COMMISSIONER: Hunter Region Property Pty Ltd (the Applicant) has appealed the refusal by Lake Macquarie City Council (the Respondent) of its Development Application (DA) No 1288/2021 for a centre-based child care facility and Torrens title subdivision of one into seven lots including demolition, tree removal, and dedication of land for public road (the Proposed Development) at 110 Avondale Road, Cooranbong (the Subject Site).
The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.
The Applicant's DA was notified from 22 June to 13 July 2021 pursuant to the provisions of the Lake Macquarie Community Participation Plan 2019, and two submissions were received in response to the notification. These submissions have been considered during the development assessment process.
On 9 June 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant's amended development application, subject to conditions.
No site view of the Subject Site was undertaken during the conciliation conference and no objectors had sought to make submissions in relation to the Proposed Development.
Under the Parties' agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant's 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.
There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:
1. in relation to the provisions of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP Childcare) (now repealed):
1. the Applicant's DA was lodged on 22 June 2021 and was not finally determined before the commencement of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) on 1 March 2022;
2. the Proposed Development includes a proposed centre-based child care facility, and so Pt 3 of the former SEPP Childcare applies in relation to the determination of the Applicant's DA by virtue of s 1(1) Sch 9 concerning savings and transitional provisions in relation to Ch 3 of SEPP T&I, and in relation to this:
1. the concurrence of the Regulatory Authority is not required under cl 22 of SEPP Childcare because the Applicant's proposed child care facility complies with regs 107 and 108 of the Education and Care Services National Regulations 2011;
2. pursuant to cl 23 of Pt 3 of SEPP Childcare, the applicable provisions of the Child Care Planning Guideline (the Guideline) must be considered before determining an application for a centre-based child care facility, and;
3. the Applicant's DA was accompanied by a compliance assessment report in relation to the proposed centre-based child care facility against the Guideline as an attachment to the statement of environmental effects (SEE), as well as a compliance assessment of the Proposed Development against the provisions of Pt 3 of SEPP Childcare confirming compliance with the Guideline and SEPP Childcare;
4. in addition, the Applicant has provided a soil suitability advice letter dated 21 December 2021, confirming the suitability of the soil on the Subject Site for the Proposed Development;
5. on the basis of the above assessments, I am satisfied that the Proposed Development is acceptable in relation to the provisions of cl 23 SEPP Childcare and the Guidelines;
6. the provisions of cl 24A of Pt 3 of SEPP Childcare do not apply as that clause was inserted into the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) Amendment 2021 which commenced on 17 December 2021 and does not apply to an application made but not finally determined by that date (cl 1 Sch 5 of SEPP Childcare).
7. the Applicant's SEE has confirmed, and I am satisfied, that the Proposed Development complies with the non-discretionary development standards in cl 25 of SEPP Childcare; and
8. the remaining provisions of Pt 3 of SEPP Childcare do not apply to this application for a centre-based child care facility;
1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):
1. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this:
1. the Parties have advised that based on all available information, the Subject Site has not been used for any activities that would have given rise to any potential contamination, and the site is not anticipated to contain any contamination;
2. the existing land use on the Subject Site is for residential purposes and no previous activities have occurred that are a potential likely concern for contamination consistent with Table 1 of Managing Land Contamination Planning Guidelines;
3. the Parties agree that the Subject Site is suitable for the proposed use including as a centre-based child care centre for the purposes of reg 25 of the Education and Care Services National Regulations 2011; and
4. I am satisfied that the Subject Site is suitable for its intended use under the Proposed Development; and
5. I am further satisfied that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal;
1. in relation to the provisions of Lake Macquarie Local Environmental Plan 2014 (LMLEP):
1. the Subject Site is zoned R2 Low Density Residential pursuant to the provisions of cl 2.3 of LMLEP and subdivision, a centre-based child care centre is permissible with consent in this zone;
2. the Applicant's proposed lots comply with the minimum lot size provisions under cl 4.1 of the LMLEP;
3. the Director of Planning, as delegate pf the Secretary, has issued a Satisfactory Arrangements Certificate SVPA 2021-150 dated 17 April 2023, for the purposes of cl 6.1(2) of LMLEP regarding the provision of state infrastructure contributions;
1. in relation to other matters:
1. the Applicant proposes the dedication of land for public road under s 9 of the Roads Act 1993, and notes that:
1. the Proposed Development includes the proposed dedication of some 735 m2 of land as public road pursuant to s 9 of the Roads Act 1993, for the future extension of Courin Drive; and
2. while there is no contributions plan under the provisions of LMLEP or planning agreement relating to this dedication, the provisions of s 9 of the Roads Act 1993 provide a lawful basis for such dedication, as recently confirmed by Horton C in his judgment in the matter of Urban Apartments Pty Ltd v Penrith City Council [2023] NSWLEC 1094 and the reasons for which (at [72] - [79]) I adopt.
Having considered the advice of the Parties, provided above at [8], I agree that:
1. regard has been had to the objectives of the Subject Site's zoning in determining the Applicant's DA;
2. the Applicant's DA can be approved having regard to the matters in subs 4.15(1)(b)-(e) of the EP&A Act, including in relation to the submissions received in response to notification which have been considered by the Parties in reaching agreement;
3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been satisfied; and
4. approval of the Proposed Development is in the public interest.
Further, I am satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.
As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required 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 Court notes that the Respondent has agreed to the amendment of the Applicant's development application pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021 so as to rely on the plans listed in Condition 2 at Annexure "A" to this judgment.
[2]
Orders
The Court orders that:
1. The appeal is upheld.
2. Development Application DA/1288/2021 for a centre-based child care facility and Torrens title subdivision of one into seven lots including demolition, tree removal, and dedication of land for public road at 110 Avondale Road, Cooranbong, is approved subject to the conditions set out in Annexure "A".
[3]
Commissioner of the Court
225331.22 Annexure A (332647, pdf)
[4]
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Decision last updated: 27 June 2023