Land and Environment Court New South Wales Medium Neutral Citation: The Path Investment Group Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1414 Hearing dates: Conciliation conference on 11 July 2024 Date of orders: 23 July 2024 Decision date: 23 July 2024 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away in the proceedings, in the full and final agreed sum of $10,000.00 to be paid within 28 days of these orders. (a) The Court notes that the parties agree that the full and final costs thrown away in the proceedings are: i. $8,000.00 in relation to the amendment made pursuant to the Applicant's notice of motion filed 7 June 2024 (and order 2 of the Court's orders made on 13 June 2024); and ii. $2,000.00 in relation to the amendment made pursuant to (2) above. (3) Development application number DA23/0284, as amended, for the demolition of existing structures and construction of a centre-based childcare facility for 110 children with basement parking on land identified as Lot 231 in Deposited Plan 535744 and Lot 1 in Deposited Plan 25569 and known as 27-29 Waratah Road, Engadine NSW 2233, is determined by the grant of development consent subject to the conditions included at Annexure A. Catchwords: DEVELOPMENT APPEAL – centre based child care facility – stormwater management and deferred commencement condition – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulations 1979, s 38 Sutherland Shire Local Environmental Plan 2015, cl 6.4 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, Pt 3.3, ss 3.23, 3.26 Cases Cited: Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Truslan Dumaresq Development Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1169 PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139 Texts Cited: Child Care Planning Guidelines Category: Principal judgment Parties: The Path Investment Group Pty Ltd ACN 605 341 857 (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: S Griffiths (Solicitor)(Applicant) J Amy (Solicitor)(Respondent) Solicitors: Bartier Perry (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2023/212578 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 DA23/0284 (the DA) for demolition of existing structures and construction of a centre based child care facility for 112 children (the Proposed Development) at 27-29 Waratah Road Engadine described as Lot 231 in Deposited Plan 535744 and Lot 1 in Deposited Plan 25569 (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 has been held on 11 July 2024. I presided over the conciliation conference. 3. 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. 4. 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. 5. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 6. 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 and the parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement from which I set out the summary below. 7. The DA was made with the written consent of the registered proprietor of the two lots that comprise the Site, being the Applicant to the proceedings. 8. The Site is located within an R3 Medium Density Residential zone pursuant to the Sutherland Shire Local Environmental Plan 2015 ("SSLEP") and centre based child care facilities are permissible with development consent on R3 zoned land. 9. Pursuant to cl 4.3(2) and the Height of Buildings Map of the SSLEP, a maximum height of building (HOB) development standard of 9 metres applies to the Site. The architectural plans at drawings LEC 05 Issue C2 to LEC 11 Issue C2 show that the proposed maximum HOB is approximately 8.1m which complies with the HOB development standard. 10. Pursuant to cl 4.4(2) and the Floor Space Ratio (FSR) Map of the SSLEP, a maximum FSR development standard of 0.7:1 applies to the Site. Drawing LEC 01 Issue C2 confirms that the proposed FSR is at 0.57:1 which complies with the FSR development standard. 11. Pursuant to cl 6.14(3) and the Landscape Area Map of the SSLEP, a minimum of 30% of the total site area must be provided as landscaped area. Drawing LEC 01 Issue C2 confirms that the Proposed Development complies with cl 6.14(3) of the SSLEP because a landscaped area of 36.4% of the Site is proposed. 12. Stormwater management is provided for at cl 6.4 of the SSLEP as follows: 6.4 Stormwater management (1) The objective of this clause is to minimise the impacts of urban stormwater on land to which this Plan applies and on native bushland and receiving waters. (2) (Repealed) (3) Development consent must not be granted to development on land to which this Plan applies unless the consent authority is satisfied that the development— (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and (c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact. 1. As the Proposed Development will provide a landscaped area greater than the minimum of 30% of the Site as required by cl 6.14 of the SSLEP, cl 6.4(3)(a) of the SSLEP is satisfied by maximising on water permeable surfaces. 