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[2025] NSWLEC 1388
General information, not legal advice.
Land and Environment Court (NSW)
2025-05-30
Kullen AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Heavy Machine Pty Ltd v Fairfield City Council [2025] NSWLEC 1388
Hearing dates: 12 and 13 March 2025
Date of orders: 30 May 2025
Decision date: 30 May 2025
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders:
(1) 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, as agreed or assessed.
(2) The appeal is upheld.
(3) Development Application No 102.1/2024, as amended, for the demolition of existing structures, removal of vegetation, construction of a two storey centre-based child care facility for 109 children, one level of basement car parking containing 30 car parking spaces, site works and landscaping at 59 Hemphill Avenue, Mount Pritchard NSW 2170 legally known as Lot 8 DP 208791, is determined by the grant of development consent, subject to the conditions of consent at Annexure A.
(4) All exhibits are returned except for Exhibits A and 2.
Catchwords: DEVELOPMENT APPEAL – centre based child care facility – orders
Legislation Cited: Contaminated Land Management Act 1997, Div 2 Pt 3
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.46, 8.7, Sch 1, Div 2, s 7
Land and Environment Court Act 1979, ss 34, 39
Education and Care Services National Regulations 2011, regs 107, 108
Environmental Planning and Assessment Regulation 2021, s 38
Fairfield Local Environmental Plan 2019, cll 2.2, 2.3, 2.7, 4.3, 4.4, 6.2, 6.9
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Pt 6.2, Div 2, ss 6.6, 6.7, 6.8, 6.9. 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.25, 3.26, 3.27
Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021
Fairfield Citywide Development Control Plan 2013
Fairfield Citywide Development Control Plan 2024
Category: Principal judgment
Parties: Heavy Machine Pty Ltd (Applicant)
Fairfield City Council (Respondent)
Representation: Counsel:
M Staunton (Applicant)
A Hemmings (Respondent)
Solicitors:
Ters Legal (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2024/232305
Publication restriction: No
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Fairfield City Council of Development Application No 102.1/2024 (the DA).
The DA sought consent for the demolition of existing structures, removal of vegetation, construction of a double-storey centre-based child care facility for 109 children, one level of basement car parking containing 30 car parking spaces and associated landscaping works on the land at No 59 Hemphill Avenue, Mount Pritchard, legally known as Lot 8 in DP 208791 (the site).
The DA was lodged by the Applicant with Fairfield City Council (the Respondent) on 22 April 2024.
The DA was notified and advertised by the Respondent between 11 May 2024 and 6 June 2024. Two submissions from one submitter were received by the Respondent in response to the notification.
The issues raised by the submitter have been summarised by the Respondent as follows:
Traffic impact;
Traffic safety;
Clustering of preschools; and
Location of building.
On 24 June 2024 the Applicant in these proceedings filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
A conciliation conference was held in the proceedings pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 18 September 2024, which was terminated by the Court.
On 12 February 2025 the Applicant was granted leave by the Court to amend the DA and to rely on amended plans and documents. The amended DA (Version 2) was re-notified by the Respondent to adjoining properties prior to the Hearing. No additional submissions were received by the Respondent, although the original submission was maintained.
On 21 February 2025, the Respondent filed with the Court its Amended Statement of Facts and Contentions (the Amended SOFAC).
On 4 March 2025, the following experts prepared a Joint Expert Report (Joint Expert Report):
Benjamin Black – Consultant Town Planner on behalf of the Applicant;
Lynda Campbell – Consultant Childcare Expert on behalf of the Applicant;
Rebecca Surian – Consultant Landscape Architect on behalf of the Applicant; and
Hayley Tasdarian – Consultant Town Planner on behalf of the Respondent.
On 5 March 2025, the following experts prepared a Joint Expert Report concerning the Acoustic contentions raised in the Amended Statement of Facts and Contentions (Acoustic Expert Report):
Stephen Gauld on behalf of the Applicant; and
Richard Haydon on behalf of the Respondent.
As part of the Joint Expert Report, amended architectural plans (Version 2 Plans) and an amended landscape plan (Amended Landscape Plan) were prepared (and which were appended to the Joint Expert Report at Annexure C and Annexure D, respectively.
