Land and Environment Court New South Wales Medium Neutral Citation: Hano Halanka Pty Ltd v Liverpool City Council [2024] NSWLEC 1553 Hearing dates: Conciliation Conference 26 July, 9, 19, 26 and 29 August 2024 Date of orders: 10 September 2024 Decision date: 10 September 2024 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The Appeal is upheld. (2) Development consent is granted to No. DA-461/2023, as amended, for the amalgamation of two separate land parcels and demolish all existing structures in-order to construct a 2 storey x 110 place 'Centre-Based Child Care Facility' with a total of 30 car parking space over a basement level, on land legally described as Lot 5 in DP238358 and Lot 6 in DP238358 and known as 33 and 35 Stewart Avenue, Hammondville, subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPEAL – centre based child care facility – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.16, 8.7 Land and Environment Court Act 1979, s 34 Education and Care Services National Regulations (2011 SI 653) Environmental Planning and Assessment Regulation 2021 ss 37, 38 Liverpool Local Environmental Plan 2008, cll 4.3, 4.4 State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Part 3.3, ss 3.22, 3.23, 3.25, 3.26 and 3.27 Category: Principal judgment Parties: Hano Halanka Pty Ltd ACN 649130576 (Applicant) Liverpool City Council (Respondent) Representation: Counsel: M Najem (Solicitor)(Applicant) J Garcia (Solicitor)(Respondent) Solicitors: St George Lawyers (Applicant) Liverpool City Council (Respondent) File Number(s): 2023/464868 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 DA-461/2023 (Development Application) seeks consent for the Demolition of existing structures, Consolidation of two lots, Construction of a centre based child care facility for 110 children with Basement Parking and Landscaping (the Proposed Development) at 33-35 Stewart Avenue Hammondville legally described as Lot 5 and 6 in DP 238358 (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 26 July, 9, 19, 26 and 29 August 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 Development Application DA-461/2023 was lodged with Liverpool Council 25 August 2023. The application was notified in accordance with the Respondent's community Engagement Strategy 2022 between 30 August 2023 to 14 September 2023. Twenty eight (28) submissions were received during the notification period. Three (3) submissions were made by way of objections during the s34 Conciliation Conference. The objectors raised the following concerns: 1. Adverse traffic and parking impacts; 2. Visual and acoustic privacy impacts; 3. Fencing impact; and 4. Constructions impacts. 1. Pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Applicant has sought to amend the DA to incorporate amended plans and documents. Pursuant to s 38 of the EPA Regulation, the Respondent (as consent authority) has agreed to the Applicant amending the DA to incorporate amended plans and documents. The parties agree that the issues raised by objectors, where appropriate, have been particularised in the SOFAC and have been adequately addressed in the Amended DA and Conditions of Consent at Annexure 'A'. 2. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 3. 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 to be the terms of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. The parties explained how the jurisdictional prerequisites have been satisfied in a joint jurisdictional note. 4. The Site is owned by the Applicant. 5. The Liverpool Local Environmental Plan 2008 (LLEP) applies to the Site which site is zoned R3 Medium Density Residential under the provisions of the LLEP The Proposed Development, while permitted with consent within the R3 Medium Density Residential zone is being proposed pursuant to the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). 6. Compliance with the LLEP is addressed generally in the Statement of Environmental Effects prepared by Think Planners dated 2 August 2023 and filed with the Class 1 Application but specific provisions are addressed below. 7. The Site is subject to a maximum height of building development standard of 8.5m pursuant to cl 4.3 of the LLEP. The height of the Proposed Development complies at 8.2m. 8. The Site is subject to a maximum Floor Space Ratio (FSR) development standards pursuant to cl 4.4 of the LLEP at 0.5:1. The total gross floor area for the Proposed Development is 702m2 therefore, the a compliant FSR of 0.41:1 is proposed. 9. There are no other relevant jurisdictional matters or development standards in the LLEP that constrains the granting of development consent. 10. The relevant provisions of the Transport and Infrastructure SEPP are at Part 3.3, ss 3.22, 3.23, 3.25, 3.26 and 3.27 with which the Proposed Development complies. The development application has addressed and complies with the applicable legislative provisions as contained within the Education and Care Services National Regulations (2011 SI 653). 11. Chapter 4 (Remediation of Land) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the Site and s 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. 