2. The Applicant relies on amended stormwater material which includes the following: 1. An on-site detention facility for the on-site storage of stormwater; 2. Provides several options for the future provision of an inter-allotment easement (with a gravity-fed stormwater drainage system therein) for the discharge of the overflow from the on-site detention facility to a public stormwater network. 1. In this regard, although the Amended Proposal does not formally propose an easement or stormwater drainage works over any adjoining property, there is an assessment of the feasibility and off-site environmental impacts of such. This is consistent with Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349, followed in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 where Preston CJ discusses the "likely impacts ground" at [5], [24], [30] and [38] which I quoted in my recent decision PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139 regarding the need to be able to evaluate and assess matters of impact that are directly related to the development at [141] - [145]. 2. The Amended Stormwater Material has been prepared in a manner consistent with the approach accepted in Truslan Dumaresq Development Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1169 where Dixon SC said at [27] as follows: "… I am satisfied on the uncontradicted evidence of the parties' engineers, planners and landscape architects that the likely environmental impacts of the easement for stormwater disposal on the site and the adjoining properties is understood and that those impacts are satisfactory. In that circumstance, it is my considered opinion that the imposition of the Council's deferred commencement, based on the engineers agreed evidence, is appropriate and satisfactorily resolves the remaining issue in the case." 1. The agreed conditions of consent at Annexure A include a deferred commencement condition requiring firstly, registration of an inter-allotment drainage easement to allow for drainage of the Site to the street kern and gutty in Chipilly Avenue or Council's drainage system in Banksia Avenue. Secondly, the deferred commencement condition requires the stormwater drainage system to be designed in accordance with specified drawings, Australian Standards and Council's specifications. 2. Based on the above, the Proposed Development satisfies the jurisdictional prerequisites regarding stormwater management pursuant to cl 6.4(3) of the SSLEP. 3. The State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) provides specific development controls for early education and care facilities in Part 3.3 of Chapter 3. The 4. The parties have considered the applicable provisions of the Child Care Planning Guideline prepared by the NSW Department of Planning, Industry and Environment and dated 1 October 2021 as required by s 3.23 of the Transport and Infrastructure SEPP and are satisfied that the Site is suitable, and the Proposed Development is satisfactory on its merits. 5. The Proposed Development complies with the non-discretionary development standards set out in s 3.26 of the Transport and Infrastructure SEPP relating to location, indoor and outdoor space, site area and dimensions and colour of building materials or shade structures which can be discerned from the architectural drawings including LEC 03 Issue C2 and LEC 04 Issue C2. 6. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. Further, as there is a change of use of the land, a report specifying the findings of a preliminary investigation of the land concerned must be prepared and considered by the consent authority pursuant to s 4.6(2) of the Resilience and Hazards SEPP. 7. The Applicant relies on an updated Preliminary Site Investigation (PSI) dated 13 December 2023 which has been peer reviewed. The PSI concludes at page 19 that the potential for significant contamination is low, a Detailed Site Investigation is not required and that the Site can be made suitable for the proposed childcare development and land use, provided the recommendations within Section 14 are undertaken. The PSI is listed as a supporting document with which the development must be undertaken substantially in accordance with at Condition 1 of Part 2 – Conditions of Consent at Annexure A. 8. Accordingly, the Respondent, and the Court is satisfied that the Site is suitable to accommodate the Proposed Development and that no further investigation is warranted. 