Betrod Pty Ltd v Canterbury-Bankstown Council

Cases Cited: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223

Texts Cited: Canterbury-Bankstown Development Control Plan 2023
Department of Planning, Industry and Environment, Child Care Planning Guideline (1 October 2021)

Category: Principal judgment

Parties: Betrod Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation: Counsel:
M Staunton (Applicant)
M Bonanno (Solicitor) (Respondent)
Solicitors:
Miller & Prince Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s): 2024/351542

Publication restriction: Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s Development Application No. DA-535/2024 (Development Application) seeking consent for the demolition of existing structures, tree removal and construction of a two-storey childcare centre with capacity for 80 children on land legally described as Lot 100 in Deposited Plan 1215533 and Lot 13 in Deposited Plan 15217 and known as 22-24 Milton Street, Bankstown (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 12 June 2024.

4. The Development Application was publicly notified between 26 June and 16 July 2024.

5. On 17 September 2024, the Development Application was refused.

6. On 23 September 2024, the applicant commenced proceedings in relation to the refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 10 March 2025 and adjourned on one occasion.

8. During the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

9. Further amended plans and documents were filed with the Court on 9 April 2025 (cited at [40(1)]). The amendments include:

10. reconfiguration and relocation of internal play areas;

11. amendment of outdoor play areas;

12. amendment of fire egress from stairs to a ramp;

13. updated architectural and landscaping plans;

14. updated plan of management;

15. updated environmental noise impact assessment;

16. updated parking and traffic impact assessment; and

17. provision of a flood risk management report,

(Amended Development Application).

10. The decision agreed upon by the parties is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

11. 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.

Jurisdictional considerations

12. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owners’ consent

13. The applicant is the registered proprietor of the Subject Land and has standing to commence these proceedings under s 8.7(1) of the EPA Act (notwithstanding that the Development Application itself was lodged by Baini Design Pty Ltd as agent for the applicant) (see Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [42] and [54] and tabs 2 and 3 of the Class 1 Application).

State Environmental Planning Policy (Resilience and Hazards) 2021

14. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) 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

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

15. The Amended Development Application includes a Preliminary Environmental Site Investigation prepared by Environmental Consulting Services dated 22 March 2024 (PSI) (see Tab 15 of the Class 1 Application). The PSI concludes that the Subject Land is unlikely to be contaminated due to its long history of residential use (supported by sampling results) and that the Subject Land can be made suitable for the proposed development provided the recommendations at p 32 of the PSI are implemented. The recommendations of the PSI have been incorporated into the Agreed Conditions (see condition 2). The parties agree, and I accept that, the requirements of s 4.6 of the RH SEPP are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. The Amended Development Application proposes the removal of trees to facilitate the proposed development.

17. The parties agree that as the Amended Development Application seeks development consent to remove the identified trees, Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) relating to permits, is not enlivened due to the BC SEPP regulating a different and separate scheme to seeking development consent under the EPA Act.

18. Chapter 6 of the BC SEPP applies to the proposed development as the Subject Land is located within the Sydney Harbour Catchment. Part 6.2 of Ch 6 sets out various matters in relation to which the consent authority must be satisfied, or must consider before granting development consent.

19. The parties submit, and I accept, that the matters for consideration and satisfaction under Pt 6.2 have been addressed in the:

20. Amended Statement of Environmental Effects prepared by Pivotal Planning dated April 2025 (SEE) (see p 17); and

21. Stormwater Plans prepared by Deboke Engineering, dated 31 March 2025.

State Environmental Planning Policy (Transport and Infrastructure) 2021

20. Section 3.23 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP) relevantly provides that before determining a development application for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline 2021 (Guidelines) in relation to the proposed development.

21. The proposed development’s compliance with the Guidelines has been addressed in the SEE (see pp 8-17).

22. In determining the Amended Development Application, I confirm that I have taken into consideration the applicable provisions of the Guidelines in relation to the proposed development for the purpose of s 3.23 of the TISEPP.

23. Section 3.26 of the TISEPP sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) provides the requirements for indoor and outdoor space.

