Land and Environment Court New South Wales Medium Neutral Citation: Kirribilli Capital Pty Ltd v City of Parramatta Council [2024] NSWLEC 1605 Hearing dates: Conciliation conference on 16 May and 29 August 2024 Date of orders: 27 September 2024 Decision date: 27 September 2024 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The applicant is to pay the respondent's costs that have been thrown away, in the amount of $4,000, as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development consent is granted to development application DA/517/2023, as amended, for the demolition of existing structures and construction of a two-storey 86-place centre-based childcare facility with 24 on-site car parking spaces at 5 Mary Street, Northmead, NSW 2152, subject to the conditions in the annexure marked "A". Catchwords: DEVELOPMENT APPLICATION – demolition and construction of a two storey 86-place childcare centre – conciliation conference – agreement between the parties – orders made. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, s 34 Education and Care Services National Regulations 2011 Environmental Planning and Assessment Regulation 2021, s 38 Parramatta Local Environmental Plan 2023, cll 2.3, 4.3, 6.2 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 2.3, 6.1, 6.6, 6.9 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.26 Texts Cited: Department of Planning, Industry and Environment, Child care planning guideline, 2021 The Hills Development Control Plan 2012 Category: Principal judgment Parties: Kirribilli Capital Pty Ltd (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: T Poisel (Applicant) C Campbell (Solicitor) (Respondent) Solicitors: Fortis Law (Applicant) City of Parramatta (Respondent) File Number(s): 2023/341853 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Kirribilli Capital Pty Ltd (the Applicant) against the deemed refusal of development application 517/2023 by the Respondent as consent authority. The development application, as amended, seeks consent for the demolition of existing structures and construction of a two-storey 86-place centre-based childcare facility with 24 on-site car parking spaces. The development is proposed at 5 Mary Street, Northmead, NSW 2152 (Lot 43 in Deposited Plan 8884). 2. The Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 16 May 2024. I presided over the conciliation conference. The conciliation conference was adjourned to provide the parties time to give effect to their agreement in principle. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. A signed agreement was subsequently filed and is supported by a Jurisdictional Statement. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that: 1. The development application was lodged by Janssen Group Pty Ltd on 28 August 2023. Kirribilli Capital Pty Ltd engaged Janssen Design Pty Ltd to lodge the DA on behalf of the owner of the site, James Peter Maffina. The development application form confirms Mr Maffina has consent from the owner of the land to lodge the application. 2. The development application was notified by the Respondent between 6 September 2023 and 27 September 2023. Twenty-five submissions were received during the notification and advertisement period, including a petition. I accept the agreement of the parties that the amended development does not require renotification as the final form of the development has a lesser environmental impact. The development application proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or by the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act. 3. Chapter 4 (Remediation of Land) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the land. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. The Site has a historical residential use and is located within an established residential locality. Based on historical records, there is no suggestion that the Site would have been contaminated, Further, the development application includes a Detailed Site Investigation (DSI) and a Remediation Action Plan (RAP). The RAP concludes that the Site can be made suitable for the proposed development subject to the implementation and completion of matters outlined in the RAP. Compliance with the RAP is a requirement of the conditions of development consent in Annexure A. 4. Pursuant to s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Ch 2 (Vegetation in Non-Rural Areas) applies to the development application. The development application proposes the removal of nominated trees on the site. The parties agree and I accept that the development application also proposes high quality landscape embellishment works which will reduce the bulk and scale of the development, soften the built form and assist in maintaining privacy to neighbouring properties. The parties agree, and I accept, that the relevant provisions of Ch 2 of SEPP BC are met. 5. Pursuant to s 6.1 of SEPP BC, Ch 6 (Water Catchments) applies as the site is located within the Sydney Harbour Catchment. Division 2 of Ch 6 includes controls on development which a consent authority in determining the development application must give consideration to. Part 6.2 of SEPP BC provides jurisdictional perquisites to the grant of consent for development in a regulated catchment, which are set out in ss 6.6 and 6.9, including whether the development will have a neutral or beneficial effect on the quality of water entering a waterway, and whether the development will increase the amount of stormwater run-off from the Site. The parties agree, and I accept, the proposed development does not detract from the principles given the nature of the development, environmental safeguards proposed, including detailed drainage concepts and erosion and sediment controls. I find that the applicable provisions of the SEPP BC are addressed. 6. The Education and Care Services National Regulations 2011 apply to the development application along with the Child Care Planning Guidelines issued by the NSW Department of Planning, Industry and Environment in 2021. Pursuant to s 3.23 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines before determining the application. The Statement of Environment Effects (SEE) accompanying the development application confirms that the proposed development complies with the non-discretionary standards for centre-based childcare facilities at s 3.26 of the Transport and Infrastructure SEPP. I accept the parties' agreed submission that the development application complies with the relevant matters under the Child Care Planning Guidelines and the Education and Care Services National Regulations, as demonstrated by the SEE. 7. The Parramatta Local Environmental Plan 2023 (LEP 2023) applies to the site. Pursuant to LEP 2023, the site is zoned R2 Low Density Residential. Development for the purpose of 'centre based childcare facilities' is permissible with consent in the R2 zone. As required by cl 2.3 of LEP 2023, in determining the development application, I have given consideration to the objectives of the zone. 8. Pursuant to cl 4.3 (Height of buildings) in LEP 2023, and the Height of Buildings Map, a maximum height limit of 9m applies. The proposed development has a height of 8.8m and complies with the development standard. 9. Pursuant to cl 4.4 (Floor Space Ratio) in LEP 2023, and the FSR Map, an FSR of 0.5:1 applies. The proposed development has an FSR of 0.46:1 and complies with the development standard. 10. As required by cl 6.2 (Earthworks) of LEP 2023, in determining the development application, I have considered the matters listed at subcl (3). In considering those matters I am assisted by a SEE and the architectural plans which confirm the scope of excavation works. I am satisfied that the earthworks proposed in the development application will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. 11. The Hills Development Control Plan 2012 applies to the site. The SEE filed with the application details the compliance of the proposed development with DCP 2012. In determining the development application, I have considered the provisions of the development control plan pursuant to s 4.15(1) of the EPA Act. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act in s 34(3)(b) also requires me to "set out in writing the terms of the decision". 