Raland Construction Pty Ltd v Cumberland Council

Texts Cited: Cumberland Development Control Plan 2021
Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

Category: Principal judgment

Parties: Raland Construction Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation: Counsel:
A Johnson (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)
Solicitors:
MillerPrince (Applicant)
Cumberland Council (Respondent)

File Number(s): 2025/94032

Publication restriction: No

Judgment

1. COMMISSIONER: These proceedings are a Class 1 development appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Modification Application MOD2024/0482 (the Modification Application) by the Cumberland Council to modify Development Consent DA2022/0230 (the development consent) to change the design of a child care centre at Lots 29, 30, 31, 32, 33 and 34 in Section 9 of DP 734, known as 58-60 Berwick Street, Guildford NSW 2161 (the site).

History of Development Consent

2. The approved DA2022/0230 includes the demolition of existing structures, site amalgamation and the construction of a 120 place centre based child care facility on the site.

3. On 8 May 2024, Council approved modification application No. MOD2024/0106 pursuant to s 4.55(1) of the Act, the effect of which was to correct an error in condition No. 40 in the development consent that had referenced an outdated set of stormwater drainage plans.

4. The parties advise that the Modification Application is submitted pursuant to the provisions of s 4.55(2) of the EPA Act.

5. The Modification Application as lodged with the Respondent on 3 December 2024 included the following proposed modifications to the development consent:

6. Minor amendments to the front façade to accommodate building services;

7. Reduction in the building height by one storey;

8. Alterations to the roof footprint and void to outdoor play areas;

9. Reduction in the capacity of placements (children) from 120 to 110; and

10. Increase in staff capacity from 18 to 20 staff, subject to modified conditions of consent.

11. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Modification Application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal are made as a result of an agreement between the parties that was reached following a conciliation conference.

Current Proceedings

7. The Applicant filed a Class 1 Appeal Application on 10 March 2025 under ss 8.9 and 8.11 of the EPA Act against the Respondent’s deemed refusal of the Modification Application.

8. The Respondent filed a Statement of Facts and Contentions (SOFAC) with the Court on 26 March 2025. In response to the SOFAC, the Applicant prepared a set of amended plans and additional documents prior to the s 34 conciliation conference.

Section 34A conciliation conference

9. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 14 May 2025. I presided over the conciliation conference. Three submissions were received by the Respondent in response to the notification of the Modification Application, however no submitters wished to attend the on-site view. The on-site view was vacated at the request of the parties.

10. The s 34 conciliation conference was adjourned to 23 May 2025 to allow time for a s 34 Agreement to be finalised by the parties and filed with the Court.

11. The parties advised that they had reached 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 Modification Application, as amended.

12. The Applicant advises that the further amendments made to the Modification Application can be summarised as follows:

13. Layout of the car parking spaces was amended to amend the aisle widths and increase the staff parking spaces from 10 to 14, visitor parking spaces from 11 to 14 resulting in a total of 28 car parking spaces at the centre;

14. Amendments to the ground floor to increase the area of deep soil;

15. A threshold ramp was added for the 2-3 outdoor play areas which resulted in an increase to the total areas of the 2-3 outdoor play area by 1m2 area; and

16. Additional perspex/glass screening added along the perimeter of level 1 and level 2 outdoor play areas, bringing the total screen height to a maximum of 1.8m.

17. A signed s 34 Agreement with Annexures A and B and amended plans (the amended Modification Application) as agreed between the parties was filed with the Court on 22 May 2025. The s 34 Agreement is supported by an agreed statement of jurisdictional prerequisites.

18. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to grant consent to the amended Modification Application.

19. 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.