24. The Amended Development Application provides at least 3.25m2 of unencumbered indoor play space and at least 7m2 of unencumbered outdoor play space per child (see pp 13 and 16, respectively, of the SEE) which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Services National Regulations.

25. In determining the Amended Development Application, I am satisfied that the matters outlined in Ch 3 of the TISEPP have been considered and addressed.

Canterbury-Bankstown Local Environmental Plan 2023

26. The Subject Land is zoned R4 High Density Residential under the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP). Accordingly, the proposed development, being a “centre-based child care facility” is permissible with consent in the R4 zone. I have had regard to the zone objectives which are extracted below:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To allow for increased residential density in accessible locations to maximise public transport patronage and encourage walking and cycling.

• To promote a high standard of urban design and local amenity.

27. An assessment of the proposed development against the R4 zone objectives is set out at p 20 of the SEE. The parties agree that the Amended Development Application is consistent with the objectives of the R4 zone insofar as they are relevant.

28. Clause 4.3 of the CBLEP prescribes a maximum building height of 13m for the Subject Land (Height Standard). The Amended Development Application seeks a maximum height of 9m, thus complying with the Height Standard.

29. Clause 4.4 of the CBLEP prescribes a floor space ratio of 1.1 (FSR Standard). The Amended Development Application seeks a maximum floor space ratio of 0.32:1, thus complying with the FSR Standard.

30. Pursuant to cl 6.2 of the CBLEP relating to earthworks, the consent authority must consider specified matters before granting development consent. The parties agree, and I accept, that the matters listed in cl 6.2(3) of the CBLEP have been adequately considered, having regard to the fact that:

31. the proposed excavation is consistent with the Subject Land’s context and is in accordance with the respondent’s current and proposed planning strategies;

32. the destination of any excavated material is to be in accordance with the conditions of consent (see for example, conditions 5 and 6 of the Agreed Conditions) and has been considered in the sampling analysis carried out in the PSI;

33. it is considered unlikely that excavation will lead to the disturbance of relics as the Subject Land is not known to be situated within an area of archaeological significance; and

34. the earthworks are unlikely to impact on any watercourse, drinking water catchment or environmentally sensitive areas.

35. Pursuant to cl 6.3 of the CBLEP relating to stormwater management and water sensitive urban design, the consent authority must be satisfied of specified matters before granting development consent. The parties agree, and I accept, that the matters listed in cl 6.3(3) have been addressed and satisfied, having regard to the Stormwater Plans, which include a sediment and erosion control plan and the Flood Risk Management Report prepared by Deboke Engineering Consultants dated 24 March 2025.

36. Pursuant to cl 6.9 of the CBLEP relating to essential services, before granting development consent, the consent authority must be satisfied of the matters listed in cl 6.9. I am satisfied, having regard to the existing services connected to the Subject Land and those proposed as part of the Amended Development Application, that the necessary utility services and supply are available and will be connected to the proposed development.

Canterbury-Bankstown Development Control Plan 2023

33. An assessment of relevant provisions of the Canterbury-Bankstown Development Control Plan 2023 is contained at pp 21-22 of the SEE.

Remaining matters under s 4.15(1) of the EPA Act

34. The matters listed in s 4.15(1)(b), (c) and (e) are considered generally in the SEE (see p 22) and there is no impediment to the approval of the Amended Development Application having regard to those matters.

35. In respect of s 4.15(1)(d) of the EPA Act, as set out above, the Development Application as lodged was publicly exhibited between 26 June and 16 July 2024. Two written submission was received, which raised concerns regarding the emission of unreasonable noise, traffic generation and lack of available street parking.

36. Following the amendments outlined at [9], the proposal was re-notified. One written objection was received in response to the re-notification raising issues regarding the stormwater easement and overland flood path.

37. I am satisfied that the written submissions have been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

38. 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.

39. 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.

