La Land Pty Ltd v Fairfield City Council

Land and Environment Court (NSW)|2025-01-29|Before: Exhibit P

JUDGMENT

COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application 190.1/2023. The development application seeks consent for the demolition of existing structures and construction of a two (2) storey childcare centre accommodating sixty-eight (68) children and nine (9) educators, above one level of basement carparking accommodating sixteen (16) vehicles, site works and landscaping. The development is proposed at 89 Mandarin Street, Fairfield East. (Lot 1 DP 21817)
The appeal was subject to conciliation on 17 July 2024, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached the conciliation conference was terminated pursuant to s 34(4) of the LEC Act.
Following conciliation, the development application was amended by the Applicant on 14 November 2024. Two key amendments were the reduction in the height of the building from three to two storeys and a reduction in the child numbers from 100 to 68.
The hearing commenced onsite with a view of the site in the company of the representatives and the experts.

The site and its context

The site is legally described as Lot 1 in DP 21817 and is known as 89 Mandarin Street, Fairfield East. The site is a rectangular shaped mid-block allotment with a frontage of 15.24m to Mandarin Street, a depth of 61.05m and a total area of 923.2m2. The site slopes gently to Mandarin Street from the rear, having a fall of approximately 1.5m.

The amended development application.

Leave was unopposed and granted by the Court at the commencement of the hearing for the Applicant to amend the application by relying on amended landscape and architectural plans (Exhibit P, O), an updated preliminary site investigation (Exhibit R) and Plan of Management (POM) (Exhibit Q). The Court exercised its power under s 39(2) of the LEC Act to agree to further amendment of development application.
The amended plans in part respond to and incorporate changes to the development foreshadowed or discussed at the joint conference of the experts in the proceedings.
The Respondent seeks an order for costs thrown away under s 8.15(3) of the EPA Act on the basis they argue the amendments were more than minor.
The decision Pepper, J in Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153; [2009] NSWLEC 153 [42] articulates the principles that may assist in determining whether amendments are minor, as follows: (a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]).
I have considered the text of s 8.15(3) of the EPA Act, and these principles, and find that when the amendments are considered wholistically they are more than minor. A costs order pursuant to s 8.15(3) of the EPA Act follows.

Issues

As a result of the amendments to the development application the Respondent submits that the contentions raised in the Amended Statement of Facts and Contentions filed on 2 December 2024 (Exhibit 1) have been addressed to the Respondent's satisfaction, subject to the imposition of agreed conditions of consent (Annexure A).
I am nonetheless required to carry out an assessment of the development application pursuant to s 4.15 of the EPA Act to determine if it is appropriate to grant development consent. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, and regulations. Section 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development and any submissions made by the local residents. For the reasons that are set out below, I accept the parties' agreed position that the contentions raised by the Council on the appeal have now been addressed and that development consent can be granted subject to the agreed conditions of development consent. I am also satisfied that each of the jurisdictional preconditions to the grant of development consent is met.

Expert Evidence

The following experts gave evidence in the proceedings:

Town Planning: Jonathan Wood (for the Applicant) and Glen Apps (for the Respondent)
Childcare: Lynda Campbell (for the Applicant)
Landscape: Anthony Morton (for the Applicant)
Traffic: Ramy Selim (for the Applicant) and Stephen Rajathurai (for the Respondent)
Stormwater: Matthew Wahbe (for the Applicant) and Stephen Rajathurai (for the Respondent)
Acoustic: Stephen Gauld (for the Applicant) Richard Haydon (for the Respondent)
Contamination: Zuhaib Siddiqui (for the Applicant) and Ahmad Faizi (for the Respondent)

Each of the preceding pairs of experts prepared joint reports which were admitted into evidence. Given their written agreement that the Respondent's contentions were resolved, the experts were not required for cross examination.

Planning Framework

The jurisdictional preconditions to the exercise of power to grant consent to the development application have been met. These requirements are summarised below.
The development application was lodged with the consent of the owner of the site, as required by s 23 of the Environmental Planning and Assessment Regulation 2021.
Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The development application is accompanied by a Preliminary Site Investigation. The Preliminary Site Investigation concludes that there is no risk of contamination on the site and that it is suitable for the proposed development. The conditions of consent include specific controls to manage the demolition of the existing structures and include the requirement for a hazardous material investigation to be completed prior to demolition works. I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application. I accept the agreement of the environmental experts that the site is suitable for the proposed development.
Chapter 3 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies as the development seeks consent for centre-based childcare. Pursuant to s 3.23 of SEPP TI, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines issued by the NSW Department of Planning, Industry and Environment in 2021 (Childcare Guidelines) before determining the application. An assessment of the amended development application against the Childcare Guidelines was in part the subject of the joint expert report. Having considered the Childcare Guidelines, the amended plans and the plan of management for the operation of the centre, I find the development meets the objectives.
The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by ss 3.22 and 3.26 of SEPP TI as shown on the architectural plans and supported by the agreement reached between the planning and childcare experts in their joint report, Exhibit 3.
Further, the Education and Care Service National Regulations require provision of 3.25m2 of indoor unencumbered space and 7m2 of outdoor unencumbered per child. The proposed development is compliant with these requirements.
Pursuant to s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Ch 2 (Vegetation in Non-Rural Areas) applies to the development application. The development application proposes the removal of nominated trees on the site. The parties agree and I accept that the development application also proposes high quality landscape embellishment works which will reduce the bulk and scale of the development, soften the built form and assist in maintaining privacy to neighbouring properties. The parties agree, and I accept, that the relevant provisions of Ch 2 of SEPP BC are met.
Pursuant to s 6.1 of SEPP BC, Ch 6 'Water Catchments' applies as the site is located within the Georges River Catchment. Division 2 of Ch 6 includes controls on development which a consent authority in determining the development application must give consideration to.
With reference to those matters listed the parties agree and with reference to the materials in the development application and the agreed evidence of the stormwater experts, I accept that the development will:

have a neutral effect on the quality of water entering any nearby waterway and will not have an adverse impact on waterflow of any nearby natural waterbody pursuant to s 6.6 of SEPP BC as demonstrated by the Applicant's stormwater management plans (Exhibit K),
not have a direct, indirect or cumulative adverse impact on any terrestrial, aquatic or migratory animals or vegetation or wetlands pursuant to s 6.7 of SEPP BC;
not impact any periodic flooding that benefits wetlands and other riverine ecosystems as the site is not flood affected pursuant to s 6.8 of SEPP BC;
unlikely to have an impact on recreational land uses in the regulated catchment or have any impact to public access to and around foreshores pursuant to s 6.9 of SEPP BC; or
not likely have any adverse environmental impact to any adjacent or downstream local government area pursuant to s 6.10 of SEPP BC.

Pursuant to the Fairfield Local Environmental Plan 2013 (LEP 2013) the site is zoned R4 High Density Residential. Development of the land for the purposes of a centre-based childcare centre is permitted with consent in the zone. In determining the development application, I have considered the objectives of the zone. I note that in the joint expert report of the planners they conclude that the development is consistent with the objectives of the R4 zone. I accept that agreement.
Demolition is permitted with consent pursuant to cl 1.7 of LEP 2013.
Pursuant to cl 4.3 'Height of Buildings' of LEP 2013 a 20m height limit applies to the site. The amended development application applies with this standard.
Pursuant to cl 4.4A(2)(a) of LEP 2013 a floor space ratio of 0.8:1 applies to the site. The amended development application applies with this standard.
As required by cl 6.2 (Earthworks) of LEP 2013, in determining the development application, I have considered the matters listed at subcl (3). In considering those matters I am assisted by a Statement of Environmental Effects (SEE) and the architectural plans which confirm the scope of excavation works. I am satisfied that the earthworks proposed in the development application will not have a detrimental impact on existing drainage patterns and soil stability in the locality of the development, likely future use or redevelopment of the land, neighbouring amenity or uses, cultural or heritage items or features of the surrounding land.
Clause 6.12 'Design Excellence' applies. The application of this provision was the subject of a supplementary joint report of the planning experts. Having considered that report, and having reviewed the architectural plans and other supporting documents I am satisfied the design exhibits design excellence, satisfying cl 6.12(3) of LEP 2013. My reasoning is:

The form, materials and detailing of the amended proposal achieve a high standard of architectural design and are consistent with and reinforce the residential character of the site and locality. Further, the form and external appearance of the amended proposal are responsive to the site's opportunities and constraints;
I agree with and accept the conclusion of the planning experts that the amended architectural design will improve the quality and amenity of the public domain. In particular the amended entry design, the provision of landscaping in the front setback and the improved façade modulation assist in achieving this objective,
The proposed development has no impact on any designated view corridor.
The landscaping is integrated into the architectural design of the amended proposal.
That the conclusion that the site is suitable for the development is supported by:
the conformity of the development with the requirements of the relevant planning controls,
the conclusions of the preliminary site investigation, and
the agreement of the experts in the proceedings that the development warrants approval.
The development application meets the requirements for parking and vehicular access and pedestrian circulation detailed in the Fairfield Development Control Plan 2013 (DCP 2013) and the Child Care Planning Guidelines issued by the NSW Department of Planning, Industry and Environment in 2021 (Childcare Guidelines).

The DCP 2013 applies to the site, except where those provisions are overridden by the application of s 3.27 of SEPP TI. The statement of environmental impacts filed with the application details the compliance of the proposed development with the applicable 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.

Public Submissions

The development application was initially notified by the Respondent between 3 July 2023 to 18 July 2023. Two submissions were received. Those submissions raised the following concerns with the development application:

Traffic generation and car parking,
Inconsistency with the development with the surrounding existing and desired future of the area,
Acoustic impact,
Impact of aircraft noise from Bankstown Airport on children in care,
Noncompliance with the planning controls,
Loss of privacy,
Overshadowing,
Fire safety,
Pollution,
Waste generation.

Following the amendment of the development application on 14 November 2024 the development application was renotified by the Respondent. The submissions received raised the following issues.

The potential for criminal activity,
Acoustic impacts,
Traffic impacts,
Privacy.

