Land and Environment Court New South Wales Medium Neutral Citation: Arkexpress Design Pty Ltd v The Hills Shire Council [2024] NSWLEC 1125 Hearing dates: Conciliation Conference on 14 March 2024 Date of orders: 02 April 2024 Decision date: 02 April 2024 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to Development Application 548/2023/HA for the construction and use of a Centre Based Childcare Facility for 92 children with basement carparking and landscaping at premises known as 39-43 Highbury Road, North Kellyville, subject to the conditions of consent at "Annexure A". Catchwords: DEVELOPMENT APPEAL – child care centre – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Industry and Employment) 2021 State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 5, cll 2.1, 4.3, 5.10, 6.1 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2 State Environmental Planning Policy (Transport and Infrastructure) 2021 Texts Cited: The Hills Shire Council, Community Participation Plan for Planning and Development Assessment Matters Category: Principal judgment Parties: Arkexpress Design Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) T Ward (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 2023/78254 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application 548/2023/HA for the construction of a three-storey centre-based child care facility (the Proposed Development) at 39-43 Highbury Road, North Kellyville legally described as Lots 1, 2 and 3 in DP 1277592 (the Site). 2. The hearing of the proceedings commenced on 14 March 2024 and following hearing evidence of an objector, the parties advised the Court that an agreement pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) had been signed and filed with the Court (s 34 Agreement). The hearing was adjourned and later vacated. 3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 14 March 2024. I presided over the conciliation conference. 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 5. 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. 6. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 7. 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 contained in a number of different provisions of a number of environmental planning instruments. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement and orally during the conciliation conference which I now set out as my reasons for reaching the state of satisfaction that the Court can exercise this function. 8. The Development Application was submitted with the consent, in writing, of the owners of the Site. 9. The Development Application (DA) was notified in accordance with The Hills Shire Council Community Participation Plan for Planning and Development Assessment Matters (Community Participation Plan) from 11 October 2022 to 1 November 2022 and three submissions were received. Objectors to the original DA were notified of both the s 34 conciliation conference and the hearing. The Respondent has taken into consideration those submissions, and, following the amendment of the Proposed Development pursuant to a Notice of Motion in October 2023, together with the agreed conditions of consent, the Respondent is of the opinion that, the Proposed Development is worthy of approval. The October 2023 amended DA was not notified as the scale of the development (including number of children) was reduced. This is consistent with the Community Participation Plan. 10. In relation to the traffic, parking and safety concerns raised by objectors to the Proposed Development, the parties refer to the following supporting documents which consider and address these concerns: 1. Traffic and Car Parking Impact Assessment dated 5 September 2022, filed with the Class 1 Application (Vol 2 Tab 19), in particular the conclusions and recommendations on page 11. 2. Plan of Management dated 29 February 2024, filed 13 March 2024, page 4 at part 3.1.5 titled "Parking and Traffic Management". 1. The State Environmental Planning Policy (Precincts – Central River City) 2021 (Central River City SEPP) is the relevant environmental planning instrument that applies to the Site. 2. The Site is zoned R2 Low Density Residential pursuant to cl 2.1 of the Central River City SEPP, and development for the purposes of a centre-based childcare facility is permissible within the R2 Low Density Residential Zone. 3. The Proposed Development complies with the 9m maximum height of building development standard pursuant to cl 4.3 of the Central River City SEPP as evidenced in architectural drawing A2001 Rev H. 4. The Site is not heritage listed nor is it in a conservation area and is also not adjoining or adjacent to any heritage items (cl 5.10, Central River City SEPP). 