The Hearing commenced on 12 March 2025 with an on-site view. One submitter attended the site view and made a submission to the Court. This submission related primarily to the “over-saturation” of child care centres in the immediate vicinity of the site, and potential traffic impacts arising from the proposed development. This submission is discussed at [32-35] below.
At the completion of the on-site view, the parties indicated that they wished to continue to seek an agreed position on the proposed development. The Hearing was adjourned to allow time for further discussions between the parties and their expert witnesses.
The parties advised that their experts agreed in the Joint Expert Report and the Acoustic Expert Report that the contentions raised in the Amended SOFAC were resolved by the provision of the Version 2 Amended DA and the Amended Landscape Plans with the following exceptions:
The incorporation of increased setbacks to the proposed acoustic structures on the northern and southern boundaries so that they are up to 1.5 metres or consistent with the basement setback; and
The inclusion of the ground floor ‘transition area’ as gross floor area.
The Applicant provided the Respondent with further amended plans (Revision 3 Plans) and updated landscape plans (Further Amended Landscape Plans) which the parties advise resolve the outstanding Issues in the following manner:
The setback of the proposed northern boundary acoustic structure on the ground floor has been increased from 1m to 1.215m so that it is in line with the basement setback;
The setback of the proposed southern boundary acoustic structure on the ground floor has been increased from 1m to 1.5m; and
The bottom of the proposed northern and southern acoustic screens attached to the ‘transition zone’ have been opened to allow a 1450mm gap on both sides with a metal palisade fence 1200mm beneath the screens. The northern and boundary fence height facing these acoustic screens has been increased to 2.1m.
The parties advised that all contentions have now been resolved by the preparation of the Version 3 Amended DA Plans and the Further Amended Landscape Plans. This agreement is supported by the Supplementary Joint Expert Report (dated 12 March 2025) and the Supplementary Joint Acoustic Report (dated 13 March 2025) as filed with the Court on 13 March 2025 (see [30(1)]-[30(8)] below.
With the agreement of the Respondent on 13 March 2025 the Applicant was granted leave of the Court by Notice of Motion to further amend the DA (Version 3). The final amended drawings as agreed by the parties are as follows:
Final drawings prepared by DBG Design & Building Group:
(a) Drawing No.DA1002, Issue B, dated 30 August 2024; (b) Drawing No.DA1003, Issue A, dated 30 August 2024; (c) Drawing No.DA1004, Issue C, dated 3 February 2025; (d) Drawing No.DA1005, Issue B, dated 30 August 2024; (e) Drawing No.DA1006, Issue B, dated 30 August 2024; (f) Drawing No.DA1007, Issue B, dated 30 August 2024; (g) Drawing No.DA1008, Issue E, dated 25 February 2025; (h) Drawing No.DA1009, Issue B, dated 30 August 2024; (i) Drawing No.DA1010, Issue C, dated 12 March 2025; (j) Drawing No.DA2001, Issue G, dated 12 March 2025; (k) Drawing No.DA2002, Issue D, dated 3 March 2025; (l) Drawing No.DA2003, Issue G, dated 12 March 2025; (m) Drawing No.DA2004 ,Issue H, dated 12 March 2025; (n) Drawing No.DA2005, Issue H, dated 12 March 2025; (o) Drawing No.DA3001, Issue E, dated 28 February 2025; (p) Drawing No.DA3002, Issue H, dated 12 March 2025; (q) Drawing No.DA3003, Issue G, dated 12 March 2025; (r) Drawing No.DA3004, Issue H, dated 12 March 2025; (s) Drawing No.DA3005, Issue G, dated 12 March 2025; (t) Drawing No.DA3006, Issue G, dated 12 March 2025; (u) Drawing No.DA4001, Issue H, dated 12 March 2025; (v) Drawing No.DA4002, Issue H, dated 12 March 2025; (w) Drawing No.DA4003, Issue H, dated 12 March 2025; (x) Drawing No.DA4004, Issue B, dated 10 March 2025; (y) Drawing No.DA4005, Issue D, dated 12 March 2025; (z) Drawing No.DA4006, Issue D, dated 12 March 2025; (a) Drawing No.DA4007, Issue A dated 3 February 2025; (b) Drawing No.DA4008, Issue G, dated 12 