Abdo Holdings v Canterbury-Bankstown Council

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.46, 8.7, 8.11, 8.15, Sch 1, Div 2, s 7
Land and Environment Court Act 1979, s 34
Local Land Services Act 2013, s 60O
Education and Care Services National Regulations 2011, regs 107, 108
Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Pt 4, s 2.7
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, Pt 3.3, ss 3.22, 3.23, 3.26
Canterbury Bankstown Local Environmental Plan 2023, cll 2.2, 2.3, 2.7, 4.3, 4.4, 6.2, 6.3, 6.7, 6.9, 6.15, 6.28, 6.30

Texts Cited: Bankstown Airport Limited, Bankstown Airport Master Plan, 2019
Canterbury Bankstown Development Control Plan 2023
Canterbury Bankstown Community Participation Plan 2024
Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021

Category: Principal judgment

Parties: Abdo Holdings (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation: Counsel:
E Fleming (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)
Solicitors:
Macpherson Kelley (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s): 2024/256630

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No DA-479/2024 (the DA) for the demolition of existing structures and the construction of a two storey centre-based childcare facility for 64 children with basement car parking and 2 at-grade parking spaces at 52 Dennis Street, Lakemba, NSW, 2162 and legally identified as Lot 21 Section 3 DP 4784 (the site).

2. The DA was lodged with the Respondent on 30 May 2024 by Mr Ghazi Al Ali, as the Applicant’s agent. These proceedings were commenced by Class 1 Application filed on 12 July 2024. The Respondent filed its Statement of Facts and Contentions (SOFAC) on 5 August 2024.

3. 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 10 December 2024. I presided over the conciliation conference, which began with an on-site view. Fourteen submissions had been made in response to the notification of the DA. No submitters attended the on-site view.

4. The s 34 conciliation conference was adjourned to 23 December 2024 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. The s 34 conciliation conference was further adjourned a number of times to enable the parties to come to an agreement over amended plans for the proposed development.

5. Following a number of adjournments of the s 34 conciliation conference, the parties advised that they had reached an 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 amended DA subject to conditions.

6. A signed s 34 agreement with Annexure A was filed with the Court on 7 March 2025, with amended plans (the amended DA) as agreed between the parties, filed with the Court on 18 March 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

7. The parties advise that the amended DA now proposes the demolition of existing structures and construction of a two-storey 60 place centre based child care facility with single level basement car parking, and tree removal, landscaping, stormwater and associated site works at the site.

8. 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. 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.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows below.

Jurisdictional Matters

Owner’s consent

11. The parties advise that the Applicant as the principal and with the consent given by Mr Ghazi Al Ali has standing to commence these proceedings under s 8.7(1) of the EPA Act.

Community Participation (Sch 1, Div 2, s 7(1)) - Environmental Planning and Assessment Act 1979

12. The DA was notified for 21 days in accordance with the Canterbury Bankstown Council Community Participation Plan (Amended August 2024) from 12 June 2024 until 2 July 2024. 14 submissions were received in response to the notification of the DA.

13. The parties advise that the amended DA was not re-notified as the relevant Council assessment officer formed the opinion that the amendments will have no additional adverse environmental impact on any adjoining or nearby properties.

14. The parties advise that the Court can be satisfied that the issues raised, where appropriate, have been adequately addressed in the amended DA and agreed conditions of consent.

Integrated Development

15. The DA is not integrated development as defined under s 4.46 of the EPA Act.

Conditions

16. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Canterbury-Bankstown Local Environmental Plan 2023

17. Canterbury-Bankstown Local Environmental Plan 2023 (the LEP) is the relevant environmental planning instrument that applies to the site; and

18. The site is zoned R3 Medium Density Residential under the cl 2.2 of the LEP;

19. Pursuant to cl 2.3 centre-based childcare facilities are permissible with consent in the R3 zone; and

(a) The parties advise that to the extent that the zone objectives are relevant, the proposed development is consistent with the objectives of the R3 zone; and (b) I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out;

