17 Manson Pty Ltd v Liverpool City Council [2024] NSWLEC 1401

Catchwords: DEVELOPMENT APPLICATION – centre-based child care centre – conciliation conference – agreement between the parties – orders Land and Environment Court New South Wales Medium Neutral Citation: 17 Manson Pty Ltd v Liverpool City Council [2024] NSWLEC 1401 Hearing dates: Conciliation conference 28 May 2024 Date of orders: 12 July 2024 Decision date: 12 July 2024 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) The Applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order. (2 ) The appeal is upheld. (3 ) Development consent is granted to DA-1247/2022, as amended, for the demolition of existing structures, amalgamation of two lots, tree removal, landscape works and construction of a two-storey 100 place child care centre with basement car parking, on land legally described as Lot 393 in DP222642 and 394 in DP222642 and known as 12 – 14 Coonong Street, Busby NSW 2168, subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – centre-based child care centre – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979 , s 34 Liverpool Local Environmental Plan 2008 , cll 2.3, 2.7 , 4.3, 4.4 Education and Care Services National Regulations Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 3.22, 3.23, Ch 3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: 17 Manson Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: A Johnson (Solicitor) (Applicant) D Galpin (Solicitor) (Respondent) Solicitors: Miller & Prince Lawyers (Applicant) Liverpool City Council (Respondent) File Number(s): 2024/40339 Publication restriction: Nil JUDGMENT COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application 1247/2022 for the demolition of existing structures, amalgamation of two lots, tree removal, landscape works and construction of a 100 place child care centre with basement parking ( DA ) at 12-14 Coonong Street , Busby, legally known as Lot s 393 and 394 in DP222642 ( site ). The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 8 May 2024 with subsequent material received by the Court thereafter . I have presided over the conciliation conference. The Respondent, as the relevant consent authority, has a pproved under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA- 1247/2022 in accordance with the documents listed at [ 21 ] (amended DA ). A s part of the conciliation conference process , 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 for the amended DA and granting development consent to the amended application subject to conditions of consent. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 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. Jurisdictional Prerequisites 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 explained how the jurisdictional prerequisites have been satisfied. 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 set out below. I am satisfied that owners consent accompanied the DA. The Respondent notified the DA between 24 January 2023 to 9 February 2023 . Four submissions were received. The Court and the parties heard oral submissions at the commencement of the s 34 conciliation conference. In reaching agreement, the parties have considered the concerns raised. Liverpool Local Environmental Plan 2008 ( LLEP) The subject site is zoned R 3 Medium Density Residential pursuant to the L LEP, where the proposed development is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 demolition applies, which is sought in the amended DA. Clause 4.3 h eight of buildings applies which allows a maximum height of 8.5 m. The amended A rchitectural P lans prepared by Baini Design (architectural plans) show that the amended DA is below the height limit (Dwg s 01 and 20) and a t a maximum of 7.8 m in height. Clause 4.4 floor space ratio (FSR) applies and allows a maximum of 0.5:1. The amended DA proposes a FSR of 0.48:1 as shown on the architectural plans ( D wg 01). State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) The provisions of s 4.6 of SEPP RH apply to the site. The proposed development is accompanied by a Preliminary Site Investigation R eport prepared by Environmental Consulting Services dated 12 November 2022 (PSI) . T he PSI found that the contamination identified from the presence of fill and potential asbestos from the building materials in the existing dwellings c an be managed through implementation of certain measures and that the site is suitable for the proposed sensitive use . All recommendations have been included in the conditions of consent at Annexure A. Accordingly, the parties agree, and I am satisfied, that the provisions of s 4.6 of SEPP R H have been adequately addressed. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) Section 2.48 of SEPP TI applies as the amended DA is within 2m of an underground power line. The relevant authority, Endeavour Energy , have provided conditions which have been included at Annexure A. Chapter 3 Educational establishments and child care facilities of SEPP TI applies to the proposed development. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 of SEPP TI . Based on the S tatement of Environ mental Effects prepared by Think Planners dated 6 December 2022 and agreed submissions from the parties , I have considered the provisions of ss 3.22, 3.23, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed. Conclusion 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. The Court notes that the Respondent has approved, as the relevant consent authority, under s 38(1) of the EPA Reg to the Applicant amending DA - 1247/2022 to rely upon the following amended plans and document s: Drawing No and Revision Title Prepared by Date Architectural Plans 1 01, Revision F Compliance Table, Location Plan Baini Design Pty Ltd 4 June 2024 02, Revision F Site Context Plan 03, Revision F Site Analysis Plan 04, Revision F Demolition Plan 05, Revision F 9am Shadow Diagram 06, Revision F 10am Shadow Diagram 07, Revision F 11am Shadow Diagram 08, Revision F 12PM Shadow Diagram 09, Revision F 1PM Shadow Diagram 10, Revision F 2PM Shadow Diagram 11, Revision F 3PM Shadow Diagram 12, Revision F Site Plan 13, Revision F Lower Ground Floor Plan 14, Revision F Ground Floor Plan 15, Revision F First Floor Plan 16, Revision F Roof Plan 17, Revision F Elevations 18, Revision F Elevations 19, Revision F Sections 20, Revision F 3D Height Plane 21, Revision F Kitchen and Laundry Details 22, Revision F Typical Nappy Change Detail 23 Revision F Craft Bench Details 24, Revision F Bottle Prep Detail 25, Revision F Schedule of Finishes 26, Revision F Lower Ground Calc Plan 27, Revision F Ground Floor Calc Plan 28, Revision F First Floor Calc Plan 29, Revision F Indoor Calc Plan (0 – 2) 30, Revision F Indoor Calc Plan (2 – 3) 31, Revision F Indoor Calc Plan (3 – 5) 31.1, Revision F Lower Ground FSR 31.2, Revision F Ground Floor FSR 31.3, Revision F First Floor FSR 32, Revision F Solar Study Plan – Ground Floor 33.1, Revision F Shading Diagram – Ground Floor 33.2, Revision F Shading Diagram – First Floor 34, Revision F Fencing Detail – Ground Floor 35, Revision F Fencing Detail – First Floor 35.1, Revision F Axonometric Views 36, Revision F Streetscape Elevation 37, Revision F Access Detail – Lower Ground Floor 38, Revision F Access Detail – Ground Floor 39, Revision F Access Detail – First Floor Landscaping Plans 2 229.24(22)/343’B’ Landscape Plan 1 Iscape Landscape Architects 5 June 2024 29.24(22)/344’C’ Landscape Plan 2 Stormwater Plans 3 000, Revision D Cover Sheet Plan Telford Civil 27 May 2024 101, Revision D Stormwater Concept Plan Lower Ground Level 102, Revision D Stormwater Concept Plan Ground Level 103, Revision D Stormwater Concept Plan Level 1 Sheet 3 of 3 104, Revision D Stormwater Concept Plan Roof 105, Revision D WSUD Catchment Plan 106, Revision D OSD & WSUD Details and Calculation Sheet 1 of 2 107, Revision D OSD & WSUD Details and Calculation Sheet 2 of 2 108, Revision D Sediment & Erosion Control Plan 109, Revision D Miscellaneous Details Sheet Reports 4 Summary of amendments Baini Design 6 June 2024 5 Updated Parking & Traffic Impact Assessment Stanbury Traffic Planning 16 April 2024 6 Environmental Noise Impact Assessment Day Design Pty Ltd 24 May 2024 Orders The Court orders: The Applicant is directed to file the amended development application the subj e ct of Order (3) within 7 days of the date of this Order. The appeal is upheld. Development consent is granted to DA-1247/2022, as amended, for the demolition of existing structures, amalgamation of two lots, tree removal, landscape works and construction of a two-storey 100 place child care centre with basement car parking, on land legally described as Lot 393 in DP222642 and 394 in DP222642 and known as 12 – 14 Coonong Street, Busby NSW 2168, subject to the conditions at Annexure A. S Porter Commissioner of the Court Annexure A ********** 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: 12 July 2024