All Saints Group Pty Ltd v Canterbury-Bankstown Council

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 3.42, 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, ss 23, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6 ss 2.7, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11
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, 3.25, 3.26
Canterbury Bankstown Local Environmental Plan 2023, cll 2.2, 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4, 6.7, 6.9, 6.13

Texts Cited: Canterbury Bankstown Development Control Plan 2023
Canterbury-Bankstown Community Participation Plan 2024
Department of Planning, Industry and Environment, Child Care Planning Guideline (September 2021)

Category: Principal judgment

Parties: All Saints Group Pty Ltd (First Applicant)
Arquero Architects Pty Ltd (Second Applicant)
Canterbury-Bankstown Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicants)
M Bonnano (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicants)
Canterbury-Bankstown Council (Respondent)

File Number(s): 2024/207833

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 and s 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No DA-1694/2023 (the DA) for the demolition of existing buildings, driveways and paved areas, the removal of identified trees, and the construction of a two-storey 100-place centre based child care facility with basement parking, landscaping and related structures at 53-55 Alma Road Padstow NSW 2211 (legally known as Lot 1 and Lot 2 in Deposited Plan 20798) (the site).

2. The DA was lodged with the Respondent on 16 January 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 19 November 2024. I presided over the conciliation conference, which began with an on-site view. 24 submissions had been made in response to the notification of the DA. A number of the submitters attended the s 34 conciliation conference and six submitters made statements to the Court.

4. The s 34 conciliation conference was adjourned to 11 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 February 2025, with amended plans (the amended DA) as agreed between the parties filed with the Court on 10 February 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

7. The changes made to the DA (as advised by the parties) include:

8. Reduction in number of child care places from 100 to 96;

9. Changes to the proposed development and the Plan of Management to minimise any negative impacts of the proposal on the local traffic network;

10. Reduction in the built form, lowering the basement slightly, to minimise impacts on adjoining neighbours and to amend the basement layout for more efficient use; and

11. Amendment of landscape plans to better utilise the space for use by the children and to provide for additional areas of deep soil landscaping.

12. A late submission was forwarded by the Respondent to the Court on 25 March 2025, relating to the future operation of the proposed child care centre. The parties did not seek to make any changes to the s 34 agreement as a result of this submission.

13. 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.

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

15. 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

12. The parties advise that owner’s consent has been provided in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021.

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

13. The DA was exhibited between 31 January 2024 to 20 February 2024. 24 submissions were received in response to the notification of the DA.

14. The parties agree the proposed development (as amended) has taken into account the issues raised in the submissions received by the Respondent.

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 R2 Low 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 R2 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 R2 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 on the site is 9 metres. The parties advise that the amended DA is below the maximum building height of 9 metres;
5. Clause 4.4 of the LEP applies to the site and prescribes the maximum floor space ratio (FSR) of 0.5:1. However, cl 4.4(2B) limits the FSR to 0.4:1 for development of non-residential uses in an R2 zone. The parties advise that the proposed development as amended complies with the FSR of 0.4:1;
6. Pursuant to cl 5.10 of the LEP, the parties advise that the site is not listed as a heritage item and is not within a heritage conservation area;
7. Pursuant to cl 5.21 of the LEP, the parties advise the site is not located within an area identified in the Flood Planning Area on the Flood Planning Map in the LEP;
8. Pursuant to cl 6.1 of the LEP, the parties advise that the site is identified as being within the Class 5 Acid Sulfate Soils area. The Acid Sulfate Soils Management Plan prepared by Geotechnical Consultants Australia dated 18 June 2024 (the ASSMP) supports the proposed development. The ASSMP makes recommendations which are incorporated into the conditions of consent. The parties agree that the Court can be satisfied that cl 6.1 is satisfied;
9. Clause 6.2 of the LEP sets out the matters that the consent authority is required to consider before granted 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:

(a) The matters arising in cl 6.2(3) have been considered in the Geotechnical Investigation Report prepared by Geotechnical Consultants Australia dated 19 July 2024 (the Geotechnical Report). The Geotechnical Report provides the necessary information to allow the Respondent to consider the matters under cl 6.2(3) of the CBLEP; (b) The amended DA has changed slightly since the preparation of the Geotechnical Report, however those changes do not affect the conclusions and recommendations of the Geotechnical Report; and (c) The Court can be satisfied in respect of earthworks and that the matters raised in cl 6.2(3) of the LEP have been considered and that the DA is suitable subject to appropriate conditions agreed between the parties;