20. 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

Substantially the Same Development

17. Pursuant to s 4.55(2) of the EPA Act, a consent authority may modify a development consent if:

(a) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

18. In relation to s 4.55(2)(a) of the EPA Act being substantially the same development, the parties advise that the amended Modification Application is accompanied by an amended Statement of Environmental Effects dated 21 May 2025 (Amended SEE) and that having regard pages 19-22 of the Amended SEE:

19. The nature of the proposed use for a centre based child care facility remains unchanged;

20. The intensity of the use of the land, in terms of building height and number of children is proposed to decrease. The height will decrease by one storey, the child numbers will decrease by 8%;

21. The general relationship to adjoining properties will remain as approved. In qualitative terms, the relationship of a childcare centre at upper levels to neighbouring uses will be decreased. In quantitative terms, while the intensity of the use has decreased, the overall essence of the proposed use, that of a childcare centre, will remain;

22. No adverse amenity impacts will result from the changes in the development. No unreasonable solar access impacts will occur to new, existing, or approved development within proximity of the site;

23. While the streetscape of the development is altered with the removal of a storey, this is not classed as significant, as the building remains compatible with the nature of development within the streetscape; and

24. As the development does not result in a significant change in scale it retains the character of the area.

25. In relation to s 4.55(2)(b) of the EPA Act, the parties advise that the Respondent was not required to consult with any relevant Minister, public authority or approval body pursuant to s 4.55(2)(b) of the EPA Act. Despite the Department of Education providing concurrence to the original DA under then s 22(5) of State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017, there were no conditions imposed as a requirement of this concurrence.

Owner’s consent

20. The parties advise that the Modification Application was made by the owner of the site.

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

21. In relation to s 4.55(2)(c) and (d) of the EPA Act, the parties advise that the Modification Application was notified in the same manner as the original application, including to the sole property from which objections were received in respect of the original application, for 14 days between 20 January and 3 February 2025. Three submissions were received from two objectors.

Conditions

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

State Environmental Planning Policies

23. The parties advised that a number of State Environmental Planning Policies apply to the site, as follows:

24. State Environmental Planning Policy (Biodiversity and Conservation) 2021:

(a) The site is located within the Sydney Harbour catchment area. The original DA was assessed by the Respondent to satisfactorily conform to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP). Having regard to the nature of proposed amendments, the parties submit that there are no matters of relevance under the Biodiversity SEPP that warrant further examination and assessment;

2. State Environmental Planning Policy (Resilience and Hazards) 2021:

(a) In relation to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience SEPP), the parties submit that the assessment of the original application drew upon findings of a preliminary site investigation that concluded the site could be made suitable for the development and recommended conditions of consent to adhere to the findings of the report; and that there are no known change in circumstances at the site which warrant further consideration of the Resilience SEPP or altered findings;

3. State Environmental Planning Policy (Transport and Infrastructure) 2021:

(a) The proposed development is defined as a centre-based child care facility under s 3.3 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport SEPP); (b) Section 3.22 of the Transport SEPP establishes a concurrence requirement from the Department of Education if the proposal fails to comply with indoor and outdoor unencumbered space requirements of regs 107 and 108 of the Education and Care Services National Regulation 2011 (NSW); (c) Section 3.26 of the Transport SEPP contains non-discretionary development standards, with which the modified proposed development complies. The amended proposal provides 395m2 of indoor space (3.59m2 per child) and 827m2 of outdoor space (7.52m2 per child), which satisfies the 3.25m2 indoor and 7m2 outdoor controls at s 3.26 of the Transport SEPP.

Cumberland Local Environmental Plan 2021

24. The Cumberland Local Environmental Plan 2021 (the LEP) applies to the site and to the proposed development. Under the LEP provisions:

25. The site is zoned R4 – High Density Residential pursuant to cl 2.2 of the LEP;

26. Pursuant to cl 2.3 of the LEP, Centre-based child care facilities are permitted with consent in the R4 zone;

27. Pursuant to cl 2.7 of the LEP, demolition requires development consent; and

28. I am satisfied that the proposed modification to the approved development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

29. Clause 4.3 of the LEP provides that a maximum building height of 15 metres applies to the site. The maximum building height is the proposed development is 10.85m.

30. Clause 4.4 of the LEP provides that the maximum Floor Space Ratio (FSR) of 1.2:1 applies to the site. The parties advise that the architectural plans show a gross floor area of 907m2 resulting in a FSR of 0.67:1. If level 1 and 2 outdoor play areas (635m2) are included, the gross floor area rises to 1,542m2, resulting in a FSR of 1.14:1, under the maximum allowed.

