Land and Environment Court New South Wales Medium Neutral Citation: Kostantopoulos v Georges River Council [2019] NSWLEC 1611 Hearing dates: Conciliation conference on 6 December 2019 Date of orders: 06 December 2019 Decision date: 06 December 2019 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) Leave is granted for the Applicant to rely on the amended plans and material listed in paragraph 1 of the conditions set out in Annexure A. (2) The Applicant is to pay the Respondent's costs thrown away as a result of the Applicant amending the application as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). (3) The appeal is upheld. (4) Development consent is granted to Development Application DA2018/0414 for the demolition of the existing dwelling and the construction of a single storey childcare centre facility catering for forty five (45) children and nine (9) staff members with at grade parking for 8 vehicles at 60 Park Street, Peakhurst, subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – childcare centre facility – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land Texts Cited: Child Care Planning Guideline Category: Principal judgment Parties: Costa Kostantopoulos (Applicant) Georges River Council (Respondent) Representation: Counsel: G Christmas (Solicitor) (Applicant) J Hewitt (Solicitor) (Respondent) Solicitors: Apex Planning & Environment Law (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/70803 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application lodged with Georges River Council for the demolition of a dwelling and the construction of a single storey childcare centre facility catering for 45 children and 9 staff members with at grade parking for 8 vehicles, at 60 Park Street, Peakhurst. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 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 6 December 2019. I presided over the conciliation conference. 3. At 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. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application complies with Part 4 of the Child Care Planning Guideline, and also, inter alia, makes some changes to the internal foyer area and to the walkway and car parking area so as to ensure the retention of two Syncarpia glommulifera in the front setback. The amended development application also includes an arborist method statement for the retention of those two trees and an additional three trees. 4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended development application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The development application was made with the consent in writing of the owner of the site, Steve Investments Pty Ltd. * The proposed development is for the purpose of a "centre-based child care facility", which is a use that is permissible with consent in the R2 – Low Density Residential zone in which the site is located, pursuant to the Hurstville Local Environmental Plan 2012 ("HLEP 2012"). * The proposed development complies with the applicable development standards with respect to height and floor space ratio, in accordance with cll 4.3(2) and 4.4(2) of the HLEP 2012. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Based on a Preliminary Environmental Site Assessment (report of Integral Environmental Solutions dated 12 June 2019), the site is suitable for its intended use and no further investigation of the land is required, subject to compliance with the report recommendations. 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 also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, 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 orders that: 1. Leave is granted for the Applicant to rely on the amended plans and material listed in paragraph 1 of the conditions set out in Annexure A. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the Applicant amending the application as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). 3. The appeal is upheld. 4. Development consent is granted to Development Application DA2018/0414 for the demolition of the existing dwelling and the construction of a single storey childcare centre facility catering for forty five (45) children and nine (9) staff members with at grade parking for 8 vehicles at 60 Park Street, Peakhurst, subject to the conditions set out in Annexure A. ………………………… J Gray Commissioner of the Court Annexure A (177 KB, 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: 09 December 2019