Zaki v Georges River Council [2020] NSWLEC 1092

Land and Environment Court New South Wales

Medium Neutral Citation: Zaki v Georges River Council [2020] NSWLEC 1092 Hearing dates: Conciliation conference on 21 January 2020 Date of orders: 04 March 2020 Decision date: 04 March 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: See orders at [9] Catchwords: DEVELOPMENT APPLICATION – adaptive reuse – child care facility – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Kogarah Local Environmental Plan 2012 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 Category: Principal judgment Parties: Maged Zaki (Applicant) Georges River Council (Respondent) Representation: Counsel: M Staunton (Applicant) E Fleming (Solicitor) (Applicant) L Mulligan (Solicitor) (Respondent)

Solicitors: Swaab (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2019/187513 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act") against the refusal by Georges River Council ("Council") of Development Application No DA2018/0267 ("the DA"). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.15 and s 4.16 of the EPA Act. 2. The DA relates to a 1,425m2 parcel of land identified as Lot 33 DP 817864 at 200 Hurstville Road, Oatley ("the site"). The DA, as submitted to Council on 4 July 2018 sought consent for alterations and additions to an existing two storey commercial building and use of the building for a "centre based child care facility" ("child care centre") for 137 children and associated parking for 19 cars. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties. I presided over the conciliation conference, held on 21 January 2020. The conciliation conference commenced with a view of the site and hearing of one oral submission by a former tenant of the building. The submitter raised no objection to the proposal but raised certain concerns, as previously documented in her written submission to Council dated 16/8/2018. 4. Amended plans provided in advance to the Council on a without prejudice basis formed the basis of discussions at the s34 conciliation conference. At the conciliation conference the parties reached an agreement, based on the amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties filed that agreement, the amended plans and agreed conditions of consent with the Court on 22 January 2020. 5. The main changes between the plans as originally submitted to Council and the plans the subject of the s34 agreement are: 1. The ground level parking plan was reconfigured, resulting in a reduction in the number of vehicular crossings from three to two, a reduction in parking spaces on this level from 19 to 10, the provision of one waiting bay and two on street drop off / pick up spaces; and 2. a second level of parking is now provided in an above ground structure accessed via a vehicle lift. The new upper level of parking accommodates 12 parking spaces to be used only for staff; and 3. the number of children to be accommodated has been reduced from 137 to 132. 1. 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 jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraph [7] below.