40. The Court notes that:

41. The respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA-535/2024 in accordance with the following amended plans and documents:

| Tab | Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No. 00, Rev D | Cover Page | Baini Design | 11/3/2025 | | Drawing No. 01, Rev D | Compliance Table/Location Plan | Baini Design | 11/3/2025 | | Drawing No. 02, Rev D | Site Context Plan | Baini Design | 11/3/2025 | | Drawing No. 03, Rev D | Site Analysis Plan | Baini Design | 11/3/2025 | | Drawing No. 04, Rev D | Shadow Diagrams | Baini Design | 11/3/2025 | | Drawing No. 05, Rev D | Site Plan | Baini Design | 11/3/2025 | | Drawing No. 06, Rev D | Demolition Plan | Baini Design | 11/3/2025 | | Drawing No. 07, Rev D | Ground Floor Plan | Baini Design | 11/3/2025 | | Drawing No. 08, Rev D | First Floor Plan | Baini Design | 11/3/2025 | | Drawing No. 09, Rev D | Roof Plan | Baini Design | 11/3/2025 | | Drawing No. 10, Rev D | Elevations | Baini Design | 11/3/2025 | | Drawing No. 11, Rev D | Elevations 02 | Baini Design | 11/3/2025 | | Drawing No. 12, Rev D | Section | Baini Design | 11/3/2025 | | Drawing No. 13, Rev D | WC Details | Baini Design | 11/3/2025 | | Drawing No. 14, Rev D | Kitchen & Laundry Details | Baini Design | 11/3/2025 | | Drawing No. 15, Rev D | Typical Nappy Change Details | Baini Design | 11/3/2025 | | Drawing No. 16, Rev D | Typical Bottle Prep Detail | Baini Design | 11/3/2025 | | Drawing No. 17, Rev D | Typical Craft Bench Detail | Baini Design | 11/3/2025 | | Drawing No. 18, Rev D | Schedule of Finishes | Baini Design | 11/3/2025 | | Drawing No. 19, Rev D | Solar Access Diagram | Baini Design | 11/3/2025 | | Drawing No. 20, Rev D | Calculation Plan | Baini Design | 11/3/2025 | | Drawing No. 21, Rev D | Indoor Calc. Plan – 0-2 | Baini Design | 11/3/2025 | | Drawing No. 22, Rev D | Indoor Calc. Plan – 2-3 | Baini Design | 11/3/2025 | | Drawing No. 23, Rev D | Indoor Calc. Plan – 3-5 | Baini Design | 11/3/2025 | | Drawing No. 24, Rev D | Fencing Detail – First Floor | Baini Design | 11/3/2025 | | Drawing No. 25, Rev D | 3D Perspectives | Baini Design | 11/3/2025 | | Drawing No. 26, Rev D | Streetscape Elevation | Baini Design | 11/3/2025 | | Drawing No. 27, Rev D | Finishes Plan – Ground Floor | Baini Design | 11/3/2025 | | Drawing No. 28, Rev D | Finishes Plan – First Floor | Baini Design | 11/3/2025 | | Drawing No. 29, Rev D | Interior Solar Access + Ventilation | Baini Design | 11/3/2025 | | Drawing No. 30, Rev D | Privacy Diagram | Baini Design | 11/3/2025 | | Drawing No. 31, Rev D | Privacy Perspectives | Baini Design | 11/3/2025 | | Drawing No. 32, Rev D | Ground Floor Evacuation Diagram | Baini Design | 11/3/2025 | | Drawing No. 33, Rev D | First Floor Evacuation | Baini Design | 11/3/2025 | | Landscape Plans | | 2 | Drawing No. 01, Rev C | Landscape Concept – Basement Floor | Outside In Design Group | 21/03/2025 | | Drawing No. 02, Rev C | Landscape Concept Plan – Ground Floor | Outside In Design Group | 21/03/2025 | | Drawing No. 03, Rev C | Plant Schedule & Typical Details | Outside In Design Group | 21/03/2025 | | Drawing No. 04, Rev C | Construction and Planting Details | Outside In Design Group | 21/03/2025 | | Drawing No. 05, Rev C | Landscape Specification | Outside In Design Group | 21/03/2025 | | Engineering Plans | | 3 | Drawing No. S100, Rev 02 | Cover Sheet | Deboke Engineering Consultants | 21/3/2025 | | Drawing No. S101, Rev 02 | Stormwater Drainage Plan – Specifications Sheet | Deboke Engineering Consultants | 21/3/2025 | | Drawing No. S200, Rev 02 | Basement