Land and Environment Court New South Wales Medium Neutral Citation: Glanville v City of Parramatta Council [2024] NSWLEC 1059 Hearing dates: Conciliation conferences on 7 September, 4 October, 15 and 29 November 2023. Date of orders: 20 February 2024 Decision date: 20 February 2024 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, as agreed or assessed. (2) The appeal is upheld. (3) Development consent is granted to development application DA/116/2023, as amended, for the demolition of existing buildings and construction of a child care centre, at 73 Murray Farm Road Carlingford 2118, legally known as Lot 5 DP 542112, subject to the conditions of consent 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, 4.46, 8.7, 8.15, Sch 1, Div 2, s 7 Land and Environment Court Act 1979, ss 34, 39 Education and Care Services National Regulations 2011 Environmental Planning and Assessment Regulation 2021, s 38 Parramatta (former The Hills) Local Environmental Plan 2012, cll 4.3, 4.4, 7.2 Parramatta Local Environmental Plan 2023, cl 1.8A 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, 3.24, 3.25 and 3.26 Cases Cited: Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724 Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline 2021 The Hills Development Control Plan 2011 Parramatta Community Participation Plan 2022 Category: Principal judgment Parties: Joshua Glanville (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: A Gough (Solicitor) (Applicant) D Loether (Solicitor) (Respondent) Solicitors: Storey and Gough Lawyers (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2023/115894 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA /116/2023 (the DA) for the demolition and construction of a two-storey, 65 place child care centre with basement carparking on 73 Murray Farm Road Carlingford 2118, legally known as Lot 5 DP 542112 (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 7 September 2023. I presided over the conciliation conference, which began with an on-site view. There were twelve objections to the proposed development, and one objector attended the on-site view. 3. The s 34 conciliation conference was adjourned to 4 October 2023 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent, and subsequently further adjourned to 15 and 29 November 2023 to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA). 4. As the DA was refused by the Parramatta Local Planning Panel (LPP), and as there are no delegations in place from the LPP to the Council, the s 34 agreement needed to be approved by the LPP pursuant to s 8.15 of the EPA Act. The amended DA was considered by the LPP on 20 December 2023. The LPP determined to support Council's recommendation to enter into the section 34 agreement with the Applicant, subject to some changes in the conditions of consent. 5. The amended DA includes a reduction in the capacity of the proposed child care facility from 60 to 56 children and incorporates changes to the design of the development to: 1. Flip the driveway entry from the eastern side of the property; 2. Bring the basement level footprint in from the rear boundary; 3. Introduce a ramp in the front setback; 4. Drop the height of acoustic fencing from 2.1m to 1.6m on the western boundary; 5. Place the on-site stormwater detention (OSD) in one of the former car spaces in the basement; 6. Add a platform lift to ensure accessible access into the lower ground floor outdoor play area; and 7. Provide fencing around grates of the OSD. 1. The signed s 34 agreement and Annexure 'A' was filed with the Court on 22 December 2023. This decision of the parties involves the Court upholding the appeal and granting development consent to the amended DA subject to conditions. 2. 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. 3. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. 4. 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 formally lodged on 23 February 2023 by Joshua Glanville, who provided owner's consent. 2. The proposed development involves the construction of stormwater works within a public reserve owned by the Respondent (Council). Under s 39(2) of the LEC Act, the Court has the power to provide consent to the making of a development application on Council's behalf (Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724). The parties have requested that the court exercise this power. Community Participation (Sch 1, Div 2, s 7(1)) 1. The DA was exhibited between 7 and 28 March 2023 in accordance with the requirements of the Parramatta Community Participation Plan 2022. Twelve unique submissions were received in response to that notification. The parties advise that the amended DA was not re-notified under the Respondent's notification policy, as they considered that the changes reduced the environmental impact of the proposed development. Integrated Development 1. The parties advised that the amended DA does not constitute integrated development within the meaning of s 4.46 of the EPA Act. Conditions 1. