child care centre – application as modified is not substantially the same – appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Georges River Local Environmental Plan 2021 Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 Category: Principal judgment Parties: John Hatch (Applicant) Georges River Council (Respondent) Representation: Counsel: J Smith (Applicant) H Irish (Respondent)

Solicitors: Wilshire Webb Staunton Beattie (Applicant) Georges River Council (Respondent) File Number(s): 2022/354741 Publication restriction: No

JUDGMENT 1. These Class 1 proceedings arise as a result of the refusal, by Georges River Council (the Respondent) of the application by John Hatch to modify an existing consent, 10/DA-381, for a childcare centre at 36-38 Anderson Road, Mortdale. These proceedings have been brought to Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The modification application, MOD2021/0193 proposes alterations and additions to the existing childcare centre, which currently supports 68 children. The modification application relates to three lots which are Lots 90, 91 and 92 in DP 7148, which are respectively known as 40, 38 and 36 Anderson Road, Mortdale. 3. Specifically, the modification application requests the following: 1. To increase the approved child placement numbers from 68 to 90 2. Conversion of the existing car park at 36 Anderson Road, Mortdale to an outdoor play area 3. Demolition of existing structures at 40 Anderson Road, Mortdale (which currently does not form part of the child care centre) and construction of a two-storey enclosed car parking building to accommodate 21 car parking spaces, a car lift, mezzanine storage areas, two bathrooms, driveway and circulation space, landscaping and pedestrian access 4. Alterations and additions to the existing building at 38 Anderson Road, Mortdale by modifying the internal layout, internal play area and circulation, with a new connection to the proposed car park at 40 Anderson Road, Mortdale. 1. On 16 November 2023, prior to this hearing, leave was granted by the Court for the Applicant to amend this modification application. As a result of these amendments, the Parties jointly submit that all issues of merit have been resolved. The remaining issues in dispute in this hearing are both matters of jurisdiction of which I must be satisfied. They are: 1. Whether the application as modified will result in a development that is substantially the same as the development for which consent was originally granted (the 'substantially the same' test), and 2. Whether the proposed construction of the car park at 40 Anderson Road is a prohibited use. 1. Section 4.55(2)(a) of the EPA Act requires me to be satisfied: (a)…that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all) 1. For the following reasons, I find that the proposed development as modified does not meet this test and will not be substantially the same as the development for which consent was originally granted. In forming this view, I have considered the joint report (Ex 2) and addendum joint reports (Exs 3 and 11) of the planning experts, and the written and oral submissions of the parties. These submissions are based on the following facts. 2. The site is situated at a zone interface. Pursuant to the Georges River Local Environmental Plan 2021 (GRLEP), the lots to the west at 38 and 40 Anderson Road are currently zoned E4 General Industrial, and the lot to the east at 36 Anderson Road is zoned R2 Low Density Residential. 3. The land use tables for these respective zones are as follows: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To promote a high standard of urban design and built form that enhances the local character of the suburb and achieves a high level of residential amenity. • To provide for housing within a landscaped setting that enhances the existing environmental character of the Georges River local government area. 2 Permitted without consent Home occupations 3 Permitted with consent Bed and breakfast accommodation; Boat sheds; Business identification signs; Car parks; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Early education and care facilities; Educational establishments; Emergency services facilities; Environmental facilities; Environmental protection works; Group homes; Health services facilities; Home businesses; Home industries; Jetties; Oyster aquaculture; Pond-based aquaculture; Public administration buildings; Recreation areas; Respite day care centres; Roads; Secondary dwellings; Semi-detached dwellings; Seniors housing; Tank-based aquaculture 4 Prohibited Any development not specified in item 2 or 3 Zone E4 General Industrial 1 Objectives of zone • To provide a range of industrial, warehouse, logistics and related land uses. • To ensure the efficient and viable use of land for industrial uses. • To minimise any adverse effect of industry on other land uses. • To encourage employment opportunities. • To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers. • To encourage a range of uses that support the repair, reuse, recycling, remanufacturing and reprocessing of waste. 2 Permitted without consent Nil 3 Permitted with consent Agricultural produce industries; Depots; Freight transport facilities; Funeral homes; Garden centres; General industries; Goods repair and reuse premises; Hardware and building supplies; Industrial retail outlets; Industrial training facilities; Light industries; Local distribution premises; Neighbourhood shops; Oyster aquaculture; Take away food and drink premises; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 4 4 Prohibited Agriculture; Air transport facilities; Airstrips; Amusement centres; Boat launching ramps; Boat sheds; Business premises; Camping grounds; Caravan parks; Cellar door premises; Cemeteries; Charter and tourism boating facilities; Community facilities; Correctional centres; Early education and care facilities; Eco-tourist facilities; Educational establishments; Entertainment facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Function centres; Health services facilities; Heavy industrial storage establishments; Heavy industries; Helipads; Highway service centres; Home businesses; Home occupations; Home occupations (sex services); Jetties; Marinas; Mooring pens; Moorings; Office premises; Open cut mining; Port facilities; Pubs; Recreation facilities (major); Registered clubs; Residential accommodation; Respite day care centres; Roadside stalls; Rural industries; Shops; Small bars; Specialised retail premises; Tourist and visitor accommodation; Water recreation structures 1. According to the dictionary of the GRLEP, "early education and care facilities" are defined as: early education and care facility means a building or place used for the education and care of children, and includes any of the following— (a) a centre-based child care facility, (b) home-based child care, (c) school-based child care. 1. From this, child care centres are permitted with consent within the R2 zone (36 Anderson Road) and prohibited within the E4 zone (38 and 40 Anderson Road). Additionally, as "car parks" are not listed in item 2 or 4 of the E4 Zone land use table, by virtue of the permission granted with consent for "any other development not specified in item 2 or 4" as stated in item 3, car parks are permitted with consent in this zone. Irrespective of this, the parties are in agreement that this car park does not constitute a standalone use but is ancillary to the child care centre at 36-38 Anderson Road. 2. Despite the above, although the land at 38 Anderson Road is zoned E4, this particular lot benefits from an existing lawful use because at the time of original consent, the proposed development was permitted in both zones with the consent of Council (Ex 9, p 568). No such benefit applies to 40 Anderson Road. 3. The following built structures exist on each lot: 1. 36-38 Anderson Road – a part single, part double storey building comprising classrooms, offices and other internal areas of an existing child care centre; an outdoor play area to the north east of the site, and 10 car parking spaces to the south east of the site. 2. 40 Anderson Road – a single-storey industrial building