10. Clause 6.3 of the LEP relates to stormwater management and water sensitive urban design. The parties advise that:

(a) An amended stormwater plan was prepared to reflect the amended architectural plans and amended landscape plan and are designed to satisfy each of the matters raised in cl 6.3(3) of the LEP as well as the matters raised in Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) (refer to pars [18]-[20] below); and (b) The Court can be satisfied that this clause has been satisfied;

11. Clause 6.4 of the LEP relates to Biodiversity. The parties advise that the site is not identified as a biodiversity site on the Biodiversity Map in the LEP;
12. Clause 6.7 of the LEP relates to aircraft noise. The parties advise that the site is not identified on the Bankstown airport or Sydney airport ANEF maps;
13. Clause 6.9 of the LEP relates to essential services. The parties advise that the site has a supply of water, electricity and sewerage as it is a longstanding site used for residential purposes and the parties agree as follows:

(a) Suitable stormwater management is proposed to be provided; (b) A waste management plan has been prepared, and this is included in the plan of management for the facility; and (c) Suitable vehicular access is proposed subject to management pursuant to the conditions of consent and the plan of management;

14. Clause 6.13 relates to special provisions for vehicular access for centre-based child care centres, and the parties advise that:

(a) The development is not located on a classified road or on a cul-de-sac; (b) The road pavement width of Alma Road is greater than 10m in width and complies with the standard for the portion of the site which contains the vehicular access; (c) The parties agree that the Court can be satisfied that this provision has been satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

18. Chapter 2 of the Biodiversity SEPP relates to vegetation in non-rural areas. The parties agree that the proposed tree removal and replacement as proposed in the amended landscape plan satisfies the objectives of this clause, subject to the conditions of consent.

19. The parties advise that the need for a permit pursuant to Ch 2 of the Biodiversity SEPP is not required where development consent under Part 4 of the EPA Act is obtained, for the following reasons:

20. Section 2.7(1) of the Biodiversity SEPP provides: “(1) 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

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

22. Chapter 6 of the Biodiversity SEPP applies to the proposed development as the site is located within the Georges River Catchment. The Biodiversity SEPP seeks to manage and promote integrated catchment management policies. The parties advise that Court can be satisfied that:

23. the stormwater plans for the proposed development ensure that:

(a) the effect on the quality of water entering a natural waterbody will be neutral or beneficial, and in all likelihood beneficial noting the existing lack of filtration and other current day mechanisms on the site; and (b) the impact on water flow in a natural waterbody will be minimised (s 6.6(2) of the Biodiversity SEPP);

2. the proposed development:

(a) keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; (b) will not have a direct, indirect or cumulative adverse impact on aquatic reserves; (c) minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and (d) minimises any adverse impact on wetlands (s 6.7 of the Biodiversity SEPP);

3. The proposed development is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8 of the Biodiversity SEPP);
4. The proposed development does not affect public access to and from natural waterbodies (s 6.9 of the Biodiversity SEPP);
5. the proposed development is not likely to have an adverse environmental impact on any adjacent local government area (s. 6.10 of the Biodiversity SEPP); and
6. the proposed development is not located on land within 100m of a natural waterbody in a regulated catchment (s 6.11 of the Biodiversity SEPP).

State Environmental Planning Policy (Resilience and Hazards) 2021

21. 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; and the parties advise that the Court can be satisfied that consent can be granted because:

22. The Applicant has provided a Detailed Site Investigation of the site (DSI) dated 13 June 2024 and Remedial Action Plan (RAP) dated 20 November 2023 (both reports prepared by Geotechnical Consultants Australia (GCS);

23. The DSI outlines that the site can be made suitable for the purpose of the proposed use as a child care facility subject to the recommendations made at section 16 of the DSI;

24. The RAP outlines the method by which the site can be made suitable;

25. The Applicant engaged Old Maple Pty Ltd to undertake a review of the DSI. This report dated 17 June 2024 generally supports the conclusions of the DSI and concludes that it was prepared in accordance with the EPA NSW reporting guidelines for Detailed Site Investigations.

26. 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 (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 regulations 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. The parties advise that:

26. The proposed development as amended is for a total of 96 children. This requires 312m2 of unencumbered internal space and 672m2 of unencumbered outdoor space. The proposed development as amended provides for 319.1m2 of unencumbered internal space and 675.2m2 unencumbered outdoor space and thus complies with the Education Regulation; and

27. On the basis that the proposed development as amended complies with the minimum unencumbered indoor and outdoor spaces, concurrence from the Regulatory Authority is not required.

