MKWD One Pty Ltd v The Hills Shire Council

Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, (September 2021)
The Box Hill Growth Centre Precinct Development Control Plan 2018
The Hills Development Control Plan 2012

Category: Principal judgment

Parties: MKWD One Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation: Counsel:
G Pavlis (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)
Solicitors:
Fortis Law (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/31560

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 and s 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. DA503/2024/HA (the DA) for the demolition of existing structures, construction of a 135 (one hundred and thirty five) place centre-based child care facility with at grade parking for 42 vehicles at Lot 102 in Deposited Plan 1257039, also known as 116 Old Pitt Town Road, Box Hill NSW 2765 (the site).

2. The DA was lodged on 11 October 2023 following a pre-lodgement meeting between the Applicant and the Respondent.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 August 2024. I presided over the conciliation conference, which began with an on-site view. One submission had been made on the DA, however, the submitter did not attend the on-site view.

4. The s 34 conciliation conference was adjourned to 10 September 2024 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. The s 34 conciliation conference was further adjourned a number of times to enable the parties to come to an agreement over amended plans for the proposed development.

5. Following a number of adjournments of the s 34 conciliation conference, the parties advised that they had reached an 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 DA subject to conditions.

6. A signed s 34 agreement with Annexure A was filed with the Court on 27 November 2024, with amended plans (the amended DA) as agreed between the parties also filed with the Court on 27 November 2024. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

7. The changes made to the DA (as advised by the parties) include:

8. Relocation of the submerged habitable lower ground floor plan spaces to now have built form in the south-east corner of the property;

9. Parking area redesigned to be partially at grade and below natural ground level;

10. Increased landscaping areas along the western boundary;

11. Increased landscaping areas along the southern boundary;

12. Increased landscaping areas along the eastern boundary;

13. Proposed built form to the upper ground floor has been adjusted to primarily run along the eastern boundary, providing for improved acoustic attenuation to the future eastern neighbour;

14. Built form has been updated to reflect current (and desired) character of the surrounding area with the pitched roof form added;

15. Updated acoustic barrier treatment details shown; and

16. Crash Barriers have been proposed along the perimeter of the Outdoor Play Areas along Old Pitt Town Road, Kewney Street and the lower outdoor play area adjacent to the parking areas.

17. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

18. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

19. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows below.

Jurisdictional Matters

Owner’s consent

11. The parties advise that the DA was lodged with the consent of the applicant, whom is the owner of the site.

Community Participation (Sch 1, Div 2, s 7(1)) - Environmental Planning and Assessment Act 1979

12. The DA was exhibited between 12 October 2023 to 3 November 2023. One submission was received in response to the notification of the DA.

13. The parties advise that the amended DA was re-notified between 4 November 2024 to 18 November 2024.

14. The parties agree the proposed development (as amended) has satisfactorily addressed the issues raised in the previous submission received by the Respondent.

Integrated Development

15. The DA is not integrated development as defined under s 4.46 of the EPA Act.

Referral Agencies

16. The parties advise that the DA was referred to Endeavour Energy and Sydney Water. Correspondence from Sydney Water and Endeavour Energy is attached to the conditions of consent.

Conditions

17. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

State Environmental Planning Policy (Precincts – Central River City) 2021

18. State Environmental Planning Policy (Precincts – Central River City) 2021 (the Precincts Plan SEPP) is the relevant environmental planning instrument that applies to the site. Pursuant to Appendix 10 of the of the Precincts Plan SEPP:

19. The site is zoned R2 Low Density Residential under the s 2.2 of Appendix 10 of the Precincts Plan SEPP; and

(a) Pursuant to s 2.3 of Appendix 10 of the Precincts Plan SEPP, the proposed development for centre-based child care facilities is permissible with consent in the R2 zone; and (b) I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out;

2. Section 2.7 of Appendix 10 of the Precincts Plan SEPP provides that the demolition of a building or work requires development consent;
3. Pursuant to s 4.3 of Appendix 10 of the Precincts Plan SEPP, the maximum height of buildings on the site is 8.5 metres; and