Plan | Deboke Engineering Consultants | 21/03/2025 | | Drawing No. S201, Rev 02 | Ground Floor Plan 1 of 2 | Deboke Engineering Consultants | 21/03/2025 | | Drawing No. S202, Rev 02 | Ground Floor Plan 2 of 2 | Deboke Engineering Consultants | 21/03/2025 | | Drawing No. S203, Rev 02 | Roof Plan | Deboke Engineering Consultants | 21/03/2025 | | Drawing No. S300, Rev 02 | Details Sheet 1 of 4 | Deboke Engineering Consultants | 21/03/2025 | | Drawing No. S301, Rev 02 | Details Sheet 2 of 6 | Deboke Engineering Consultants | 21/3/2025 | | Drawing No. S302, Rev 02 | Details Sheet 3 of 6 | Deboke Engineering Consultants | 21/3/2025 | | Drawing No. S303, Rev 02 | Details Sheet 4 of 6 | Deboke Engineering Consultants | 21/3/2025 | | Drawing No. S304, Rev 02 | Details Sheet 5 of 6 | Deboke Engineering Consultants | 21/3/2025 | | Drawing No. S305, Rev 02 | Details Sheet 6 of 6 | Deboke Engineering Consultants | 21/3/2025 | | Drawing No. S400, Rev 02 | Erosion and Sediment Control Plan | Deboke Engineering Consultants | 21/3/2025 | | Swept Path Plans | | 4 | Sheet 1 of 7 | Car Park Compliance Review – Basement Sight Distance Assessment | Stanbury Traffic Planning | 11/03/2025 | | Sheet 2 of 7 | Car Park Compliance Review – Basement Sight Distance Assessment | Stanbury Traffic Planning | 11/03/2025 | | Sheet 3 of 7 | Car Park Compliance Review – Basement Concept Layout | Stanbury Traffic Planning | 11/03/2025 | | Sheet 4 of 7 | Car Park Compliance Review – Swept Path Assessment | Stanbury Traffic Planning | 11/03/2025 | | Sheet 5 of 7 | Car Park Compliance Review – Swept Path Assessment | Stanbury Traffic Planning | 11/03/2025 | | Sheet 6 of 7 | Car Park Compliance Review – Swept Path Asessment | Stanbury Traffic Planning | 11/03/2025 | | Sheet 7 of 7 | Car Park Compliance Review – Swept Path Assessment | Stanbury Traffic Planning | 11/03/2025 | | Reports | | 5 | Amended Plan of Management | Pivotal Planning | 24 March 2025 | | 6 | Flood Risk Management Report | Deboke Engineering Consultants | 24 March 2025 | | 7 | Amended Environmental Noise Impact Assessment | Day Design Consulting Acoustic Engineers | 24 March 2025 | | 8 | Amended Parking and Traffic Assessment Report | Stanbury Traffic Planning | 21 February 2025 | | 9 | Childcare Expert Report | Early Education Solutions | 24 March 2025 | | 10 | Risk Assessment Action Plan | Lynda Campbell | 24 March 2025 | | 11 | Waste Management Plan | Dickens Solutions | 21 March 2025 | | 12 | Accessibility Compliance Report | Access Link Consulting | 19 March 2025 | | 13 | BCA Performance Requirement Report | FE Consulting Pty Limited – Consulting Fire Engineers | 24 March 2025 | | 14 | Amended Statement of Environmental Effects | Pivotal Planning | April 2025 |

2. The applicant filed the amended plans and documents outlined above with the Court on 9 April 2025.

Orders

41. The Court orders that:

42. The appeal is upheld.

43. Development consent is granted to Development Application No. DA-535/2024 (as amended), for the demolition of existing structures, tree removal and construction of a two-storey centre-based childcare facility for 80 children over a basement, on land legally described as Lot 100 in Deposited Plan 1215533 and Lot 13 in Deposited Plan 15217, commonly known as 22-24 Milton Street, Bankstown, subject to the conditions in Annexure A.

44. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amended development application, in the amount of $2,800.

N Targett

Commissioner of the Court

Annexure A (654810, pdf)

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