These proceedings arise following the Council of the City of Sydney's deemed refusal of the applicant's development application (D/2022/199) for the construction of a two-storey centre-based childcare facility with a maximum capacity of 56 children ranging from 0-5 years at 20-28 Munni Street, Newtown (site).
The matter was listed for hearing on 24 July 2023 and commenced with a view of the site and the surrounding area. At that time the Court heard from several local residents who gave evidence against the proposal. Amongst other things, they were critical of the fact that the development offered no onsite parking and subject to the Council's Traffic Committee's approval - will be reliant upon 3 timed drop-off spaces at the frontage of the property for all deliveries and child drop off and pick up. Several submitters emphasised that Munni Street is a narrow one-way road which is often parked out on both sides of the street and regularly blocked by garbage trucks or other large vehicles. They object to further loss of their already compromised amenity and took issue with the accuracy of the parking and traffic studies relied upon by the traffic experts which support the application.
At the conclusion of the site view, I requested further details from the traffic experts in response to the concerns raised by the objectors. In response the parties filed a supplementary memo dated 24 July 2023 jointly prepared by the applicant and the Council's traffic expert which affirmed their earlier agreed position that the provision of no onsite parking for the development was both consistent with the Council's LEP parking controls and acceptable having regard to surveys of the site and similar childcare centres in Newton and Surry Hills.
Following the site view, discussions between the parties resulted in the preparation of the following amended documentation, which was filed with the Court on 27 July 2023:
1. Architectural Plans prepared by Dickson Rothschild:
1. DA-0-211 (Rev K) dated 28 June 2023
2. DA-0-212 (Rev N) dated 24 July 2023
3. DA-0-302 (Rev G) dated 24 July 2023
4. DA-0-303 (Rev G) dated 24 July 2023
1. Landscape Plan Nos. 01, 2, 03, L-04 & L-05, all Rev F, all dated 25 July 2023 prepared by Outside In Design Group.
2. Civil Engineering Plans Nos C00.01, C01.01, C01.02, C02.01, C02.02, C02.03, C02.04, C02.05, C02.06, C02.07, C02.08 & C02.09 all Rev G, all dated 25 July 2023 prepared by Engineering Studio Civil & Structural.
3. Hydraulic Services Site Sewer Design Plan No. H01 (Rev A) dated 24 July 2023 prepared by Adcar Consulting.
4. Utility Survey dated 23 July 2023 prepared by Ozdetect.
5. Survey by Geometra dated 23 February 2023 showing levels of stormwater pipe at south eastern corner in red (mark up by Vortex Surveyors on 25 July 2023).
6. Second Addendum to Acoustical Assessment dated 25 July 2023 prepared by The Acoustic Group.
7. Plan of Management dated 25 July 2023 prepared by Ente Group Pty Limited.
8. Operation Waste Management Plan Report No. 3315 (Rev F) prepared by EF Consulting.
(amended development application)
The Council accepts that these further amendments have resolved the contentions between them. On 27 July 2023, the parties sought an adjournment of the hearing to allow the matter to be allocated to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The Court accommodated the parties' request, and the conciliation took place before me on 27 July 2023.
At the conciliation conference, the parties reached 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 development application subject to conditions.
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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended development application. 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.
[2]
Jurisdictional preconditions
There are jurisdictional preconditions that must be satisfied before this function can be exercised. The parties have identified in a jurisdictional submission accompanying the s34 agreement how the jurisdictional preconditions in these proceedings have been satisfied. The Council has also provided me with a copy of the s34 agreement assessment report which addresses how each contention in its Amended Statement of Facts and Contentions (ASOFC) has been satisfied.
After a consideration of the evidence, including the joint reports filed with the s34 agreement I accept the parties' joint submission that the proposed development satisfies all jurisdictional preconditions for the following reasons.
[3]
State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)
Section 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent unless it has considered whether the land is contaminated.
A Preliminary Site Investigation prepared by NEO Consulting dated 15 November 2021 (Tab 14 of the Class 1 Application) provides an assessment of the site and finds that the likelihood of contamination is "low"; and, that the site is suitable for the proposed development and land use.
[4]
State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP)
Chapter 2 of the Biodiversity and Conservation SEPP seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the state, and to preserve the amenity of non-rural areas of the state by preserving trees and other vegetation.
