Cremorne SP Pty Ltd ATF Cremorne SP Investment Trust v North Sydney Council

Catchwords: DEVELOPMENT APPLICATION – alterations and additions to a residential flat building – change of use of ground floor to a centre based childcare centre – conciliation conference – amended plans and materials – agreement between the parties – orders made

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15, Pt 4
Land and Environment Court Act 1979, s 34
Local Land Services Act 2013, s 60O, Pt 5B
Education and Care Services National Regulations 2011, regs 107, 108
Environmental Planning and Assessment Regulation 2021, ss 23, 38
North Sydney Local Environmental Plan 2013, cll 2.3, 4.3, 4.6, 5.10, 6.10
State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.7, Ch 6, ss 6.6, 6.7, 6.8
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.26

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: North Sydney Council, Community Engagement Policy, 2019
North Sydney Development Control Plan 2013
NSW Department of Planning, Industry and Environment, Child care Planning Guideline, 2021

Category: Principal judgment

Parties: Cremorne SP Pty Ltd ATF Cremorne SP Investment Trust (Applicant)
North Sydney Council (Respondent)

Representation: Counsel:
M Jaku (Solicitor) (Applicant)
K Law (Solicitor) (Respondent)
Solicitors:
Jaku Legal (Applicant)
Matthews Folbigg (Respondent)

File Number(s): 2024/301346

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of development application DA 364/2023. The development application seeks consent for alterations and additions to, and change of use of the ground floor of, an existing residential flat building for an 89-place childcare centre. The development is proposed at 40 Spofforth Street, Cremorne (SP 13019).

2. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court 1979 (LEC Act). The conciliation conference commenced on 18 February 2025. The conciliation conference was adjourned to provide the parties the opportunity to seek to resolve their dispute, however the conciliation was terminated on 31 March 2025 and the matter was listed for hearing.

3. Prior to the hearing the parties advised the Court they had reached agreement, and the Court arranged a further conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 2 May 2025. I presided over the further conciliation conference. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. This agreement meets the first condition to the exercise of power and obligation of a Commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (“McMillan”) at [51].

4. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions (McMillan at [51]). I form this state of satisfaction on the basis that:

5. The development application is lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

6. The development application was notified in accordance with the North Sydney Council Community Engagement Policy from 19 January to 9 February 2024, from 19 July to 6 August 2024 and 27 March and 10 April 2025. Submissions were received in response to the preceding periods of notification of the development application. I am satisfied that the issues raised in the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

7. Chapter 4 (Remediation of land) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the land. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. The site has previously been used for residential purposes. A Preliminary Site Investigation (PSI) Report was prepared by CEC Geotechnical Pty Ltd and forms part of the development application. The PSI concludes that the site is suitable for the proposed development in its current state, subject to some nominated conditions. Those conditions have been included in the annexed conditions of consent. I am satisfied that the site will be suitable for the purpose of the development application.

8. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the Site. Further, pursuant to s 2.7 of SEPP BC, 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, s 60O or Pt 5B. This exemption includes any clearing authorised by a development consent under Pt 4 of the EPA Act and therefore the proposed tree removal under this application is not subject to the provisions of SEPP BC. The development application proposes the removal of 38 trees. In support of the development application, the Applicant has submitted an Aboricultural Impact Assessment in which the removal of trees has been assessed and considered acceptable. Amended landscaping plans have been prepared proposing new landscaping and tree planting throughout the site to compensate for the removal of trees and to soften the built form. I accept the agreement of the parties that the extent of tree removal is acceptable.

9. Chapter 6 of SEPP BC applies to the site as it is located within the Sydney Harbour Catchment. Accordingly, the consent authority must consider and be satisfied of the matters in s 6.6(2) of SEPP BC. The parties agree, and I accept, that those matters are appropriately addressed by the stormwater management plans that accompany the development application. Appropriate stormwater management devices will be installed to improve stormwater management within the site and direct runoff to the existing stormwater network. The documents supporting the development application demonstrate that there will be no changes to stormwater quality or quantity, no impacts to groundwater, and no changes to the watertable. I am satisfied that the effect of the development on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial and the impact on water flow in a natural waterbody will be minimised.

10. As required by s 6.7 (Aquatic ecology) of the SEPP BC, I have given consideration to the matters listed at subs 6.7(2). Further, I accept the agreement of the parties that I can be satisfied of the matters in subs 6.7(3). I note that the development does not involve the removal of riparian vegetation, and the development is designed to minimise stormwater runoff thereby minimising any potential erosion or sedimentation of waterways. Further, the site is distant from any natural waterbody, coastal wetland or littoral rainforest.