5. Endeavour Energy provided a letter dated 27 July 2023 confirming that there will be adequate electricity supply for the proposed child care centre which satisfies the requirements of cl 6.1 of the Central River City SEPP regarding Public Utility Infrastructure. A copy of that letter was filed with the Court by the Applicant on 14 March 2024. 6. Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires Council to consider whether the land is contaminated and if remediation work is required. As outlined in the Statement of Environmental Effects prepared by Urbanism Planning and Development dated 8 September 2022 and filed with the Class 1 Application, the site is part of a recent subdivision with contamination considered as part of that consent. A copy of the Phase 1 Preliminary Environmental Site Assessment prepared by Envirotech Pty Ltd dated 3 July 2017 is filed with the Class 1 Application (Vol 1 Tab 5) and at page 3 concludes that the site is suitable. 7. As identified in the Statement of Environmental Effects (SEE) at page 16, filed with the Class 1 Application at Tab 14, the requirements of State Environmental Planning Policy (Industry and Employment) 2021, have been met with regard to signage. 8. The requirements of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) have also been adequately met by the Proposed Development. The relevant clauses of the Transport and Infrastructure SEPP are set out at pages 18 to 23 of the SEE and the parties agree that the clauses are complied with by the amended application the subject of the s 34 Agreement as evidenced on the drawing A0000 Rev H Cover Sheet and Development Calculations. 9. 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 adopt the reasons given by the parties as set out in this judgment. 10. 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. Notations 1. The Court notes: 1. The Hills Shire Council, the respondent, as the relevant consent authority has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application 548/2023/HA. The applicant filed the updated architectural plans with the court on 13 March 2024. A0000 Rev H - Cover Sheet & Development Calculations 19 December 2023 ArkExpress A0001 Rev H - Existing Site & Demolition Plan 19 December 2023 ArkExpress A0002 Rev H - Proposed Site Plan 19 December 2023 ArkExpress A0003 Rev H - Proposed Cut & Fill, Waste & Site Management Plan 19 December 2023 ArkExpress A0004 Rev H - Proposed Site Analysis 19 December 2023 ArkExpress A0005 Rev H - Landscape Calculation 19 December 2023 ArkExpress A1001 Rev H - Proposed Basement Plan 19 December 2023 ArkExpress A1101 Rev H - Proposed Lower Ground Floor Plan 19 December 2023 ArkExpress A1102 Rev H - Proposed Upper Ground Floor Plan 19 December 2023 ArkExpress A1103 Rev H - Proposed First Floor Plan 19 December 2023 ArkExpress A1104 Rev H - Proposed Roof Plan 19 December 2023 ArkExpress A1105 Rev H - Outdoor Unencumbered Area Calculation 19 December 2023 ArkExpress A1107 Rev H - Shadow Diagrams 01 - Winter Solstice 19 December 2023 ArkExpress A1108 Rev H - Shadow Diagrams 02 - Winter Solstice 19 December 2023 ArkExpress A1109 Rev H - Shadow Diagrams 03 - Winter Solstice 19 December 2023 ArkExpress A2001 Rev H – Elevations 19 December 2023 ArkExpress A2002 Rev H – Elevations 2 19 December 2023 ArkExpress A2003 Rev H - Streetscape Elevations 19 December 2023 ArkExpress A3001 Rev H – Sections 19 December 2023 ArkExpress A3002 Rev H - Sections 02 - Driveway Details 19 December 2023 ArkExpress A3003 Rev H - Sections 03 - Fencing Details - Western Boundary 19 December 2023 ArkExpress A3004 Rev H - Sections 04 -Fencing Details - Northern & Southern Boundary 19 December 2023 ArkExpress A4001 Rev H Façade Details 19 December 2023 ArkExpress A4002 Rev H Facade Details 02 19 December 2023 ArkExpress A6001 Rev H - Wet Area Details 19 December 2023 ArkExpress A7001 Rev H - Perspectives & External Finishes Schedule 19 December 2023 ArkExpress A7002 Rev H - Perspectives 02 19 December 2023 ArkExpress A9001 Rev H - Window & Door Schedule 19 December 2023 ArkExpress Plan of Management 29 February Urbanism Pty Ltd 2024 Rev C Traffic Swept Path Analysis 31 January 2024 TEF Consulting Orders 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application 548/2023/HA for the construction and use of a Centre Based Childcare Facility for 92 children with basement carparking and landscaping at premises known as 39-43 Highbury Road, North Kellyville, subject to the conditions of consent at "Annexure A". E Espinosa 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: 02 April 2024