3. Pursuant to cl 2.7 of the LEP, demolition is permissible with consent.
4. Pursuant to cl 4.3 of the LEP, the maximum height of buildings (HoB) on the site is 8.5m. The parties advise that the development as proposed by the amended DA is located wholly below the maximum height of 8.5m and therefore complies with cl 4.3(2) of the LEP;
5. Clause 4.4 of the LEP applies to the site and prescribes a maximum floor space ratio (FSR) of 0.5:1. The parties advise that the development as proposed by the amended DA proposes a FSR of 0.39:1 and therefore complies with cl 4.4(2) of the LEP;
6. Clause 6.2 of the LEP sets out the matters that the consent authority is required to consider before granting development consent for earthworks. The consent authority must be satisfied that the proposed earthworks will not result in adverse impacts to the soil and vegetation on the site and adjoining properties. The parties advise that having regard to the supporting material provided with the amended DA, the Respondent is satisfied that the proposed development:

(a) Will not disrupt or have a detrimental effect on drainage patterns and soil stability; (b) Will not affect the likely future use or development of the land; (c) Will adopt appropriate measures to avoid, minimise or mitigate the impacts of the proposed development; and (d) Limits the extent of the proposed earthworks to excavation for the proposed basement car park, which appropriately responds to the natural topography of the site and results in an appropriate outcome when considering the nature of the development and the characteristics of the site.

7. Clause 6.3 of the LEP relates to stormwater management and water sensitive urban design. The parties advise that the Respondent is satisfied for the purposes of cl 6.3(3) of the LEP that the proposed development is designed to:

(a) Maximise the use of water permeable surfaces of the site having regard to the soil characteristics affecting onsite infiltration of water; (b) Include onsite stormwater retention for use as an alternative supply to mains water; (c) Avoid significant adverse impacts of stormwater runoff on the site, adjoining properties and infrastructure; and (d) Incorporate the water sensitive urban design principles outlined in cl 6.3(3)(e) of the LEP.

8. Clause 6.7(4) of the LEP provides that “[d]evelopment consent must not be granted to development for the purposes of…centre-based child care facilities on land near Bankstown Airport in an ANEF contour over 25”. The parties advise that the site is not identified as land near Bankstown Airport in an ANEF contour over 25 in accordance with the Noise Exposure Forecast Contour Map for Bankstown Airport contained in the Bankstown Airport Master Plan 2019 approved by the Commonwealth Minister for Infrastructure, Transport and Regional Developments on 7 November 2019. Therefore, cl 6.7(4) does not apply to the DA.
9. Pursuant to cl 6.9 (Essential services) of the LEP, the Respondent is satisfied based on the site’s locality within an established urban area that the essential services for the proposed development are available or that adequate arrangements have been made to make them available when required.
10. The parties advise that cl 6.15 (Design excellence) of the LEP does not apply to the proposed development as the amended DA proposes a new building for the purpose of a centre-based child care facility for less than 100 children at one time (cl 6.15(2)(e) of the LEP).
11. The parties advise that cl 6.28 (Restriction on development on land in Area 2) and cl 6.30 (Prohibited development in hazard area) of the LEP do not apply to the proposed development as the site is not on land identified as “Area 2” on the relevant digital Special Provisions Map for the LEP (refer cl 6.28), nor is it on land identified as “Area 1” on the relevant digital Activity Hazard Area Map for the LEP (refer cl 6.30(1) of the LEP).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

18. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) relates to vegetation in non-rural areas. The need for a permit pursuant to Ch 2 of the Biodiversity SEPP is not required where development consent under Pt 4 of the EPA Act is obtained, for the following reasons:

19. Section 2.7(1) of the Biodiversity SEPP provides: “A permit or approval to clear vegetation is not required under this Chapter if it is clearing of a kind that is authorised under the Local Land Services Act 2013, section 60O or Part 5B”; and

20. Section 60O of the Local Land Services Act 2013 authorises clearing of vegetation by a development consent under Pt 4 of the EPA Act.