The Arboricultural Impact Assessment Report (Tab 8 of Exhibit AH-1) assess 10 trees on and adjoining the site. One of those trees (Tree 6) died and has been removed. It is proposed to retain one street tree (Tree 1) and Trees 7 & 8 on the site. The remaining trees are to be removed. The Landscaping Plans (Rev F) prepared by Outside In Design Group (Tab 2 of amended development application) proposes replacement trees.
[5]
State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP)
Section 3.22(b) of the Transport and Infrastructure SEPP provides that concurrence from the Department of Education is required where the outdoor space requirements for a proposed building do not comply with reg 108 of the Education and Care Services National Regulations (Education Regulations). A portion of the outdoor play area on the first floor under the verandah does not qualify as outdoor play area because it is not open for a minimum of 1/3 of its perimeter. The verandah area is to be classified as simulate outdoor play area which means that concurrence is required. The plan was referred to the Department of Education and concurrence was granted on 21 July 2023.
Section 3.23 of the Transport and Infrastructure SEPP requires the consent authority to consider "any applicable provisions of the Child Care Planning Guideline" in determining the development application (see section on "Child Care Planning Guidelines 2021 (Guidelines)" below).
Section 3.26 of the Transport and Infrastructure SEPP provides non-discretionary development standards that prevent the authority from requiring more onerous standards relating to location, indoor or outdoor space, site area and site dimensions and the colour of building materials or shade structures. The proposed development complies with the identified development standards.
[6]
Child Care Planning Guidelines 2021 (Guidelines)
Part 2 of the Guidelines outlines the design quality principles, being, context, built form, adaptive learning spaces, sustainability, landscape, amenity and safety. The parties agree that the proposed development complies with the design quality principles.
Part 3 of the Guidelines provides matters for consideration including, site selection and location; local character, streetscape and the public domain interface; building orientation, envelope, building design and accessibility; landscaping; visual and acoustic privacy; noise and air pollution; hours of operation; and, traffic, parking and pedestrian circulation. The parties agree that the proposed development has been assessed against the applicable matters for consideration.
Part 4 of the Guidelines describes specific regulations that apply to internal and external physical environmental matters, including design guidance on how these regulations may be met (see section on "Education and Care Services National Regulations (Education Regulations)" below).
The updated Statement of Environmental Effects dated 29 March 2023 (Exhibit EKW-1 Tab 6) sets out a consideration of relevant provisions of the Guidelines from folios 96 to 121.
[7]
Education and Care Services National Regulations (Education Regulations)
The Education Regulations apply to the proposed development.
The updated Statement of Environmental Effects dated 29 March 2023 (Exhibit EKW-1 Tab 6) sets out a consideration of relevant provisions of the Education Regulations from folios 132 to 133.
[8]
Sydney Local Environmental Plan 2012 (LEP)
The site is zoned R1 General Residential and the proposed development (i.e. a centre-based child care facility) is permitted with consent in this zone.
Clause 2.3(3) requires that regard be had to the objectives of the R1 zone which are as follows:
• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To maintain the existing land use pattern of predominantly residential uses.
To the extent that these zone objectives are relevant, the proposed development is consistent with them (see Exhibit EKW-1 Tab 6 folio 124).
Clause 4.3 of the LEP provides that buildings should not exceed a maximum height of 9m. The elevation and section plans (Tab 1 of amended development application) demonstrate that no part of the proposed development exceeds 9m in height.
Clause 4.4 of the LEP provides that the maximum floor space ratio (FSR) for any building at the site is 0.8:1. Drawing No. DA-0-901 'GFA Diagrams' (Rev G) prepared by Dickson Rothschild (Tab 3 of the Exhibit AH-1) states that the FSR is 0.649:1 which complies with the standard.
Clause 5.10 of the LEP applies because the site is in the vicinity of Union Street West Heritage Conservation Area (HCA). A Heritage Impact Assessment prepared by Zoltan Kovacs is located at Tab 8 of the Class 1 Application. The assessment is on pages 18-19 and 21 and concludes that the impact on the adjacent HCA is acceptable.
Clause 6.21C(2) requires that development consent must not be granted unless the consent authority is satisfied that the proposed development exhibits design excellence. Design excellence was a contention raised by the Council in their ASOFC. The contention is dealt with by the urban designers and following the amendments the urban designers agreed that the requirements of the clause are met.