28. 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. The parties advise that in respect of s 3.23, the Court can be satisfied that adequate consideration has been given to the NSW Childcare Planning Guideline dated September 2021 and note that special consideration was given to those provisions relating to the amenity of the indoor and outdoor spaces including the rearrangement of those spaces to deal with traffic noise, the provision of greater building separation from the neighbouring properties and the provision of buffer and other planting.

29. Section 3.25 of the Transport and Infrastructure SEPP provides that development consent must not be granted for the purposes of a centre-based child care facility in Zone R2 Low Density Residential if the FSR for the building on the site of the facility exceeds 0.5:1. The parties advise that the amended DA does not have a FSR in excess of 0.4:1, thus complying with this requirement.

30. 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. The parties advise that the Court can be satisfied that all non-discretionary development standards in s 3.26 have been satisfied by the amended DA.

Canterbury-Bankstown Development Control Plan 2023

29. The Canterbury-Bankstown Development Control Plan 2023 (the DCP) applies to the site. The parties advise that the Court can be satisfied that the Amended Plans can be approved having regarding the provisions of the DCP and s 4.15(1)(a)(iii), also noting that the provisions of a development control plan made for the purposes of s 3.42(1) of the EPA Act are not, of themselves, statutory requirements.

30. 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

31. Having considered the advice of the parties provided above at [12]-[30], I am satisfied that:

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

33. 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

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

35. 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.

36. 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.

37. The Court notes:

38. 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-1694/2023 made on 3 February 2025 to rely on the documents and plans specified below (the amended development application):

39. Approved Plans

| Plan Number | Plan Name | Dated | Revision | Prepared By | | A101 | Demolition Plan | 21.01.2025 | C | Arquero | | A110 | Plan – Site | 21.01.2025 | C | Arquero | | A200 | Plan – Basement | 21.01.2025 | C | Arquero | | A210 | Plan – Ground Floor | 21.01.2025 | C | Arquero | | A220 | Plan – First Floor | 21.01.2025 | C | Arquero | | A230 | Plan – Roof | 21.01.2025 | C | Arquero | | A300 | Elevation – Front | 21.01.2025 | C | Arquero | | A310 | Elevation – East | 21.01.2025 | C | Arquero | | A320 | Elevation – West | 21.01.2025 | C | Arquero | | A330 | Elevation – Rear | 21.01.2025 | C | Arquero | | A360 | Streetscape Elevation | 21.01.2025 | C | Arquero | | A400 | Section B-B | 21.01.2025 | C | Arquero | | A410 | Section A-A | 21.01.2025 | C | Arquero | | A420 | Section – Outdoor Play | 21.01.2025 | C | Arquero | | A710 | Details – Driveways | 21.01.2025 | C | Arquero | | A720 | Plans – Fence Details | 21.01.2025 | C | Arquero | | A721 | Details – Fencing | 21.01.2025 | C | Arquero | | A750 | Details – Kitchen | 21.01.2025 | C | Arquero | | A900 | Schedules | 21.01.2025 | C | Arquero | | A920 | FSR | 21.01.2025 | C | Arquero | | A975 | Evacuation Plans | 21.01.2025 | C | Arquero | | A976 | Evacuation Plans | 21.01.2025 | C | Arquero | | A985 | Diagram – Indoor Storage | 21.01.2025 | C | Arquero | | A986 | Diagram – Indoor Storage | 21.01.2025 | C | Arquero | | | Waste Management Plan | October 2024 | | Garry Dickens | | Sheets 1-4 | Stormwater Plans | 26.09.2024 | F | John Romanous & Associates | | Sheets 1-4 | Landscape Plans | 26.09.2024 | Final | Tessa Rose Landscape Architect |

35. The Court orders:

36. 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 $5,000, such amount to be paid within 14 days of the date of this order.

37. The appeal is upheld.

38. Development Application No DA1694/2023 for the demolition of existing buildings, driveways, and identified trees and construction of a two-storey centre based child care facility (96 places) with basement parking, landscaping and related structures at 53-55 Alma Road Padstow NSW 2211, legally known as Lot 1 DP 20798 and Lot 2 DP 20798, is determined by the grant of consent subject to conditions included in Annexure A.

G Kullen

Acting Commissioner of the Court

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Annexure A - Amended (544319, pdf)

Amendments

05 May 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), a corrected version of the conditions of consent are uploaded as “Annexure A - Amended”.