21. It is noted that the site is currently occupied by a single-storey dwelling with a detached garage/outbuilding, a shed and several shrub and tree species. The amended DA is supported by an Arboricultural Impact Assessment prepared by TreeTalk Arboricultural Consulting dated December 2024. Landscape plans have been submitted with the amended DA.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out.

21. The parties advise that:

22. The amended DA is supported by a Preliminary Site Investigation report prepared by Waratah Environmental Consulting and dated 25 October 2024 (the PSI);

23. The PSI assessed that the site has been used for low density residential since at least 1943 with no significant commercial activity observed in its vicinity and no evidence of imported or disturbed soils onsite, and the site inspection carried out as part of the PSI revealed no evidence of soil contamination. Therefore, the PSI concluded that the Site is suitable for its intended land-use as a childcare centre; and

24. The Respondent is satisfied that the site is or will be made suitable for the development as proposed by the Amended DA. The agreed conditions of consent provide relevant conditions (refer to conditions of consent 71, 72, 73, 75, 76 and 77) in relation to any hazardous finds during building works proposed by the amended DA to give effect to the recommendations made by the PSI.

25. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site can be made suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

23. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (The Transport and Infrastructure SEPP) provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across the State. The provisions of Pt 3.3 of the Transport and Infrastructure SEPP are relevant to development for the purposes of early education and care facilities such as in the proposed development.

24. Section 3.22 of the Transport and Infrastructure SEPP applies to developments for the purpose of a centre-based child care facility if the floor area or outdoor space requirements do not comply with either regs 107 or 108 of the Education and Care Services National Regulations (the Education Regulation). If compliance is not reached, development consent must not be granted except with the concurrence of the Regulatory Authority.

25. Section 3.23 of the Transport and Infrastructure SEPP requires that the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines, before determining a development application.

26. Section 3.26(2) of the Transport and Infrastructure SEPP sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority from requiring more onerous standards for those matters, being non-discretionary development standards for the purposes of subss 4.15(2) and (3) of the EPA Act.

27. The parties advise that:

28. The development as proposed by the amended DA provides, for each child being educated and cared for by the service, at least 3.25 square metres of unencumbered indoor play space and at least 7 square metres of unencumbered outdoor play space required by regs 107 and 108 of the Education and Care Services National Regulations as demonstrated by Drawing No DA A-2031, Issue D, dated 17 February 2025; and

29. Compliance with Ch 3 is addressed in the Statement of Environmental Effects (the SEE). Assessment of the DA against the Child Care Planning Guidelines is provided in the SEE; and

30. Compliance with the Education and Care Services National Regulations is addressed in the SEE.

Canterbury-Bankstown Development Control Plan 2023

28. The Canterbury-Bankstown Development Control Plan 2023 (the DCP) applies to the site. The contentions raised by the Respondent in the SOFAC relating to non-compliance with the DCP have been resolved in the amended DA.

29. The parties agree that the amended DA can be approved taking into consideration the matters in subss 4.15(1)(b)-(e) of the EPA Act.

Conclusion

30. Having considered the advice of the parties provided above at [11]-[29], I am satisfied that:

31. The Applicant’s amended DA can be approved having regard to the matters in subss 4.15(1)(b) – (e) of the EPA Act;

32. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

33. Approval of the proposed development is in the public interest.

34. Further, 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.

35. 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.