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act. 2. Parramatta (former The Hills) Local Environmental Plan 2012 (LEP 2012). 3. Parramatta (former The Hills) Local Environmental Plan 2012 is the relevant local environmental planning instrument that applies to the site, as the DA was lodged prior to the gazettal of the Parramatta Local Environmental Plan 2023, which contains savings provisions at cl 1.8A which require that the amended DA be determined as the 2012 LEP had not commenced. 4. Under the 2012 LEP provisions: 1. The site is situated within Zone R2 Low Density Residential pursuant to the provisions of the LEP 2012; and 1. The proposed demolition of buildings and development for the purpose of centre-based child care centre is permissible with consent pursuant to the Land Use Table for 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 LEP 2012 the maximum height of buildings on the site is 9 metres; and 1. The building has a maximum height less than 9 metres, in compliance with this development standard. 1. Pursuant to cl 4.4 of the LEP 2012 a maximum floor space ratio (FSR) of 0.5:1 for the site; and 1. The proposed development has a FSR of 0.49:1, in compliance with this development standard. 1. The proposed development involves the carrying out of earthworks associated with the construction of a basement parking level. The matters specified in cl.7.2(3) of LEP 2012 must be considered by the Court in granting consent to the development application; and 1. The parties advise that each of the matters at cl 7.2(3) (a) – (g) have been satisfactorily addressed in the proposed development, relating to flooding; stormwater management; excavation, soil contamination and fill; effect on amenity of adjoining properties; likelihood of disturbing environmental heritage; impacts on any watercourse, water catchment or environmentally sensitive area; and mitigating the impacts of the proposed development. 1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 2. 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. 3. There is no significant vegetation on the property, however the proposed development would see the removal of a Eucalyptus microcorys, or Tallowwood located within the adjoining reserve. The parties advise that the Tallowwood has been assessed by a level 5 Arborist who confirms that the tree has significant dieback and is in the final stages of decline. The conditions of consent require the Applicant to replace this tree at a ratio of 2:1 (refer to Condition 67). State Environmental Planning Policy (Resilience and Hazards) 2021 Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 1. (Resilience and Hazards SEPP) prevents a consent authority from granting consent to the carrying out of any development on land unless: 1. It has considered whether the land is contaminated, and 2. If the land is contaminated, it is satisfied that the land is suitable in its contaminated state for the purpose of which the development is proposed to be carried out or, if the land requires remediation to make it suitable, it is satisfied that the land will be remediated before the land is used for the relevant purpose. 1. The parties advise that the historic use of the site is for residential purposes and no record exists that indicates that the site was used for a non-residential use that could have caused contamination. In accordance with s 4.6 of the Resilience and Hazard SEPP, the parties consider that the land is suitable for the proposed development of a child care centre; and 1. 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. Chapter 3 provides a planning regime for educational establishments and early education and care facilities across the State. 2. Chapter 3 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 meets the requirements of Ch 3 of the Transport and Infrastructure SEPP, including addressing compliance with Child Care Planning Guideline 2021 and Education and Care Services National Regulations 2011. The parties provided details of the proposed development's compliance with ss 3.22, 3.23, 3.24, 3.25 and 3.26 of the Transport and Infrastructure SEPP. 