12. The Amended DA is accompanied by an Addendum to the Preliminary Environmental Site Investigation dated 8 August 2024 which confirms that the Site had increased lead at additional locations above the Site Assessment Criteria and a remediation action plan would be required. The Amended DA is accompanied by a Remediation Action Plan dated 14 August 2024, which confirms that the Site could be made suitable for the proposed redevelopment of the Childcare facility by the implementation of the following recommendations: * A hazardous building material survey should be undertaken by a suitably qualified consultant prior to the demolition of buildings and structures; * A Remediation Action Plan is prepared to manage the remediation of identified lead and zinc contamination and to manage the waste material currently on the site; and * Excavated soil material generated during redevelopment activities for off-site disposal must be classified in accordance with the NSW EPA (2014) Waste Classification Guidelines and disposed of to an appropriate and licenced facility. 1. Conditions 43 and 72 of Annexure 'A' ensure that the above recommendations are implemented. 2. The parties agree that the requirements of s 4.6(1) of the Resilience and Hazard SEPP are satisfied. 3. 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. 4. 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 Respondent, as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA-461/2023 in accordance with the following amended plans (Amended Development Application): Plan Name Project No. Sheet No. Date Revision Prepared by Cover Page 23019 00 01/05/24 B Baini Design Compliance Table, Location Plan 23019 01 01/05/24 B Baini Design Site Context Plan 23019 02 01/05/24 B Baini Design Site Analysis Plan 23019 03 01/05/24 B Baini Design Shadow Diagrams 23019 04 01/05/24 B Baini Design Site Plan & Demolition 23019 05 01/05/24 B Baini Design Basement Floor Plan 23019 06 01/05/24 B Baini Design Ground Floor Plan 23019 07 01/05/24 B Baini Design First Floor Plan 23019 08 01/05/24 B Baini Design Roof Plan 23019 09 01/05/24 B Baini Design Elevations 23019 10 01/05/24 B Baini Design Elevations 23019 11 01/05/24 B Baini Design Sections 23019 12 01/05/24 B Baini Design Callout Elevations 23019 13 01/05/24 B Baini Design Kitchen and Laundry Details 23019 14 01/05/24 B Baini Design Typical Nappy Change 23019 15 01/05/24 B Baini Design Typical Bottle Prep Detail 23019 16 01/05/24 B Baini Design Typical Craft Bench Detail 23019 17 01/05/24 B Baini Design Schedule of Finishes 23019 18 01/05/24 B Baini Design Solar Access Diagrams 23019 19 01/05/24 B Baini Design Outdoor Calc. Plan - GF 23019 20 01/05/24 B Baini Design Outdoor Calc. Plan - FF 23019 21 01/05/24 B Baini Design Indoor Calc. Plan-0-2 23019 22 01/05/24 B Baini Design Indoor Calc. Plan-2-3 23019 23 01/05/24 B Baini Design Indoor Calc. Plan-3-5 (GF) 23019 24 01/05/24 B Baini Design Indoor Calc. Plan-3-5 (FF) 23019 25 01/05/24 B Baini Design Fencing Detail – Ground Floor 23019 26 01/05/24 B Baini Design Fencing Detail – First Floor 23019 27 01/05/24 B Baini Design Fencing Details 23019 28 01/05/24 B Baini Design 3D Perspectives 23019 29 01/05/24 B Baini Design Streetscape Elevation 23019 30 01/05/24 B Baini Design Accessible Details - Basement 23019 31 01/05/24 B Baini Design Accessible Details – Ground Floor 23019 32 01/05/24 B Baini Design Accessible Details – First Floor 23019 33 01/05/24 B Baini Design Cover Sheet, Notes and Legend 22798 000 20/07/2023 B Telford Civil Stormwater Concept Plan Basement Level Sheet 1 of 2 22798 101 20/07/2023 B Telford Civil Stormwater Concept Plan Basement Level Sheet 2 of 2 22798 102 20/07/2023 B Telford Civil Stormwater Concept Plan Ground Floor Plan 22798 103 20/07/2023 B Telford Civil Stormwater Concept Plan Level 1 & Roof Plan 22798 104 20/07/2023 B Telford Civil Stormwater Concept Plan WSUD Catchment Plan 22798 105 20/07/2023 B Telford Civil OSD & WSUD Details and Calculations Sheet 1 of 2 22798 106 20/07/2023 B Telford Civil OSD & WSUD Details and Calculations Sheet 2 of 2 22798 107 20/07/2023 B Telford Civil DRAINS Model and Calculation Sheets 22798 108 20/07/2023 B Telford Civil Miscellaneous Details Sheet 22798 108 20/07/2023 B Telford Civil Proposed Childcare Centre – Landscape Plan 1 08.23/019'A' One/Two 25.07.23 A iScape Landscape Architecture Proposed Childcare Centre – Landscape Plan 2 08.23/020'A' Two/Two 25.07.23 A iScape Landscape Architecture Report Name Job Number Date Revision Prepared by Arboricultural Impact Assessment F592 03 March 2023 DRAFT Creative Planning Solutions – James Hume-Grimm Parking and Traffic Impact Assessment (excluding Appendix 1 – Architectural Plans) 22-223 July 2023 - Stanbury Traffic Planning Waste Management Plan 22321 July 2023 - Dickens Solutions Pty Ltd Plan of Management – 110 Place Child Care Facility PoM: 33-35 Stewart Avenue, Hammondville 06 August 2024 Final Think Planners Pty Ltd Social Impact Comment: Child Care Facility Child Care Facility: 33-35 Stewart Avenue, Hammondville 08 May 2024 - Think Planners Pty Ltd Addendum to Preliminary Site Investigation 33-35 Stewart Avenue, Hammondville 08.08.2024 1 Environmental Consulting Services Pty Ltd Remediation Action Plan 33-35 Stewart Avenue, Hammondville NSW 2170 14.08.2024 1 Environmental Consulting Services Pty Ltd Orders: 1. The Court orders: 1. The Appeal is upheld. 2. Development consent is granted to No. DA-461/2023, as amended, for the amalgamation of two separate land parcels and demolition of all existing structures in-order to construct a 2 storey x 110 place 'Centre-Based Child Care Facility' with a total of 30 car parking spaces over a basement level, on land legally described as Lot 5 in DP238358 and Lot 6 in DP238358 and known as 33 and 35 Stewart Avenue, Hammondville, subject to the conditions at Annexure A. E Espinosa Commissioner of the Court 464868.23 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: 11 September 2024