36. The Court notes:

37. That Canterbury-Bankstown Council, as the consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application No DA-479/2024 made on 7 March 2025 to rely on the documents and plans specified below (the amended development application):

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | A-0000, Issue D | Title Page and Drawing Schedule | Ghazi Al Ali Architect | undated | | A-1102, Issue D | Demolition Plan | 17 February 2025 | | A-1150, Issue D | Streetscape Analysis | 17 February 2025 | | A-1200, Issue D | Basement Floor Plan | 17 February 2025 | | A-1201, Issue D | Ground Floor | 17 February 2025 | | A-1202, Issue D | Level 01 | 17 February 2025 | | A-1203, Issue D | Roof Plan | 17 February 2025 | | A-1301, Issue D | Elevations | 17 February 2025 | | A-1302, Issue D | Elevations | 17 February 2025 | | A-1401, Issue D | Sections | 17 February 2025 | | A-1402, Issue D | Ramp Sections | 17 February 2025 | | A-1501, Issue D | Outdoor Play Area Sections | 17 February 2025 | | A-2000, Issue D | GFA Calculations | 17 February 2025 | | A-2004, Issue D | Sleep Arrangement Plans | 17 February 2025 | | A-2011, Issue D | Solar Access Diagram 3D | 17 February 2025 | | A-2031, Issue D | Play Area Calculation Diagram | 17 February 2025 | | A-2040, Issue D | Storage Calculation | 17 February 2025 | | Landscape Plans | | 2 | DA-L101, Rev D | Landscape Plan: Ground Floor | Canvas Landscape Architects | 19 December 2024 | | DA-L102, Rev D | Landscape Plan: Level 01 | 19 December 2024 | | DA-L103, Rev D | Landscape Typical Details, Proposed Plant Schedule & Maintenance Program | 19 December 2024 | | Stormwater Plans | | 3 | SW01, Rev 06 | Cover Sheet | Australiawide Consulting Services | 4 March 2025 | | SW02, Rev 06 | Sediment Control Plan | 4 March 2025 | | SW03, Rev 06 | Stormwater Drainage-Basement Plan | 4 March 2025 | | SW04, Rev 06 | Ground Floor Plan | 4 March 2025 | | SW05, Rev 06 | Roof Plan | 4 March 2025 | | SW06, Rev 06 | Typical Details | 4 March 2025 | | SW07, Rev 06 | OSD Details & Sections | 4 March 2025 | | SW08, Rev 06 | OSD & Orifice DIA Calculation | 4 March 2025 | | SW09, Rev 06 | Retaining Wall Details | 4 March 2025 |

| Reports / documents | | 4 | Noise Impact Assessment (Report No. R240184R1, Revision 4) | Rodney Stevens Acoustics | 19 December 2024 | | 5 | National Construction Code Report | Design Right Consulting | 17 December 2024 | | 6 | Arboricultural Impact Assessment (Ref. 5565/C) | TreeTalk Arboricultural Consulting | December 2024 | | 7 | Addendum Traffic Assessment Letter in Response to SOFC (Ref: 0972r02v03) | PDC Consultants | 25 November 2024 | | 8 | Plan of Management (Revision 2) | - | 23 December 2024 | | 9 | Statement of Environmental Effects | Think Planners | 23 December 2024 | | 10 | Preliminary Site Investigation (Ref. WEC229.PSI_v1.0) | Waratah Environmental Consulting | 25 October 2024 | | 11 | Geotechnical Investigation Report (Ref. ESWN-PR-2024-2552, Revision 00) | ESWNMAN | 9 October 2024 | | 12 | Operational Waste Management Plan (Report No. 5895, Revision E) | Elephants Foot | 7 November 2024 | | 13 | Construction & Demolition Waste Management Plan (Revision C) | Elephants Foot | 22 November 2024 | | 14 | BCA Capability Statement (Ref. FEC241002, Revision 1) | FE Consulting | 14 February 2025 |

34. The Court orders:

35. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the agreed amount of $2,000, such amount to be paid within 28 days of the date of these orders.

36. The appeal is upheld.

37. Development Application No DA-479/2024, as amended, for the demolition of existing structures and construction of a two-storey 60 place centre based child care facility with single level basement car parking, and tree removal, landscaping, stormwater and associated site works on land legally described as Lot 21 Section 3 DP4784 and known as 52 Dennis Street, Lakemba NSW 2162, is determined by the grant of development consent, subject to the conditions at Annexure A.

G Kullen

Acting Commissioner of the Court

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Annexure A (551 KB, pdf)