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 above. 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 that: 1. The Respondent has agreed to the Applicant amending the Application Class 1, pursuant to section 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to rely on the following additional and amended materials. Document Description Prepared By Date Stormwater Concept Plans for 26 Chipilly Ave Easement Option: Drawing number D1 (Revision C) – Basement Stormwater Drainage Concept Plan LMW Design Group P/L 28 June 2024 Drawing number D2 (Revision E) – Site and Ground Stormwater Drainage Concept Plan 26 June 2024 Drawing number D3 (Revision A) – SW Easement Option (26 Chipilly Ave) 28 June 2024 Drawing number D4 (Revision B) – OSD Calculation and Results Details 7 March 2022 Drawing number D5 (Revision D) – OSD Section Details 24 June 2024 Drawing number D6 (Revision B) – First Floor Stormwater Drainage Concept Plan 7 March 2022 Drawing number D7 (Revision B) – Roof Stormwater Drainage Concept Plan 7 March 2022 Document Description Prepared By Date Stormwater Concept Plans for 28 Chipilly Ave Easement Option: Drawing number D1 (Revision C) – Basement Stormwater Drainage Concept Plan LMW Design Group P/L 28 June 2024 Drawing number D2 (Revision E) – Site and Ground Stormwater Drainage Concept Plan 26 June 2024 Drawing number D3 (Revision A) – SW Easement Option (28 Chipilly Ave) 28 June 2024 Drawing number D4 (Revision B) – OSD Calculation and Results Details 7 March 2022 Drawing number D5 (Revision D) – OSD Section Details 24 June 2024 Drawing number D6 (Revision B) – First Floor Stormwater Drainage Concept Plan 7 March 2022 Drawing number D7 (Revision B) – Roof Stormwater Drainage Concept Plan 7 March 2022 Stormwater Concept Plans for 30 Chipilly Ave Easement Option: Drawing number D1 (Revision C) – Basement Stormwater Drainage Concept Plan LMW Design Group P/L 28 June 2024 Drawing number D2 (Revision E) – Site and Ground Stormwater Drainage Concept Plan 26 June 2024 Drawing number D3 (Revision A) – SW Easement Option (30 Chipilly Ave) 28 June 2024 Drawing number D4 (Revision B) – OSD Calculation and Results Details 7 March 2022 Drawing number D5 (Revision D) – OSD Section Details 24 June 2024 Document Description Prepared By Date Drawing number D6 (Revision B) – First Floor Stormwater Drainage Concept Plan 7 March 2022 Drawing number D7 (Revision B) – Roof Stormwater Drainage Concept Plan 7 March 2022 Stormwater Concept Plans for 76 Banksia Ave Option: Drawing number D1 (Revision C) – Basement Stormwater Drainage Concept Plan LMW Design Group P/L 28 June 2024 Drawing number D2 (Revision E) – Site and Ground Stormwater Drainage Concept Plan 26 June 2024 Drawing number D3 (Revision B) –Easement Drainage Plan Details (30 & 76 Banksia Ave) 7 March 2022 Drawing number D4 (Revision B) – OSD Calculation and Results Details 7 March 2022 Drawing number D5 (Revision D) – OSD Section Details 24 June 2024 Drawing number D6 (Revision B) – First Floor Stormwater Drainage Concept Plan 7 March 2022 Drawing number D7 (Revision B) – Roof Stormwater Drainage Concept Plan 7 March 2022 Planning Report on Unspecified Easement Option BMA Urban 1 July 2024 1. The Applicant provided the Court with the abovementioned amended materials associated with the amended development application (and with the consent of the Respondent) on 10 July 2024. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away in the proceedings, in the full and final agreed sum of $10,000.00 to be paid within 28 days of these orders. 1. The Court notes that the parties agree that the full and final costs thrown away in the proceedings are: 1. $8,000.00 in relation to the amendment made pursuant to the Applicant's notice of motion filed 7 June 2024 (and order 2 of the Court's orders made on 13 June 2024); and 2. $2,000.00 in relation to the amendment made pursuant to (2) above. 1. Development application number DA23/0284, as amended, for the demolition of existing structures and construction of a centre-based childcare facility for 110 children with basement parking on land identified as Lot 231 in Deposited Plan 535744 and Lot 1 in Deposited Plan 25569 and known as 27-29 Waratah Road, Engadine NSW 2233, is determined by the grant of development consent subject to the conditions included 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: 23 July 2024