(a) The height of the proposed development is 8.3 metres, and thus complies with s 4.3;

4. Pursuant to s 4.4 of Appendix 10 of the Precincts Plan SEPP, there is no applicable maximum floor space ratio (FSR) for the site. However, under s 3.25 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport and Infrastructure SEPP), development consent must not be granted for the purposes of a centre-based child care facility in Zone R2 Low Density Residential if the FSR for the building on the site of the facility exceeds 0.5:1 (refer to par [22] below). The parties advise that the proposed development does not exceed a FSR of 0.5:1, thus complying with s 3.25 of the Transport and Infrastructure SEPP;
5. Section 6.1 of Appendix 10 of the Precincts Plan SEPP requires that development consent must not be granted for development on land to which the Precinct Plan SEPP applies unless the Council is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required; and

(a) The parties advise that the Court can be satisfied that relevant public utility infrastructure can be made available at the necessary time as required by s 6.1 having regard to the correspondence from Sydney Water and Endeavour Energy attached to the proposed conditions of consent.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the proposed development as the site is located within the Hawkesbury-Nepean Catchment. The Biodiversity SEPP seeks to manage and promote integrated catchment management policies. The parties advise that the relevant matters in Pt 6.2 of the Biodiversity SEPP have been considered in the documents accompanying the amended DA, and that the Court can be satisfied that the impact on waterflow and water quality on the catchment is acceptable.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. 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; and the parties advise that the Court can be satisfied that consent can be granted because:

21. The Applicant has undertaken a Detailed Site Investigation of the Site (DSI) and Remedial Action Plan (RAP) prepared by Geotechnical Consultants Australia (GCS);

22. the DSI confirms and recommends:

(a) during the site inspection, GCS did not observe any environmental issues, risks or exposures considered to be of significant concern with the exception of asbestos in two samples; (b) the potential for significant contamination of the soil and groundwater within the site to be moderate, and that the site is suitable for the proposed development and land use, providing that the recommendation contained in the DSI are implemented; and (c) the process for removal of impacted surface soils be documented in a RAP. It is noted that a RAP has been submitted and concludes that the site can be made suitable for its intended use subject to compliance with its recommendations;

3. The proposed conditions of consent include various conditions relating to contamination matters, including requirements to implement the DSI and RAP and undertake validation works (see in particular proposed Conditions of Consent 11 and 39).

4. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

22. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across the State. The provisions of Pt 3.3 of the Transport and Infrastructure SEPP are relevant to development for the purposes of early education and care facilities such as in the proposed development; and

23. The parties advise that no concurrence is required under s 3.22 of the Transport and Infrastructure SEPP as the proposed development is compliant with regs 107 and 108 of the Education and Care Services National Regulation (refer to par [23] below);

24. Section 3.23 of the Transport and Infrastructure SEPP requires that the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines, before determining a development application. This is addressed below in par [24];

25. Section 3.25 of the Transport and 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 FSR for the building on the site of the facility exceeds 0.5:1. The parties advise that the amended DA does not have a FSR in excess of 0.5:1, thus complying with this requirement;

26. Section 3.26(2) of the Transport and Infrastructure SEPP sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority from requiring more onerous standards for those matters, being non-discretionary development standards for the purposes of ss 4.15(2) and (3) of the Act; and

(a) Namely, s 3.26(2)(b) of the Transport and Infrastructure SEPP provides the requirements for indoor or outdoor space. The parties advise that the proposed development provides 444.2m2 (3.29m2 per child) of unencumbered indoor play space and 950m2 (7.03m2 per child) of unencumbered outdoor play space, which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations, which requires at least 3.25m2 of unencumbered indoor play space and at least 7m2 of unencumbered outdoor play space;

5. The parties submit that the amended DA is otherwise consistent with the remaining non-discretionary development standards in s 3.26(2) of the Transport and Infrastructure SEPP.

