Artmade Architectural Pty Ltd v The Hills Shire Council

Land and Environment Court (NSW)|2022-12-07

Judgment

COMMISSIONER: These proceedings, brought by the applicant under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application 1502/2022/HA (DA) by The Hills Shire Council (Council). The DA seeks consent for the removal of trees, excavation, site preparation, and construction of a two storey child care centre with basement level car parking on the land known as 198 Excelsior Avenue, Castle Hill (site).

Background

The proceedings commenced before me on 6 December 2022 as a contested hearing, and a site inspection was undertaken on that day, commencing at 9.30am, at which I heard objecting submissions from a number of local residents.
Soon after the hearing commenced in Court, the parties advised that an agreement had been reached in regard to the terms of a decision in the appeal and that they intended to file a formalised agreement, imminently. The agreement involved certain amendments to the application to that formally before the Court at that point. The parties sought that the matter be listed for a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). With this turn of events, I adjourned the hearing proceedings and soon after, in accordance with the request of the parties to the appeal, the Court listed the matter for a conciliation conference, to be held on the morning of 7 December 2022. The Chief Judge appointed me to preside at the conciliation conference, and this judgement relates to the conciliation conference proceedings alone.

Agreement between the parties

A signed agreement was first filed on the morning of 7 December 2022 and the related decision particulars, which the parties had come to, were explained to me at the conciliation conference. This parties' decision would have the Court uphold the appeal and grant development consent to the DA, as amended and subject to conditions, exercising the relevant function under s 4.16 of the EPA Act. In circumstances where an agreement of this kind is reached between the parties, under s 34(3) of the LEC Act, a presiding Commissioner 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. After the conciliation conference, attention was given to a number of queries raised during the conference. A revised agreement, of similar substantive conclusions, was filed later that day.

Jurisdiction

The test as to whether the Court could have made a decision consistent with the parties' agreement (in the proper exercise of its functions) commonly involves examination of jurisdictional prerequisites (as opposed to merits considerations). The parties identified the jurisdictional prerequisites of relevance in these proceedings and how they have been satisfied in a Revised Statement of Jurisdictional Prerequisites (received by email 8 December 2022). Mindful of this advice I find as follows in regard to jurisdiction.

State Environmental Planning Policy (Resilience and Hazards) 2021

Section 4.6 requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed. A contamination assessment prepared by Ground Technologies dated 8 March 2022 assessed that, following a desktop study and preliminary laboratory analysis of soil samples, the site is suitable for development as a childcare centre and no remediation action plan is required (Class 1 Application filed with the Court on 18 May 2022 Tab 12 p 15). The Respondent is satisfied the site is low risk for contamination (Council's Bundle, Tab 3, p 13-14). The requirements of s 4.6, to consider whether the land is contaminated, have been met. No further investigation of the site is warranted on that front.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure)

Chapter 3 deals with child care facilities. Section 3.23 requires the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline. I have noted the consideration of these provisions in material filed by the applicant, and in the Council assessment report in the Council Bundle (filed with the Court on 29 November 2022). The requirements of s 3.23 have been met.
I accept the agreed advice of the parties that the proposed development provides unencumbered indoor play space per child and unencumbered outdoor space per child which complies with the requirements of regs 107 and 108 of the Education and Care Services National Regulations, and therefore the concurrence of the regulatory authority under s 3.22 is not required.
The parties agree that the development has a floor space ratio (FSR) of 0.32:1 which is less than the maximum FSR of 0.5:1 specified in s 3.25 of SEPP Transport and Infrastructure.

The Hills Shire Local Environmental Plan 2019 (THLEP)

There is no dispute that the site is zoned R2 Low Density Residential pursuant to cl 2.2 and the applicable land use tables, and the proposed development is permissible with consent within the R2 zone. I have had regard to the R2 zone objectives as required under cl 2.3(2).
I accept the following advice with respect to THLEP, as agreed by the parties:

Clause 4.3 - Height of Buildings provides for a maximum height control for the subject site of 9m. The proposal is less than the maximum height control.
Clause 4.4 - Floor Space Ratio, contains the maximum floor space controls applied under THLEP. A maximum floor space ratio has not been nominated for the site.
Clause 7.1 - Acid Sulfate Soils, does not apply to the proposal as the site is not identified as being potentially affected by Acid Sulfate Soils under the THLEP.
Clause 7.2 - Earthworks, contains the requirements surrounding the earthworks. The Respondent has considered each of the matters set out in cl 7.2(3) and is satisfied the earthworks will not have a detrimental impact. In my own consideration of cl 7.2(3) I accept this advice.

Other matters for consideration under s 4.15(1) of the EPA Act

The Hills Development Control Plan 2012 (THDCP) applies. I note that the Class 1 application works through THDCP provisions, jurisdictionally, nothing turns on this policy instrument. The requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met. I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

Consideration of submissions

The parties advise the proposal was notified in accordance with requirements. There were 55 individual submissions (of objection) made to Council in response to the notification. A copy of objecting submissions was provided in the Council Bundle. I note that I also heard directly from a number of objectors during the site inspection on 6 December 2022. Section 4.15(1)(d) of the EPA Act provides that in determining a development application a consent authority is to "take into consideration" submissions. That is to say, while in instances of agreement between the parties under s 34(3) of the LEC Act, it is not the function of the Court to evaluate the merits of any submissions, there is need for submissions to be taken into consideration.
It was evident to me that a number of the concerns raised in submissions had been clearly covered and had been relevant to some amendments to the application. It was also my view that some of the submissions, while warranting consideration, could not be of prevailing weight in this instance. In this group I would include concerns relating to the (lack of) local demand for the facility in this location (while its impacts warrant attention, an applicant is entitled to make the application on the site), and impacts on neighbour property values (Australian Turf Club v Liverpool City Council (No 2) [2014] NSWLEC 1099 at [16]). However, at the conciliation conference, I identified a number of matters raised in submissions which it was not clear to me, at that point, had been considered. The Council provided the Court with a written response to each of the matters raised on the afternoon of 8 December 2022. I outline the matters raised by me (in italics) and the response from Council with respect to each below.

