JKPB Investments Pty Ltd v The Council of Camden

JUDGMENT

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant, JKPB Investments Pty Ltd, against the deemed refusal of their development application 2022/1027/1. The development application, as amended, seeks consent for the construction of a two-storey 80-place centre-based childcare facility with basement car parking and associated site works at 19 Sultana Avenue, Leppington.
2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 1 August 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents. The parties' agreement is for the grant of consent to the application, as amended, subject to conditions.
3. 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 on the basis that: 1. The development application was made by Janssen Designs as agent for JKPB Investments Pty Ltd with the written consent of the owners of the land: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [43]. 2. The development application was notified in accordance with the Camden Council Community Participation Plan for a period of 36 days from 14 December 2022 until 18 January 2023. Three submissions were received in objection to the development application. I am satisfied that those public submissions have been taken into account in the determination of the development application. 3. State Environmental Planning Policy (Precincts - Western Parkland City) 2021 (WPC SEPP) applies to the site. The site is zoned C4 Environmental Living in Appendix 5 Camden Growth Centre Precinct Plan under the WPC SEPP. The proposed development (centre based child care facility) is permissible with consent in the C4 Environmental Living zone. In determining the development application, I have had regard to the objectives of the zone which are: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. 1. Section 6.1 of Appendix 5 (Public Utility Infrastructure) applies to the site. I am satisfied that adequate arrangements have been made to ensure that electricity, water and sewer will be available to the site when required. 2. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. As part of the development application the Applicant has provided a Preliminary Site Investigation report prepared by GCA dated 19 May 2023 (PSI). The PSI concludes that the site is suitable for the proposed development subject to the implementation of the recommendations in Section 14 of the PSI. The annexed conditions require compliance with the recommendations of the PSI. I am satisfied that the requirements of s 4.6 of the RH SEPP are met. 3. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the site as it is in the Hawkesbury-Nepean Catchment. In determining the development application, I have given consideration to the matters referred to in s 6.6(1) of the BC SEPP. I accept the agreement of the parties that based on the documents accompanying the development application, including the stormwater plans and report, I can be satisfied of the matters in s 6.6(2) of BC SEPP. 4. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) concerns educational establishments and child care facilities and applies to the proposed development. Section 3.22 of SEPP TI requires concurrence of the Regulatory Authority in the event that the proposed development does not comply with the unencumbered indoor or unencumbered outdoor space requirements of reg 107 or 108 of the Education and Care Services National Regulations. I am satisfied with the agreed position of the parties that the proposed development complies with regs 107 & 108 and therefore concurrence from the Regulatory Authority is not required. 5. Section 3.23 of the SEPP TI requires the consent authority to consider "any applicable provisions of the Child Care Planning Guideline" in determining the development application. The development application sets out a consideration of those matters in the Statement of Environmental Effects (SEE) In accordance with s 3.23 and based on the SEE, I have considered the applicable provisions of the Child Care Planning Guideline. 6. Section 3.26(2) of SEPP TI 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. In particular, s 3.26(2)(b) of SEPP TI provides the requirements for indoor or outdoor space. The proposed development provides at least 3.25sqm of unencumbered indoor play space per child and at least 7sqm of unencumbered outdoor play space per child, consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations. The proposed development otherwise complies with the non-discretionary development standards.