Polygon Wood Holdings Pty Ltd v Griffith City Council

Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

Category: Principal judgment

Parties: Polygon Wood Holdings Pty Ltd (Applicant)
Griffith City Council (Respondent)

Representation: Counsel:
P Vergotis (Solicitor) (Applicant)
K Glanville (Solicitor) (Respondent)
Solicitors:
Madison Marcus Law Firm (Applicant)
Pikes & Verekers (Respondent)

File Number(s): 2024/268817

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of DA-230/2023 for the demolition of existing buildings and construction of a childcare centre (DA) at 59 Binya Street, Griffith legally known as Lot 2 Section 35 DP 758476 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 30 May 2025. I presided over the conciliation conference.

3. The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-230/2023 in accordance with the documents listed below:

| Drawing / Plan | Date Accepted by Council | Prepared or Drawn By | | DA 02 Site Plan Existing Iso A3 1:500 A | 10 January 2025 | Gardiner Architects | | DA 03 Site Plan Proposed Iso A3 1:500 E | 10 January 2025 | Gardiner Architects | | DA04 Existing Condition + Demolition Plan Iso A3 1:200 A | 10 January 2025 | Gardiner Architects | | DA 05 Roof Plan Proposed Iso A3 1:200 E | 10 January 2025 | Gardiner Architects | | DA 06 Basement Plan Proposed Iso A3 1:200 C | 10 January 2025 | Gardiner Architects | | DA07 Ground Floor Plan Proposed Iso A3 1:200 E­­ | 10 January 2025 | Gardiner Architects | | DA 08 First Floor Plan Proposed Iso A3 1:200 E | 10 January 2025 | Gardiner Architects | | DA 09 Elevations Proposed Iso A3 1:200 E | 10 January 2025 | Gardiner Architects | | DA10 Elevations Proposed Iso A3 1:200 E | 10 January 2025 | Gardiner Architects | | DA12 Section A-A Iso A3 1:100 E | 10 January 2025 | Gardiner Architects | | DA13 Sections B-B (Basement Access Ramp) Iso A3 1:100 E | 10 January 2025 | Gardiner Architects | | DA15 Shadow Diagrams Proposed Iso A3 1:500 E | 10 January 2025 | Gardiner Architects | | DA 16 3ds - Proposed Iso A3 Nts E | 10 January 2025 | Gardiner Architects | | DA 17 3ds - Proposed Iso A3 Nts E | 10 January 2025 | Gardiner Architects | | DA 18 3ds - Proposed Iso A3 Nts E | 10 January 2025 | Gardiner Architects | | DA 19 3ds - Proposed Iso A3 Nts E | 10 January 2025 | Gardiner Architects | | DA 20 Signage - Proposed Iso A3 As Noted E | 10 January 2025 | Gardiner Architects | | DA 21 Site Plan Overlooking Analysis - Proposed Iso A3 1:500 C | 10 January 2025 | Gardiner Architects | | DA 22 Ground Floor Plan Child Areas Iso A3 1:200 E | 10 January 2025 | Gardiner Architects | | DA 23 First Floor Plan Child Areas Iso A3 1:200 E | 10 January 2025 | Gardiner Architects | | DA 24 3ds - Proposed Iso A3 Nts E | 10 January 2025 | Gardiner Architects | | Document | Date | Prepared by | | Preliminary Site Investigation | 9 December 2024 | McMahon Earth Science | | Preliminary NCC Assessment | 9 December 2024 | DB Certifiers Pty Ltd | | Flood Risk Assessment Report | 4 November 2024 | Torrent Consulting Pty Ltd |

4. As part of the conciliation conference process the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent under s 4.16 of the EPA Act.

5. 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. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

Jurisdictional Prerequisites

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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 set out below.

7. The DA was lodged to the Respondent on 14 December 2023. I am satisfied that owners consent accompanied the DA as provided in the class 1 application. The Respondent notified the DA from 4 January 2024 to 25 January 2024. Nine submissions were received.

8. At the commencement of the conciliation, the Court and parties heard oral submissions from an objector, who also raised concerns on behalf of a number of objectors. The parties explained to the Court how the submissions had been addressed to the extent that they were satisfied with the amended DA.

9. As the parties have entered into an agreement, the Court’s role is limited in considering the issues raised to legal matters. In reaching agreement, the parties have considered the merit concerns raised in the written objections.

Griffith Local Environmental Plan 2014

10. The subject site is zoned R1 General Residential, where the proposed use for a centre-based child care facility is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 permits demolition with consent, as sought by the amended DA.

11. Clause 5.21 flood planning applies to the site, which is identified as a flood fringe area on the CBD Overland Flow Floodplain Risk Management Study and Plan. The amended DA is accompanied by a Flood Risk Assessment prepared by Torrent Consulting dated 4 November 2024 (Flood Assessment). Based on the Flood Assessment, jurisdictional statement and other supporting documents, the parties agree and I accept that the Flood Assessment satisfactorily addresses the provisions of cl 5.21 in that the development will not adversely affect flood functions and behaviours, and will not adversely impact safe occupation and evacuation in the event of a flood. The recommendations have been included as conditions of consent and further detailed stormwater plans have also been included as conditions of consent.

12. Clause 7.1 earthworks applies to the proposed development. The amended DA is accompanied by Architectural Plans prepared Gardiner Architects Revision E and Waste Management Plan prepared by Salt that demonstrate that the provisions have been adequately considered. The conditions of consent require dilapidation reports be prepared for a number of adjoining properties prior to the commencement of demolition. I accept that the provisions have been addressed.

13. Clause 7.10 essential services applies to the site. On the basis of the documentation within the Class 1 application, I accept that all services are currently available and will continue to be for the proposed development.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site in relation to contamination. The amended DA is accompanied by a Preliminary Site Investigation prepared by McMahon Earth Science dated 30 July 2024 which recommends that the site is suitable for the proposed use subject to standard demolition of materials management conditions and unexpected finds conditions. These have been included in the conditions of consent. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

15. Chapter 3 Educational establishments and childcare facilities of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the proposed development.

16. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 and 3.26 of SEPP TI as shown on the architectural plans (drawing 23) and outlined in the jurisdictional statement. Further, based on the agreed submissions from the parties in the jurisdictional statement, I have considered the provisions of ss 3.22, 3.23, 3.26, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

Heads of consideration

17. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

18. As the parties’ decision is one 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.

19. 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.

20. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

21. The Court orders:

22. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $50 within 7 days of the date of this Order.

23. The appeal is upheld.

24. Development consent is granted to development application no. DA230/2023(1) for the demolition of existing buildings and establishment of a childcare facility with advertising signage subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

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Annexure A (321 KB, pdf)