Noise - Whether peak noise events (eg high-pitched, someone hurt, loud games and singing) taken into account when modelling, and if so whether reasonable addresses potential impact.

Council's expert relating to acoustic matters confirms such peak noise events were considered within the acoustic modelling. I am advised that the detail for modelling is taken from page 8 of the Association of Australasian Acoustical Consultants Guideline for Child Care Centre Acoustic Assessment Version 3.0. The modelling includes sound levels of children playing indoor and outdoor. Council's expert indicates the following factors are considered: "A number of children being vocal at any one time Type of voice (from shout to whisper) Crying children Age of the children Directionality of voice Distance between the children and receiver point or outdoor and indoor noise areas Height of the child (standing or seated) for outdoor areas Reverberation ('echo') in an indoor room or semi-enclosed areas. The sound levels of the numbers of children are calculated at 10 children at a time playing (as indicated in Table 1 below):"

Noise - whether the requirements of the management plan are impractical (eg crying children taken indoors).

The Council's expert confirmed the typical approach to handling crying children in childcare centres is as proposed in the management plan.

Noise - whether air conditioning units were appropriately taken into account in assessing acoustics.

Council's expert advised that the Acoustic Assessment and Report prepared by Day Design Pty Ltd dated 8 September 2022 (Acoustic Report) established criteria for all mechanical plant, including air conditioner noise levels. Council's expert advises that the air conditioners can meet the nominated criteria and that the Applicant will need to ensure this happens during the installation stage. I note that proposed Condition 26 requires the recommendations of the Acoustic Report to be implemented. Condition 87 then provides as follows: "The use of the premises and/or machinery equipment installed must not create offensive noise so as to interfere with the amenity of the neighbouring properties. Should an offensive noise complaint be received and verified by Council staff, an acoustic assessment is to be undertaken (by an appropriately qualified consultant) and an acoustic report is to be submitted to Council's Manager - Environment and Health for review. Any noise attenuation measures directed by Council's Manager - Environment and Health must be implemented."

Acoustic fencing in front setback.

The Council's expert is of the opinion that there will be impacts from the acoustic fence within the front set back but so long as the proposal complies with the criteria set out in the acoustic report to which he agrees is capable of compliance then the impact is acceptable.

Overlooking into neighbouring properties from full glazing

The Council's town planner has confirmed that no windows are proposed down the side boundaries of the lower floor. The only windows proposed on the upper level are in office and staff spaces and are not located in close proximity to property boundaries, and advises as follows: "The development is limited to two stories and no balconies are proposed. Proposed landscaping and fencing assists with providing privacy to and from the rear play space and rear facing windows. External play space located in the central courtyard is largely screened by proposed built form on four sides."

Whether tree near north-west corner of 200 Excelsior Avenue would be affected by driveway or other works

The Council's landscaping expert is satisfied the tree on this property will be adequately protected. Tree protection is addressed in Conditions 55 and 56 of the proposed conditions of consent.

Streetscape - including loss of tall canopy trees

The Council's town planner is satisfied with the presentation of the proposal with the landscaping experts reaching agreement in their joint landscaping expert report.

Implications of excavation on neighbouring properties.

The Council's engineering expert has confirmed these implications have been considered and are addressed in Conditions 18 and 51 of the proposed conditions of consent.

Requested retention of brick wall along the boundary

The Council's planner advises: "(the DA) has not sought consent for the removal of the brick wall and that its removal was not approved under the subdivision DA (641/2021/ZA) which did approve the demolition of other structures on site. The subject development application seeks consent for the removal of trees, excavation, site preparation and construction of a two storey childcare centre with basement car parking. The 1.8m colorbond fence is to be located alongside the wall (which is to be retained)."

Traffic - whether current traffic levels along Excelsior Avenue were considered

I note that an updated Parking and Traffic Impact Assessment was prepared by the Applicant and is attached to the filed traffic expert report. This work satisfied the Council's expert that the survey accurately reflects current traffic conditions, containing updated traffic surveys that were performed in August 2022.
With this feedback on the queries raised and otherwise, I am satisfied that consideration has been given to submissions and the requirements of s 4.15(1)(d) of the EPA Act are accommodated.

Conclusion

Based on the above details, I am satisfied that there is no jurisdictional bar and the parties' decision is one that the Court could have made in the proper exercise of its functions. Therefore, 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 make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.
In regard to the amendment of the application for which a costs order is made below relating to s 8.15(3) of the EPA Act, the Court notes: 1. Council has agreed to the Applicant amending Development Application No. 1502/2022/HA to include the plans and documents referred to in Condition 1 of Annexure A. 2. Council has lodged the amended plans and documents in Annexure A in the NSW Planning Portal on 7 December 2022 and filed the amending material with the Court.
The Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA 1502/2022/HA for the removal of trees, excavation, site preparation, and construction of a two storey childcare centre with basement level car parking on the land known as 198 Excelsior Avenue, Castle Hill NSW subject to the conditions contained in Annexure A. 3. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

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: 20 December 2022

At a glance

Court

Decision date

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Judgment (21 paragraphs)

Parties

Cases Cited (1)