Land and Environment Court New South Wales Medium Neutral Citation: The Trustee for the Woodbury Rd Unit Trust trading as PRSM Holdings Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1127 Hearing dates: Conciliation Conference on 21 March 2019 Date of orders: 01 April 2019 Decision date: 01 April 2019 Jurisdiction: Class 1 Before: Horton C Decision: See [15] below Catchwords: DEVELOPMENT APPEAL against deemed refusal - conciliation conference - agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environment Plan 2015 Land and Environment Court Act 1979 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Child Care Planning Guideline Ku-ring-gai Contributions Plan 2010 Ku-ring-gai Development Control Plan (DCP) 2018 Category: Principal judgment Parties: The Trustee for the Woodbury Rd Unit Trust trading as PRSM Holdings Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Solicitors: G McKee, McKees Legal Solutions (Applicant) L Finn, Hones Lawyers (Respondent) File Number(s): 2018/263223 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of DA0262/18 for the demolition of existing structures, removal of 14 trees and construction of a 95 place child care centre and associated works at the property known as 318 Mona Vale Road (aka 58 Woodbury Road), St Ives. 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 was held on 21 March 2019. 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 conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 March 2019. 4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to the State Environmental Planning Policy (Infrastructure) 2007 (ISEPP), State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP (Child Care)), and State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). The parties explained to me during the conference as to how the requirements of the SEPPs have been satisfied in order to allow the Court to make the relevant orders. The site and its context 1. The site is identified as Lot 5, DP23433 and is also known as 318 Mona Vale Road, or 58 Woodbury Road, St Ives, being a corner site. The site has a total area of 2020m2 and is currently occupied by a single storey dwelling house and carport. Planning Framework 1. As the site directly adjoins Mona Vale Road, being a classified road, it is subject to the provisions of the ISEPP. Clause 101 requires that development consent must not be granted on land with a frontage to a classified road unless: (a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. 1. I am satisfied that the requirements of cl 101(2) of the ISEPP are met on the basis of the following: 1. Traffic and Parking Assessment Report, prepared by TEF Consulting; 2. Acoustic Assessment Report, prepared by Mostyn Copper Group; 3. Air Quality Assessment Report, prepared by NG Child & Associates; and 4. Amended plans remove the existing driveway crossing to Mona Vale Road as requested by the Roads and Maritime Service of NSW. 1. Clause 23 of the SEPP (Child Care) requires that a consent authority must consider the provisions of the Child Care Planning Guideline. I am satisfied, based on the submissions prepared by Minto Planning Services, that the proposal complies with the relevant Guidelines. 2. Clause 7(2) of the SEPP 55 requires a consent authority to consider a report specifying the findings of a preliminary investigation of the land concerned prior to consent being granted. I have considered the report prepared by Mostyn Copper Group which, in my view, satisfies this requirement. 3. The site is identified by the Ku-ring-gai Local Environment Plan 2015 (KLEP) as being located within the R2 Low Density zone. The objectives of the R2 zone, to which regard must be had, include: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai. 1. The KLEP provides that Centre-based child care facilities are permitted with consent. Conclusion 1. 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. 2. 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. Orders 1. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 of Annexure "A". 2. The Applicant is to pay the Respondent's costs arising under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $4,500.00. 3. The Appeal is upheld. 4. Development Application No. DA0262/2018 for demolition of existing structures and construction of 95 place child care centre and associated works with parking for 25 cars is approved subject to the conditions set out in Annexure "A". ____________________ T Horton Commissioner of the Court Annexure A (425 KB, pdf) Plans (1.45 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: 01 April 2019