Clause 7.9(3) requires that the maximum number of car parking spaces for a centre-based child care facility is "1 space plus 1 space for every 100 square metres of the gross floor area of the building". Relevantly, Drawing No. DA-0-901 'GFA Diagrams' (Rev G) prepared by Dickson Rothschild (Tab 3 of Exhibit AH-1) states that the total gross floor area is 404sqm, which means a maximum of 5 car parking spaces are permitted. The proposed development does not provide any car parking which complies with this clause as the clause specifies a maximum not a minimum.
The Traffic and Parking Impact Assessment (Rev B) prepared by McLaren Traffic Engineering (Tab 1 of Exhibit EKW-2) has undertaken surveys two similar inner city childcare centres with on street pick up / drop off. Those surveys indicated a 30% driver rate for parents and a 15% driver rate for staff. These surveys are consistent with surveys undertaken by TEF on behalf of the RMS. Applying these rates the author determined that there is sufficient on-street parking available within 200m of the centre for staff and visitors but to improve efficiency the development proposes that a 10 minute pick up / drop off zone be sign posted on Munni Street in front of the centre during peak pick-up and drop-off times subject to approval by the Local Traffic Committee. The Court is able to determine the appeal by way of grant of development subject to a condition requiring authorisation by the Local Traffic Committee: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [110]- [114].
Clause 7.13 provides that a consent authority may impose a condition requiring the applicable affordably housing levy contribution to be fulfilled. Such condition has been included in the conditions of consent, being Annexure 'A' to the s34 agreement.
Clause 7.14 provides that development consent is required for Class 5 land (which the site is), specifically subcl (3) identifies the requirement of an acid sulfate soils management plan. However, the parties have agreed that an acid sulfate soils management plan is not required in circumstances where the "site is located in a Class 5 Area, meaning that Acid Sulphate Soils are unlikely to be found beneath this site" (refer to Tab 14 of the Class 1 Application, p 8 of the Preliminary Site Investigation prepared by NEO Consulting dated 15 November 2021).
[9]
Sydney Development Control Plan 2012 (DCP)
Clause 3.9 of the DCP requires the preparation of a heritage impact statement for sites with identified heritage items or located within a HCA. Though the site is not a heritage item and is not located within a heritage conservation area, it adjoins a HCA. Accordingly, a heritage impact statement was submitted with the development application (see Tab 8 of the Class 1 Application).
Clause 3.11 of the DCP covers Transport and Parking requirements. Relevantly, the parties agree that the transport and parking arrangements proposed by the Traffic and Parking Impact Assessment (Rev B) prepared by McLaren Traffic Engineering (Tab 1 of Exhibit EKW-2) satisfy this clause.
Clause 3.14 of the DCP addresses Waste Management. Accordingly, an updated Waste Management Plan has been provided (see Tab 8 of the amended development application).
Clause 4.4.4 of the DCP provides guidelines on the allocation of child care places, location (of the child care centre), design of play areas, noise impacts, parking and pedestrian safety. Accordingly, the parties agree that the totality of the amended development application provides plans/reports which sufficiently address the matters in clause 4.4.4.
[10]
Remaining matters in s 4.15(1) of the Environmental Planning and Assessment Act 1979
The development application was notified between 18 March and 9 April 2022, and the Council received fifty-five (55) submissions in responses during the exhibition period with others after.
Between 11 April to 3 May 2023, the Council re-notified the development application, as amended, and received twenty-four (24) submissions in responses during the exhibition period with others after.
Copies of the submissions are included in the Council's Bundle of Documents and as already noted several objectors were given the opportunity to address the Court in respect of the development application at the site inspection on 24 July 2023. The Council informs me that the amended application and the conditions have satisfactorily addressed the concerns of the submitters and as the parties' decision is within power as required by s 34(3) of the LEC Act, I am required to dispose of the proceedings in accordance with their decision.
The Court notes:
1. The applicant is not required to lodge the amended development application on the NSW Planning Portal pursuant to s 38(4) of the Environmental Planning and Assessment Regulation 2021.
2. The Council's Statement of Reasons is located at Annexure B.
The Court orders:
1. The applicant is granted leave to rely on the amended development application.
2. The appeal is upheld.
3. Development application no. D/2022/199, as amended, for the removal of trees and construction of a two-storey centre-based child care facility with a maximum capacity of 56 children ranging from 0-5 years at 20-28 Munni Street, Newtown NSW 2042, is determined by the grant of development consent subject to the conditions of consent in Annexure 'A'.
………………….
S Dixon
Senior Commissioner of the Court
Annexure A (534380, pdf)
Annexure B (111008, pdf)
[11]
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: 28 July 2023