March 2025; (c) Drawing No.DA4009, Issue D, dated 3 February 2025; (d) Drawing No.DA4010, Issue D, dated 3 February 2025; (e) Drawing No.DA4011 Issue B, dated 3 February 2025; (f) Drawing No.DA4012, Issue D, dated 12 March 2025; (g) Drawing No.DA5001, Issue F, dated 10 March 2025; (h) Drawing No.DA6001, Issue H, dated 12 March 2025; (i) Drawing No.DA6002, Issue H, dated 12 March 2025; (j) Drawing No.DA6003, Issue F, dated 12 March 2025; (k) Drawing No.DA7001, Issue C, dated 25 February 2025; (l) Drawing No.DA8001, Issue F, dated 28 February 2025; (m) Drawing No.DA8002, Issue D, dated 25 February 2025; (n) Drawing No.DA8003, Issue D, dated 25 February 2025; and
(a) Ground Floor and Basement Landscape Concept, Drawing No 01, dated 12 March 2025; (b) First Floor Outdoor Play Area and Typical Playground Details, Drawing No L-02, dated 12 March 2025; and (c) Section A-A, Drawing No L-03, dated 12 March 2025.
The Court in granting the Applicant leave to rely upon the amended plans and other documents the subject of the Notice of Motion exercised, under s 39(2) of the LEC Act, the functions and discretions of Fairfield City Council, as the relevant consent authority, to approve the amending of the DA by the Applicant, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, in accordance with the amended plans and other documents for which leave was granted.
The Applicant agreed at the Hearing to pay the costs of the Respondent thrown away as a result of the amendment of the DA allowed in this order pursuant to s 8.15(3) of the EPA Act.
The site is legally described as Lot 8 in DP 208791 and is known as 59 Hemphill Avenue, Mount Pritchard.
The site is an irregular shaped mid-block allotment with a frontage of 25.61m to Hemphill Avenue, a varying depth of between 54.2m and 70.1m, and a total area of 1250.8m2. The site slopes to the east, having a fall of approximately 4m. The site is presently occupied by an older style single dwelling house, and ancillary sheds and garage, with an associated concrete driveway, and existing vegetation.
The site is surrounded by one and two storey dwelling houses to its north, south and east. The dwellings are a mix of differing architectural designs and built form. To the west of the site is Mount Pritchard Public School. The immediate locality is characterised by low density residential development.
The site is situated within Zone R2 Low Density Residential pursuant to the provisions of the Fairfield Local Environmental Plan 2013 (the LEP).
Development for the purposes of “centre-based child care facilities” is permissible with consent in Zone R2 Low Density Residential pursuant to the LEP.
The site is subject to a maximum height of buildings of 9m pursuant to the Height of Buildings Map referred to in cl 4.3 of the LEP.
The site is subject to a maximum floor space ratio of 0.45:1 pursuant to the Floor Space Ratio Map referred to in cl 4.4 of the LEP.
Clause 6.2 Earthworks of the LEP applies in circumstances where excavation is proposed.
The Fairfield Citywide Development Control Plan 2024 (the DCP) applies to the site.
Prior to the preparation of the amended DA (Version 3), there were a number of contentions raised by the Respondent that had not been fully resolved, as discussed at [15] above). These have now been resolved in the amended DA (Version 3) in the manner discussed below at [30(1)]-[30(8)]. In particular, the experts advise that the contentions have been resolved as follows:
Unencumbered Outdoor Space:
(a) Based on the amended plans, the ground floor covered outdoor space is sufficiently open on its western, southern and northern sides, and is appropriately designed for use by children, such that it performs the necessary function as unencumbered outdoor space; (b) On this basis, it is appropriately included as outdoor space for the purposes of satisfying reg 108 of the Education and Care Services National Regulations 2011 (the Regulations); and (c) For the above reasons, the ground floor covered area is not included as gross floor area (GFA) and the development remains compliant with the maximum permitted Floor Space Ratio (FSR) of 0.45.
