Land and Environment Court New South Wales Medium Neutral Citation: MPGA Pty Ltd v Fairfield City Council [2019] NSWLEC 1094 Hearing dates: Conciliation conference on 25 January 2019 Date of orders: 07 March 2019 Decision date: 07 March 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See [9] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Fairfield Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Child Care Planning Guideline Category: Principal judgment Parties: MPGA Pty Ltd (Applicant) Fairfield City Council (Respondent) Representation: Solicitors: D Loether, Bartier Perry (Applicant) A Seton, Marsdens Law Group (Respondent) File Number(s): 2018/265500 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent's refusal of development application 352.1/2018 (DA). The DA sought consent for the demolition of the existing residential building, the use of the subject site as a centre-based child care centre for 68 children, and the construction of a single storey child care centre with associated landscaping, drainage and earth works at 1806 The Horsley Drive, Horsley Park (Lot 172 in DP 13905). 2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 25 January 2019. I presided over the conciliation conference. 3. After 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 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 how they have been satisfied. I note in particular the advice that the proposed development does not contravene any development standard in the applicable Fairfield Local Environmental Plan 2013 (LEP) or any other applicable environmental planning instrument. 5. Under cl 6.2(3) of the LEP, in regard to any development consent for earthworks the consent authority must consider the matters identified within that clause. The parties advise that these matters are addressed in the Geotechnical Report prepared by Douglas Partners dated November 2011 (submitted in support of a previous development application for a centre-based child care facility on the subject site). The extent of earthworks proposed in the previous development application is the same as that in the subject DA and therefore the geotechnical report is accepted by the Respondent as satisfactory. I have given appropriate consideration under cl 6.2(3) of the LEP and am satisfied the relevant issues are addressed. 6. Clause 23 of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP (Child Care Facilities)) provides that prior to the grant of any development consent for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline in relation to the proposed development. I am advised by the parties that the Statement of Environmental Effects lodged with the DA and the Addendum to the Statement of Environmental Effects appropriately address the relevant provisions of the Child Care Planning Guideline. I have given appropriate consideration under cl 23 of SEPP (Child Care Facilities) and am satisfied the relevant issues are addressed. 7. Clause 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), requires a consent authority to consider several matters before granting development consent. I am advised by the parties that site investigations have been undertaken and the site is not considered contaminated. I am satisfied that the preconditions in cl 7 of SEPP 55 have been met. 8. Based on the above details, 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. 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. 9. The Court orders: 1. The Applicant is granted leave to amend Development Application No. 352.1/2018 and to rely upon the following amended plans and documents: Plans Prepared by Document Reference Revision Dated Habitation Design and Interiors Architectural Plans, Project Number 16043 J101 to J116 (inclusive) J 06/02/2019 Taylor Brammer Landscape Architects Pty Ltd Landscape Plans LA00 to LA02 (inclusive) F 11/01/2019 CPM Engineering Civil Engineering Plans, Job Reference 16069-C02 Sheet 1 of 5 to Sheet 5 of 5 (inclusive) 03/02/2019 City Planning Works Addendum to the Statement of Environmental Effects February 2019 Travers Bushfire and Ecology Flora and Fauna Assessment 18BP02 11/01/2019 BGMA Pty Ltd Acoustic Impact Assessment BGMA 190102 B February 2019 CPM Engineering Engineering Design Compliance Certification 16069 05/02/2019 1. The appeal is upheld. 2. Development consent is granted to Development Application No. 352.1/2018 seeking consent for the demolition of the existing residential building, the use of the subject site as a centre-based child care centre for 68 children, and the construction of a single storey Child Care Centre with associated landscaping, drainage and earth works on the land at 1806 The Horsley Drive, Horsley Park (Lot 172 DP 13905) to the conditions of consent annexed hereto and marked "A". ………………………. Peter Walsh Commissioner of the Court Annexure A (252 KB, pdf) Plans (8.43 MB, pdf) ********** 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: 08 March 2019