11. In relation to s 6.8 (Flooding) of SEPP BC, I note that the site is not located on flood liable land.

12. Pursuant to s 3.23 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines before determining the application. The Education and Care Services National Regulation 2011 (Childcare Regulation) applies to the development application along with the Child Care Planning Guidelines issued by the NSW Department of Planning, Industry and Environment in 2021. The Statement of Environment Effects (SEE) accompanying the amended development application confirms that the proposed development complies with the non-discretionary standards for centre-based childcare facilities at s 3.26 of the Transport and Infrastructure SEPP. I accept the parties’ agreed submission that the development application complies with the relevant matters under the Child Care Planning Guidelines and the Childcare Regulation, as demonstrated by the SEE.

13. I note that pursuant to reg 107 of the Childcare Regulation, education and care service premises must have at least 3.25 square metres of unencumbered indoor space per child. The proposed development complies with this clause.

14. Further, I note that pursuant to reg 108 of the Childcare Regulation, education and care service premises must have at least 7 square metres of unencumbered outdoor space per child. The proposed development complies with this clause.

15. The North Sydney Local Environmental Plan 2013 (LEP 2013) applies to the site. The site is zoned R3 Medium Density Residential under LEP 2013. Development for the purpose of a centre based childcare centre is permitted with consent in the zone. As required by cl 2.3 of LEP 2013, in determining the development application, I have given consideration to the objectives of the zone.

16. Pursuant to cl 2.7 (Demolition) of LEP 2013, demolition is permitted with consent.

17. The works proposed in the development application will exceed the maximum building height standard of 8.5 m pursuant to cl 4.3 of LEP 2013. The works proposed that will exceed the maximum building height is the lift overrun. The development application proposes a maximum height of 13.97m from the existing ground level to the top of the lift overrun, varying the development standard. The development application is accompanied by a written request to vary the Height standard. I have read the written request prepared by Planning Ingenuity Pty Ltd, dated 20 December 2023 and in accordance with cl 4.6 of LEP 2013, I am satisfied that:

(a) The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the height control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2013). I find that the objectives of the height standard are met, notwithstanding the variation to the standard for the reasons detailed in the written request which I adopt. (b) I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standard (cl 4.6(3)(b) of LEP 2013). In particular, that the existing building itself is non-compliant and the proposed works do not increase that non-compliance, and that the addition of a lift to the existing building will improve access to all levels of the existing building, are sufficient grounds. (c) The state of satisfaction required by cl 4.6 of LEP 2013 has been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the height control.

14. Clause 5.10 (Heritage conservation) of LEP 2013 applies to the site as it is located within the Cremorne Heritage Conservation Area (HCA). Pursuant to cl 5.10(4) the Court cannot grant development consent to the development application unless it has considered the effect of the proposal on the significance of the HCA. The development application includes a Heritage Impact Assessment (HIA) prepared by GBA Heritage. The parties agree, and I accept, that in considering the impact of the development application on the significance of the HCA I can be satisfied that it is acceptable.

15. Clause 6.10 (Earthworks) of LEP 2013 applies to the development application as it proposes minor excavation. The development application includes a Geotechnical Investigation Report. Compliance with the recommendations of the Geotechnical Investigation Report forms part of the annexed conditions. In determining the development application, I have considered the matters listed at cl 6.2(3) and I am satisfied that none would warrant the refusal of the development application.

16. North Sydney Development Control Plan 2013 (DCP 2013) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2013. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

17. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (subs 34(3)(b)).

18. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

19. The Court notes that:

20. North Sydney Council, as the relevant consent authority, has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending Development Application No DA364/2023 (PAN-401695) in accordance with the following amended plans and documents:

(a) The following amended architectural plans prepared by Janssen Designs:

| Drawing No. | Drawing Name | Date | | A000, Issue E | Cover Page | 6.3.2025 | | A001, Issue D | Calculations and LEP Controls | 25.2.2025 | | A002, Issue D | Site Context Plan | 25.2.2025 | | A003, Issue D | Existing Site Plan | 25.2.2025 | | A004, Issue D | Existing Ground Floor Plan | 25.2.2025 | | A005, Issue E | Demolition Plan | 25.2.2025 | | A006, Issue D | Proposed Site Plan | 25.2.2025 | | A007, Issue G | Proposed Ground Floor Plan | 6.3.2025 | | A008, Issue D | First Floor Plan | 25.2.2025 | | A009, Issue D | Typical Upper Level Plans | 25.2.2025 | | A010, Issue D | Proposed Roof Plan | 25.2.2025 | | A011, Issue E | Acoustic Barrier Details 1 | 6.3.2025 | | A011B, Issue E | Acoustic Barrier Details 2 | 6.3.2025 | | A011C, Issue E | Acoustic Barrier Details 3 | 6.3.2025 | | A011D, Issue E | Acoustic Barrier Details – Type 1A | 6.3.2025 | | A011E, Issue E | Acoustic Barrier Details – Type 1B | 6.3.2025 | | A011F, Issue E | Acoustic Barrier Details – Type 1C | 6.3.2025 | | A011G, Issue E | Acoustic Barrier Details – Type 2 | 6.3.2025 | | A011H, Issue E | Acoustic Barrier Details – Type 2A | 6.3.2025 | | A012, Issue D | Existing & Proposed Eastern Elevations | 25.2.2025 | | A013, Issue D | Existing & Proposed Northern Elevations | 25.2.2025 | | A014, Issue D | Existing & Proposed Western Elevations | 25.2.2025 | | A015, Issue D | Existing & Proposed Southern Elevations | 25.2.2025 | | A016, Issue D | Proposed Section | 25.2.2025 | | A017, Issue D | Proposed Rear Awning Perspective Images | 25.2.2025 | | A018, Issue D | Kitchen Detail Plan | 25.2.2025 | | A019, Issue D | Colour and Finishes Schedule | 25.2.2025 | | A020, Issue D | Shadow Diagram – 9am June 21st | 25.2.2025 | | A021, Issue D | Shadow Diagram – 12 noon June 21st | 25.2.2025 | | A022, Issue D | Shadow Diagram – 3pm June 21st | 25.2.2025 | | A023, Issue D | Solar Access Diagram – 9am June 21st | 25.2.2025 | | A024, Issue D | Solar Access Diagram – 12 noon June 21st | 25.2.2025 | | A025, Issue D | Solar Access Diagram – 3pm June 21st | 25.2.2025 | | A026, Issue D | Proposed Site Coverage Diagram | 25.2.2025 |

(b) The following amended landscape plans prepared by Canvas Landscape Architects:

| Drawing No. | Drawing Name | Date | | DA-L101, Rev E | Landscape General Layout Plan: Ground Fr | 05/03/25 | | DA-L102, Rev E | Landscape Plan: Ground Floor - West | 05/03/25 | | DA-L103, Rev E | Landscape Plan: Ground Floor - East | 05/03/25 | | DA-L104, Rev C | Landscape Plan: First Floor | 17/02/25 | | DA-L105, Rev E | Landscape Typical Details, Proposed Plant Schedule & Maintenance Program | 05/03/25 | | DA-L106, Rev B | Landscape Area Calculation Plan: Ground Fr | 17/02/25 | | DA-L107, Rev A | Landscape Plan: Existing Tree Canopy Coverage | 17/02/25 | | DA-L108, Rev A | Landscape Plan: Proposed & Existing Tree Canopy Coverage | 17/02/25 |

(c) List of amendments to plans dated 25 February 2025. (d) Noise Impact Assessment prepared by Acoustic Logic dated 6 March 2025. (e) Structural Report prepared Capital Engineering Consultants dated 20 February 2025. (f) Traffic and Parking Statement prepared by PDC Consultants dated 17 January 2025. (g) Parking Statement prepared by PDC Consultants dated 17 February 2025. (h) Pedestrian Refuge and Signage Statement prepared by PDC Consultants dated 25 February 2025. (i) The following Spofforth Street Pedestrian Refuge diagrams prepared PDC Consultants:

| Drawing No. | Drawing Name | Date | | 001 | Spofforth Street Pedestrian Refuge Option 1 | 06/03/2025 | | 002 | Spofforth Street Pedestrian Refuge Option 1 | 06/03/2025 | | 003 | Spofforth Street Pedestrian Refuge Signage Plan | 12/03/2025 |

(j) BCA Design Assessment Report prepared by Design Confidence dated 18 February 2025. (k) Arboricultural Impact Assessment Report prepared by The Tree Guardian dated 7 March 2025. (l) Accessibility Statement prepared by Design Confidence dated 26 February 2025. (m) Plan of Management prepared by Dashing Ducks Pre-School dated 26 February 2025.

8. The Court orders that:

9. Leave is granted to the Applicant to amend Development Application No DA364/2023 and rely upon the amended plans and documents listed at [7] of this judgment.

10. The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of development application No DA364/2023 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

11. The appeal is upheld.

12. Development consent is granted to Development Application No DA 364/2023 for alterations and additions to, and change of use of the ground floor of, an existing residential flat building for an 89-place childcare centre at 40 Spofforth Street, Cremorne (Strata Plan 13019), subject to the conditions of consent in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (2.01 MB, pdf)

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