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. The Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No DA/517/2023 in accordance with the following amended plans (Amended Development Application) which were filed with the Court on 13 September 2024: No Document Ref No. Prepared by Rev Date 1. Architectural Plans Cover Page A000 Janssen Designs C 21 May 2024 Calculations Page/LEP Maps A001 Janssen Designs C 21 May 2024 Site Context Plan A002 Janssen Designs C 21 May 2024 Demolition Plan A003 Janssen Designs C 21 May 2024 Site Analysis Plan A004 Janssen Designs C 21 May 2024 Lower Ground Floor Plan A005 Janssen Designs C 21 May 2024 Upper Ground Floor Plan A006 Janssen Designs C 21 May 2024 First Floor Plan A007 Janssen Designs C 21 May 2024 Roof Plan A008 Janssen Designs C 21 May 2024 South (Streetscape) & East Elevations A009 Janssen Designs C 21 May 2024 North & West Elevations A010 Janssen Designs C 21 May 2024 Section A011 Janssen Designs C 21 May 2024 Shadow Diagram – 9am June 21st A014 Janssen Designs C 21 May 2024 Shadow Diagram – 12pm June 21st A015 Janssen Designs C 21 May 2024 Shadow Diagram – 3pm June 21st A016 Janssen Designs C 21 May 2024 Cut and Fill Diagram A017 Janssen Designs C 21 May 2024 Emergency Evacuation Diagram – Lower Ground Floor Plan A018 Janssen Designs C 21 May 2024 Emergency Evacuation Diagram – Upper Ground Floor Plan A019 Janssen Designs C 21 May 2024 Emergency Evacuation Diagram – First Floor Plan A020 Janssen Designs C 21 May 2024 Covered Outdoor Play Area Diagram A021 Janssen Designs C 21 May 2024 GFA Calculation Diagram – Lower Ground Floor Plan A022 Janssen Designs C 21 May 2024 GFA Calculation Diagram – Upper Ground Floor Plan A023 Janssen Designs C 21 May 2024 GFA Calculation Diagram – First Floor Plan A024 Janssen Designs C 21 May 2024 Landscape Area Calculation Diagram – Lower Ground Floor Plan A025 Janssen Designs C 21 May 2024 Landscape Area Calculation Diagram – Upper Ground A026 Janssen Designs C 21 May 2024 Site Coverage Area Calculation Diagram – Lower Ground A027 Janssen Designs C 21 May 2024 Building Envelope Area Calculation Diagram – Lower Ground Floor Plan A028 Janssen Designs C 21 May 2024 Kitchen Detail Plan A029 Janssen Designs C 21 May 2024 Colour and Finishes Schedule A030 Janssen Designs C 21 May 2024 Solar Access Diagram – 8am June 21st A031 Janssen Designs C 21 May 2024 Solar Access Diagram – 9am June 21st A032 Janssen Designs C 21 May 2024 Solar Access Diagram – 10am June 21st A033 Janssen Designs C 21 May 2024 Solar Access Diagram – 11am June 21st A034 Janssen Designs C 21 May 2024 Nappy Change 1 – Elevations A035 Janssen Designs C 15 Jul 2024 Kids WC 2 – Elevations A036 Janssen Designs C 15 Jul 2024 Kids WC 3 – Elevations A037 Janssen Designs C 15 Jul 2024 38. Landscape Plans Landscape + play item layout plan: ground floor L101 Canvas C 30 May 2024 Landscape + play item layout plan: first floor L102 Canvas C 30 May 2024 Landscape typical details, proposed plant schedule & maintenance program L103 Canvas C 30 May 2024 Landscape sections: outdoor play area L201 Canvas C 30 May 2024 43. Stormwater Plans Stormwater Drainage Plans, Cover Sheet SW00 Vanguard B 30 May 2024 Drainage Plan Sheet 1 (First Floor Stormwater Plan & Ground Floor Stormwater Plan) SW01 Vanguard D 06 Jul 2024 Drainage Plan Sheet 2 (Lower Ground Stormwater Plan) SW02 Vanguard C 14 Jun 2024 Drainage Details Sheet 1 SW03 Vanguard B 30 May 2024 Drainage Details Sheet 2 SW04 Vanguard C 06 Jul 2024 Erosion & Sediment Control Plan SW05 Vanguard B 30 May 2024 Driveway Plan & Long Sections SW07 Vanguard B 30 May 2024 50. Amended Acoustic Report Day Design Pty Ltd B 31 May 2024 51. Access Report Vista Access Architects C 11 March 2024 52. Traffic Letter McLaren Traffic Engineering 02 30 May 2024 53. Detailed Site Investigation GCA 1 8 May 2024 54. Remedial Action Plan GCA 1 22 May 2024 55. Plan of Management Janssen Design 2 30 May 2024 1. The Court orders that: 1. The applicant is to pay the respondent's costs that have been thrown away, in the amount of $4,000, as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development consent is granted to development application DA/517/2023, as amended, for the demolition of existing structures and construction of a two-storey 86-place centre-based childcare facility with 24 on-site car parking spaces at 5 Mary Street, Northmead, NSW 2152, subject to the conditions in the annexure marked "A". D Dickson Commissioner of the Court ********** Annexure A Amendments 07 March 2025 - Correction to typographical error at [2] 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: 07 March 2025