(a) The contention related to the degree of enclosure of the covered ground floor outdoor area. It is agreed that the area covered by the amended roof in the northwest section of the first floor, as shown on the amended plans (Version 3), does not constitute gross floor area GFA.
(a) The amended plans (Version 3) have relocated the acoustic structures to align with the basement side setbacks and on this basis, the contention is resolved.
(a) The contention was previously resolved in the amended DA Version 2.
(a) The amendments contained in the amended DA (Version 3) resolve this contention by increasing the side setbacks and providing greater area for landscaping and deep soil areas.
(a) The experts agree that the southern neighbour will receive DCP compliant solar access during mid-winter; and (b) The acoustic structures are to be constructed of glass. The glass material of the southern acoustic structure will not cause overshadowing.
(a) The contention was previously resolved in the amended DA Version 2.
(a) The Acoustic experts were in agreement that the amended DA (Version 3) would satisfactorily address the predicted noise impacts to the most critical residential premises to the north and south of the site.
In relation to the issue of the proliferation of child care centres in the locality raised by the submitter, Mr Staunton advised that current State Government policy is to not impose restrictions on a proposed child care centre based on the location of other child care centres in the vicinity.
This policy position is given statutory expression in Section 3.26(2)(a) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Infrastructure SEPP), which includes the following non-discretionary development standard in relation to the carrying out of development for the purposes of a centre-based child care facility:
“(a) location—the development may be located at any distance from an existing or proposed early education and care facility,”
Further reinforcing this policy position, Section 3.27(1)(c) of the Infrastructure SEPP states that a provision of a development control plan that specifies a requirement, standard or control in relation to the proximity of a facility to other early education and care facilities does not apply to development for the purpose of a centre-based child care facility. Clause 13.1.3 of the Fairfield Citywide Development Control Plan 2024 (the 2024 DCP) addresses location requirements for child care centres. Any requirements in the 2024 DCP based on proximity to other child care centres do not apply pursuant to s 3.27(1)(c) of the Infrastructure SEPP.
The issue of traffic increase and a “dangerous” bend in Hemphill Avenue was raised by the submitter. Ms Hemmings confirmed at the hearing that the Respondent has no issues with the traffic impacts or management of the proposed development.
As noted at [4] above, the submitted DA was notified and advertised by the Respondent between 11 May 2024 and 6 June 2024. Two submissions from one submitter were received by the Respondent in response to the notification.
As noted at [8] above, the amended DA (Version 2) was re-notified by the Respondent to adjoining properties prior to the Hearing. No additional submissions were received by the Respondent, although the original submission was maintained.
“• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.”
Demolition requires development consent pursuant to cl 2.7 of the LEP. The DA seeks development consent for the demolition of the structures on the site.
Pursuant to cl 4.3 of the LEP, a 9m building height limit applies to the site. The proposed development complies with cl 4.3 as no part of the building is higher than 7.2m.
Clause 4.4 of the LEP relates to FSR controls. Pursuant to cl 4.4 of the LEP, a maximum FSR of 0.45:1 applies to the site and the proposed development has a FSR of 0.4499:1, in compliance with this development standard.
Clause 6.2 of the LEP relates to earthworks. The proposed development involves the carrying out of earthworks associated with the construction of a basement parking level and the matters specified in cl 6.2(3) of the LEP must be considered by the Court in granting consent to the development application.
An assessment against cl 6.2 of the LEP has been undertaken in the Statement of Environmental Effects (the SEE) submitted with the DA. The parties advise that they agree that each of the matters at cl 6.2(3)(a)-(h) of the LEP have been satisfactorily considered in the assessment of the amended DA.
Clause 6.9 of the LEP relates to essential services. The site is located within an established residential area and contains an existing dwelling connected with access to water, electricity, sewerage, stormwater and with suitable vehicular access, and the DA is accompanied by a Traffic Impact Assessment and a Stormwater Management Plan that are satisfactory to the parties.
Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to land located in the City of Fairfield local government area. The proposed development includes the removal of existing vegetation from the site and landscaping of the new development, with the proposed deep soil areas acceptable to the Respondent.