Education and Care Service National Regulations 2011

23. The Education and Care Services National Regulations 2011 (the Regulations) provide extensive controls and requirements in addition to that of Local Environmental Plans and Development Control Plans and includes licensing and approvals processes, including documentation requirements; facilities and equipment requirements; staffing requirements; child number requirements; operational requirements; administrative requirements; and probity check requirements; and

24. The parties advise compliance with the requirements of the Regulations is set out at pp 43 to 44 in the Statement of Environmental Effects (the SEE).

Child Care Planning Guideline 2021

24. The Child Care Planning Guideline 2021 establishes the assessment framework to deliver consistent planning outcomes and design quality for centre based child care facilities in NSW. Section 3.23 of the Transport and Infrastructure SEPP requires that the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline 2021 before determining a development application; and

25. The parties advise that the amended DA complies with the Child Care Planning Guideline 2021, as addressed at pp 18 to 42 of the SEE.

The Hills Shire Development Control Plan 2012 and Box Hill Growth Centre Development Control Plan 2018

25. The Hills Shire Development Control Plan 2012 and the Box Hill Growth Centre Development Control Plan 2018 (the DCPs) apply to the site. The parties advise that compliance with the DCPs as they relate to child care centres within The Hills Local Government Area is set out in the table appearing at pp 49 to 62 of the SEE which accompanied the DA. The Respondent has considered the applicable DCPs provisions in its assessment of the proposed development.

26. The parties agree that the amended DA can be approved taking into consideration the matters in ss 4.15(1)(b) – (e) of the EPA Act.

Conclusion

27. Having considered the advice of the parties provided above at [11]-[26], I am satisfied that:

28. The Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

29. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

30. Approval of the proposed development is in the public interest.

31. 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.

32. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

33. The Court notes:

34. That Hills Shire Council, as the consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application No 503/2024/HA made on 26 November 2024 to rely on the documents and plans specified below (the amended development application):