In undertaking the evaluation under s 4.15 of the EPA Act, I am satisfied that the concerns raised by the objectors do not warrant the refusal of the application.

Each of the contentions raised by the Council has been resolved.

As a result of amendments made to the development application in the course of the appeal proceedings, each of the contentions raised by the Council on the appeal has been resolved.

Insufficient regard to the zone objectives.

I reiterate my findings at [25]. The town planning experts addressed this contention in their joint report and reached agreement that the proposed development meets the objectives of the R4 High Density Residential zone. Relevantly, they considered and agreed that the development will not hinder the ability of other land to amalgamate to allow for residential developments and multi dwelling housing to be carried out.

Noncompliance with the requirements for unencumbered open space.

Based on the amended plans it is an agreed submission of the parties that the requirements of the National Regulations are met. I reiterate my findings at [21].

Design of the outdoor play area is unsatisfactory.

The joint expert report identified a small number of improvements that should be made to the outdoor play areas proposed in the development. These have now been made in the amended plans proposed to be approved. Further, a schedule of play for the relevant child groups has been prepared as part of the POM. The Respondent confirms on this basis this contention is resolved.

Emergency management not demonstrated.

The parties agree, and I accept, that this contention is resolved by the amended POM and the imposition of the following condition of consent contained in Annexure A: 17. Emergency Evacuation Procedures Prior to the issue of a Construction Certificate, an Emergency Evacuations Procedure must be prepared by a licensed and accredited fire safety consultant and submitted to the certifier. Reason: To ensure the safety of children in care.

Accessibility for all users not demonstrated.

The experts agree, and I accept, that the amended plans demonstrate the proposed development is accessible to all users in accordance with the relevant standards that apply to the development of a childcare centre. This contention is resolved.

Unsatisfactory presentation to the public domain

I reiterate my findings at [30]. This contention is resolved.

Inadequate natural light and ventilation

The amended architectural plans respond to the expert evidence by including the provision of a ventilated sky light to the 2-3-year-old indoor play room. In the supplementary joint report, the experts agree that this amendment resolves this contention. I accept their agreement. This contention is resolved.

Insufficient storage provided.

Control 4.1 of the Childcare Guidelines requires the provision of outdoor play area storage. The amended plans demonstrate this requirement has now been met. This contention is resolved.

Inadequate and insufficient parking

The traffic experts in the proceeding have reached agreement that the amended basement layout and that the waste management collection arrangements are acceptable. I accept their agreement. This contention is resolved.

Insufficient landscaping

Concurrent with the amended architectural plans, the amended development application includes updated landscape plans. This includes improved planting, planters and perimeter landscaping. The experts agree that this amendment resolves this contention. I accept their agreement. This contention is resolved.

Stormwater drainage arrangements unacceptable

The amended development application includes updated stormwater plans. These plans were the subject of expert evidence. The experts agree that the amended stormwater plans are acceptable. I reiterate my findings at [24]. This contention is resolved.
In their joint report the planning experts considered the impacts of the proposed development on the adjoining properties. The impacts considered include overshadowing, visual privacy, noise, and future development potential.
The planning experts conclude that: Solar access: - the most affected property will receive 3 hours solar access to over 50% of their private open space. - The proposed development does not reduce solar access to the residents living area. Visual privacy: - The first floor windows in the proposed childcare centre have sill heights at a level which prevent overlooking to the adjoining properties. Acoustic privacy: - On the basis of the acoustic experts agreement that any noise impacts are acceptable, they conclude the impacts on adjoining properties are acceptable.
In relation to the potential impact of the proposed development on the potential of the adjoining sites to be redeveloped the planning experts agree this is resolved. I repeat my findings at [36]. This contention is resolved.

Suitability of the site for the development

I repeat my findings at [30]. This contention is resolved.

Insufficient information

The parties agree that this contention is resolved by the amended development which addressed the nominated items in this contention. I accept this contention is resolved.

Development consent should be granted.

For the reasons expressed above, each of the contentions raised by the Respondent on the appeal have been adequately addressed through additional information and amendments to the development application. As such, there is no reason advanced that could form a basis upon which development consent should be refused.
The proposed development is permissible on the site, the jurisdictional preconditions have been met and it complies with the relevant development controls. The evidence from the experts engaged in the proceedings do not identify any merit reasons which would support the refusal of the application. Further, I am satisfied that the matters raised by the objectors have been satisfactorily addressed either through amendments to the development application or conditions of consent.,
It is therefore appropriate to grant development consent in the circumstances, subject to the conditions agreed by the parties.

Orders

The orders of the Court are: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The appeal is upheld 3. Development application 190.1/2023 for the demolition of existing structures and construction of a two (2) storey childcare centre accommodating sixty-eight (68) children and nine (9) educators, above one level of basement carparking accommodating sixteen (16) vehicles, site works and landscaping is determined by the grant of consent subject to the conditions in Annexure A. 4. The Exhibits are returned with the exception of Exhibit 1, 9, O and Q.

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: 13 February 2025

(2009) 169 LGERA 153

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Cases Cited (2)