Chapter 6 of the Biodiversity SEPP applies to the proposed development because the site is within the Georges River Catchment, which is a regulated catchment for the purposes of Ch 6 of the Biodiversity SEPP. Division 2 of Pt 6.2 includes controls applying to development within a regulated catchment generally.
The parties advise that the Court can be satisfied as to the matters in ss 6.6(2) and 6.7(2) on the basis of the plans and documents submitted with the DA including the letter from Capital Engineering Consultants dated 12 March 2025. Sections 6.8-6.10 of the Biodiversity SEPP are not relevant to the proposed development.
I am satisfied that the proposed development meets the requirements of the Biodiversity SEPP.
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.
The parties agree that the site has been used for residential purposes for a significant period and is not identified in the Council’s records as being contaminated or being declared an area of investigation under Div 2 Pt 3 of the Contaminated Land Management Act 1997.
The Applicant has submitted the Preliminary and Detailed Site Investigation (the PSI and DSI) and Remediation Action Plan report (the RAP) prepared by Broadcrest Consulting Pty Ltd dated February 2025. The PSI and DSI and the RAP have identified some contamination at the site but conclude that the site can be remediated and made suitable for the purposes of the proposed development in accordance with the recommendations of the RAP.
I am satisfied that consent can be granted to the proposed development under the Resilience and Hazards SEPP, noting that Conditions 1 and 44 of the conditions of consent will ensure that the required remediation will be carried out before the site is used for a child care centre.
Chapter 3 of the Infrastructure SEPP aims to facilitate the effective delivery of educational establishments and early care facilities across the State and provides a planning regime for educational establishments and early education and care facilities.
Section 3.22 of the Infrastructure SEPP applies to the development of a centre-based child care facility if the development standards in subss 3.22(1)(a) and (b) of the Infrastructure SEPP are not met. The parties agree that the proposed development complies with the indoor and outdoor unencumbered space requirements pursuant to regs 107 and 108 of the Regulations as follows:
(i) The total indoor unencumbered space required is 354.25m2 and the proposed development provides a total indoor unencumbered space of 354.48m2; and (ii) The total outdoor unencumbered space required is 763m2 and the proposed development provides a total outdoor unencumbered space of 764.71m2.
The concurrence of the Regulatory Authority for the proposed development is therefore not required under s 3.22 of the Infrastructure SEPP.
Section 3.23 requires that before determining a development application for development 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 (the Guideline), in relation to the proposed development.
The parties advise that the applicable provisions of the Guideline have been considered in the assessment of the DA.
Section 3.25 of the 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 floor space ratio for the building on the site of the facility exceeds 0.5:1. The proposed development has a FSR of 0.4499:1, in compliance with this development standard.
Section 3.26 of the Infrastructure SEPP identifies development standards for particular matters relating to a centre-based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters, including indoor and outdoor space requirements.
The parties advise that they agree that the proposed development complies with the non-discretionary development standards in s 3.26 of the Infrastructure SEPP. This includes compliance with the indoor and outdoor unencumbered space requirements pursuant to regs 107 and 108 of the Regulations.
Section 3.26 of the Infrastructure SEPP is also discussed at [33] above.
The Fairfield Citywide Development Control Plan 2013 (the 2013 DCP) applied to the DA at the time of lodgement but has since been revoked. The 2024 DCP contains no savings provision and therefore applies to the DA.
The parties advise that all relevant provisions of the 2024 DCP have been considered in the assessment of the DA. The Respondent submitted that the amended DA (Version 3) does not require re-notification given that it is substantially the same as the previous proposal and does not cause any greater impacts.
The Court orders:
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, as agreed or assessed.
The appeal is upheld.
Development Application No 102.1/2024, as amended, for the demolition of existing structures, removal of vegetation, construction of a two storey centre-based child care facility for 109 children, one level of basement car parking containing 30 car parking spaces, site works and landscaping at 59 Hemphill Avenue, Mount Pritchard NSW 2170 legally known as Lot 8 DP 208791, is determined by the grant of development consent, subject to the conditions of consent at Annexure A.
All exhibits are returned except for Exhibits A and 2.
Heavy Machine Pty Ltd
Fairfield City Council [2025] NSWLEC 1388