| Plan number | Revision number | Plan title | Drawn by | Date of plan | | A000 | C | Cover Page | Janssen Designs | 22/10/2024 | | A001 | C | Calculations & LEP Controls | Janssen Designs | 22/10/2024 | | A002 | C | Site Context Plan | Janssen Designs | 22/10/2024 | | A003 | C | Site Analysis Plan | Janssen Designs | 22/10/2024 | | A004 | C | Lower Ground Floor Plan A | Janssen Designs | 22/10/2024 | | A005 | C | Lower Ground Floor Plan B | Janssen Designs | 22/10/2024 | | A006 | C | Upper Ground Floor Plan | Janssen Designs | 22/10/2024 | | A007 | C | Floor Plans | Janssen Designs | 22/10/2024 | | A008 | C | Elevations and Sections | Janssen Designs | 22/10/2024 | | A009 | C | Elevations | Janssen Designs | 22/10/2024 | | A010 | C | Maximum Building Height Diagram | Janssen Designs | 22/10/2024 | | A011 | C | Aerial Perspectives 1 | Janssen Designs | 22/10/2024 | | A012 | C | Aerial Perspectives 2 | Janssen Designs | 22/10/2024 | | A013 | C | Shadow Diagram – 9am June 21st | Janssen Designs | 22/10/2024 | | A014 | C | Shadow Diagram – 12 noon June 21st | Janssen Designs | 22/10/2024 | | A015 | C | Shadow Diagram – 3pm June 21st | Janssen Designs | 22/10/2024 | | A106 | C | Sun Eye Diagrams 1 | Janssen Designs | 22/10/2024 | | A017 | C | Sun Eye Diagrams 2 | Janssen Designs | 22/10/2024 | | A018 | C | Cut and Fill Diagram | Janssen Designs | 22/10/2024 | | A019 | C | GFA Calculation Diagram | Janssen Designs | 22/10/2024 | | A020 | C | Landscaped Area Calculation Diagram | Janssen Designs | 22/10/2024 | | A021 | C | Emergency Evacuation Diagram | Janssen Designs | 22/10/2024 | | A022 | C | Kitchen Detail Plan | Janssen Designs | 22/10/2024 | | A023 | C | Colour and Finishes Schedule | Janssen Designs | 22/10/2024 | | - | N | Cover Page | Green Space Planning Co. | October 2024 | | L01 | N | Site Analysis | Green Space Planning Co. | October 2024 | | L02 | N | General Arrangement – Upper Level | Green Space Planning Co. | October 2024 | | L03 | N | General Arrangement – Lower Level | Green Space Planning Co. | October 2024 | | L04 | N | Play Concept – Upper Level | Green Space Planning Co. | October 2024 | | L05 | N | Play Concept – Lower Level | Green Space Planning Co. | October 2024 | | L06 | N | Play Character Images | Green Space Planning Co. | October 2024 | | L07 | N | Planting Plan – Upper Level | Green Space Planning Co. | October 2024 | | L08 | N | Planting Plan – Lower Level | Green Space Planning Co. | October 2024 | | L09 | N | Plant Schedule | Green Space Planning Co. | October 2024 | | L10 | N | Plant Images | Green Space Planning Co. | October 2024 | | L11 | N | Plant Details | Green Space Planning Co. | October 2024 | | L12 | N | Landscape Notes | Green Space Planning Co. | October 2024 | | SW001 | C | Cover Sheet | Capital Engineering Consultants | 26/09/2024 | | SW010 | C | Lower Ground Floor Plan, Notes & Details (1/2) | Capital Engineering Consultants | 26/09/2024 | | SW011 | C | Lower Ground Floor Plan, Notes & Details (2/2) | Capital Engineering Consultants | 26/09/2024 | | SW012 | C | On-Site Detention Plan & Section Details (1/2) | Capital Engineering Consultants | 26/09/2024 | | SW013 | C | On-Site Detention Plan & Section Details (2/2) | Capital Engineering Consultants | 26/09/2024 | | SW014 | C | WSUD Plan & Section Details | Capital Engineering Consultants | 26/09/2024 | | SW020 | C | Upper Ground Floor Plan, Notes & Details | Capital Engineering Consultants | 26/09/2024 | | ER001 | C | Soil & Water Management Plan (1/3) | Capital Engineering Consultants | 26/09/2024 | | ER002 | C | Soil & Water Management Plan (2/3) | Capital Engineering Consultants | 26/09/2024 | | ER003 | C | Soil and Water Management Plan (3/3) | Capital Engineering Consultants | 26/09/2024 |

| Approved documents | | Document title | Revision number | Prepared by | Date of document | | Plan of Management | - | - | 11/09/2024 | | Remedial Action Plan | 0 | Geotechnical Consultants Australia | 10 October 2024 | | Detailed Site Investigation | 1 | Geotechnical Consultants Australia | 04/09/2024 | | Certified Environmental Practitioner - Site Contamination Specialist review of Detailed Site Investigation - 116 Old Pitt Town Road, Box Hill NSW 2148 | - | Old Maple Pty Ltd | 5 September 2024 | | Noise Impact Assessment | 7 | Rodney Stevens Acoustics | 3 October 2024 | | Design Certificate Structural Plans Crash Barrier – LEC Approval | - | Capital Engineering Consultants | 23 October 2024 | | Traffic and Parking Impact Assessment | A | McLaren Traffic Engineering | 5 August 2024 | | Swept Path Diagrams 03 – SRV and B99 | A | McLaren Traffic Engineering | 18/10/2024 | | Statement of Environmental Effects | - | Think Planners | 11 September 2024 |

31. The Court orders:

32. 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, in the agreed amount of $14,000, such amount to be paid within 28 days of the date of this order.

33. The appeal is upheld.

34. Development Application No 503/2024/HA (as amended) for the construction of a two-storey centre-based child care facility for 135 children with parking for 42 vehicles on the land at 116 Old Pitt Town Road, Box Hill, being Lot 102 DP 1257039, is determined by the grant of consent subject to conditions included in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A (2661276, pdf)

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