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 provided an Assessment Report (Annexure 'B' of the Jurisdictional Statement) which demonstrated compliance of the amended DA with the Child Care Planning Guideline 2021 (the Guidelines), and that all matters identified by the Respondent as contravening the Guidelines had been addressed in the amended DA. The Hills Development Control Plan 2012 1. The Hills Development Control Plan 2012 (DCP) applies to the site; 1. The parties submit that all contentions (which included non-compliance with the DCP) raised in the Statement of Facts and Contentions filed on 30 May 2023 have been satisfactorily addressed by the preparation of the amended DA and the agreed conditions of consent. 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 the City of Parramatta Council, as the relevant 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 DA/116/2023 made on 22 December 2023 to rely on the documents and plans specified below (the amended development application): Plan name Drawing Number Prepared by Dated Amended Architectural Plans Cover Page A000 (Rev C) Janssen Designs 17 October 2023 Calculations Page / LEP Maps A001 (Rev C) Janssen Designs 17 October 2023 Site Context Plan A002 (Rev C) Janssen Designs 17 October 2023 Demolition Plan A003 (Rev C) Janssen Designs 17 October 2023 Site Analysis Plan A004 (Rev C) Janssen Designs 17 October 2023 Site Plan A005 (Rev D) Janssen Designs 15 November 2023 Basement Floor Plan A006 (Rev C) Janssen Designs 17 October 2023 Ground Floor Plan A007 (Rev D) Janssen Designs 15 November 2023 First Floor Plan A008 (Rev C) Janssen Designs 17 October 2023 Roof Plan A009 (Rev C) Janssen Designs 17 October 2023 South & West Elevations A010 (Rev D) Janssen Designs 15 November 2023 East & North Elevations A011 (Rev D) Janssen Designs 15 November 2023 Section A012 (Rev C) Janssen Designs 17 October 2023 Shadow Diagrams A013 (Rev C) Janssen Designs 17 October 2023 Cut and Fill Diagram A014 (Rev C) Janssen Designs 17 October 2023 Kitchen, Bottle Prep Area & Laundry Details Plans A015 (Rev C) Janssen Designs 17 October 2023 Nappy Change Room – Detail Plan A016 (Rev C) Janssen Designs 17 October 2023 Kids WC – Detail Plan A017 (Rev C) Janssen Designs 17 October 2023 Colour and Finishes Schedule A018 (Rev C) Janssen Designs 17 October 2023 Landscape Plans Proposed Cover Sheet L/00, (Rev G) A Total Concept 23 November 2023 Proposed Landscape & Planting Plan – Ground Floor L/01, (Rev G) A Total Concept 23 November 2023 Proposed Landscape & Planting Plan – Level 1 L/02, (Rev G) A Total Concept 23 November 2023 Concept Materials Board L/03, (Rev F) A Total Concept 14 November 2023 Concept Materials Board L/04, (Rev F) A Total Concept 14 November 2023 Stormwater Management Plans D1 (Issue E) NY Civil Engineering 24 October 2023 Stormwater Management Plan D2 (Issue E) NY Civil Engineering 24 October 2023 Basement / Site Plan Stormwater Management Plan D3 (Issue E) NY Civil Engineering 24 October 2023 First Floor / Roof Plan WSUD Plan D4 (Issue E) NY Civil Engineering 24 October 2023 Stormwater Management Plan D5 (Issue E) NY Civil Engineering 24 October 2023 Easement Layout OSD Stormwater Details D6 (Issue E) NY Civil Engineering 24 October 2023 Sediment Control Plan D7 (Issue E) NY Civil Engineering 24 October 2023 Supporting Documentation Access Compliance Assessment Report (Ref. No.: NEW230708) New Crown Consulting 25 October 2023 Acoustic Compliance Statement Wongala Consulting Engineers 25 October 2023 Streetscape Character Analysis Brosnan & Moore 25 October 2023 Off-Street Parking Facilities Compliance Certificate Wongala Consulting Engineers 25 October 2023 Parking Assessment (Ref: TR377_0) Wongala Consulting Engineers 17 October 2023 Plan of Management (Revision 3) Brosnan & Moore 25 October 2023 Arboricultural Impact Assessment Arboreport 9 July 2023 1. The Court orders: 1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, as agreed or assessed. 2. The appeal is upheld. 3. Development consent is granted to development application DA/116/2023, as amended, for the demolition of existing buildings and construction of a child care centre, at 73 Murray Farm Road Carlingford 2118, legally known as Lot 5 DP 542112, subject to the conditions of consent 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: 20 February 2024