31. The parties advise that the site is not marked on the following maps in the LEP:

32. the Land Reservation Acquisition Map (clauses 5.1 and 5.1A);

33. the Acid Sulfate Soils Map (clause 6.1);

34. the Foreshore Building Line Map (clause 6.3);

35. the Biodiversity Map (clause 6.5);

36. the Riparian Lands and Watercourses Map (clause 6.6);

37. the Site Specific Provisions Map (clause 6.10);

38. the Design Excellence Map (clause 6.14), and;

39. the Key Sites Map (clause 6.16).

40. Clause 5.10 of the LEP relates to heritage conservation. The parties advise that:

41. The site does not contain a heritage item and is not within a heritage conservation area;

42. The site is within vicinity of a Federation / Queen Anne bungalow at 67 Berwick Street which is listed as heritage item of local significance;

43. Heritage impacts were assessed with the original application as being satisfactory, and;

44. The modifications do not give rise to an increased or unacceptable heritage impact.

45. Clause 5.21 of the LEP relates to Flood Planning. Part of the site is within the flood planning area. The parties advise that the ground level outdoor play area, at RL30.465 is located above the flood planning level of RL29.7 at that portion of the site, and the driveway crest at RL29.4 is above the flood planning level of RL29.3. Based upon the levels and with regard to criteria at cl 5.21(2) of the LEP, the parties advise that the modified development:

46. remains compatible with the flood function and behaviour on the land;

47. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

48. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and;

49. incorporates appropriate measures to manage risk to life in the event of a flood, and;

50. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

51. Clause 6.2 of the LEP relates to earthworks. The parties advise that the original DA was found to satisfactorily conform with cl 6.2 of the LEP; and that the modified development will reduce excavation levels by 260mm.

52. Clause 6.4 of the LEP requires the consent authority to be satisfied of the availability of various essential services, or that adequate arrangements have been made to make available access to the essential services. The parties advise that the Respondent was satisfied with the original application that services were available or could be made available for water supply, electricity supply, stormwater drainage, the disposal and management of sewage and suitable vehicle access, and that nothing within the modification application has altered the Respondent’s prior conclusion.

53. Clause 6.7 of the LEP relates to Stormwater Management. The parties advise that in relation to stormwater management on the site:

54. The extent of water permeable surfaces remains within reasonable expectations for this form of development;

55. Stormwater retention for use as an alternative supply to mains water, in the form of a rainwater tank, is proposed, and;

56. The modified development continues to avoid significant adverse impacts of stormwater runoff on adjoining properties, bushland and receiving waters.

57. Clause 6.9 of the LEP relates to Salinity. The parties advise that the site is marked as potential moderate salinity on the Salinity Map in the LEP; and that the original development satisfied salinity controls and the modified proposal has lesser, and continued acceptable, impact due to reduced excavation.

Child Care Planning Guideline September 2021

34. The parties advise that amended Modification Application satisfies the Child Care Planning Guideline September 2021 (the CCPG) provisions by providing parking at a rate of more than 1 space per 4 children; and that agreed condition of consent 35 provides security measures that conform to CCPG controls.

Cumberland Development Control Plan 2021

35. The parties advise that the amended Modification Application satisfies the Cumberland Development Control Plan 2021 (the DCP) provisions by providing parking at a rate of more than 1 space per 4 children.

Consideration of matters under s 4.15(1) of the EPA Act

36. In determining an application for modification of a consent, a consent authority must take into consideration matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development subject to the application.

37. The EPA Act requires the assessment of modification applications against the relevant matters (‘matters for consideration’) set out in s 4.15(1) of the EPA Act.

38. The parties advise that the Court can be satisfied that the proposed development in the amended Modification Application is suitable for approval, when assessed against the relevant ‘matters for consideration’ in s 4.15(1) of the EPA Act.

Conclusion

39. Having considered the advice of the parties provided above at [17]-[38], I am satisfied that:

40. the Applicant’s amended Modification Application can be approved having regard to the matters in ss 4.15(1)(b)-(e) of the EPA Act;

41. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(2) of the EPA Act have been satisfied;

42. approval of the proposed development is in the public interest.

43. 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.

44. 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.

Notes

42. The Court notes:

43. that Cumberland Council, as the relevant consent authority, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to Modification Application MOD2024/0482 made on 16 May 2025 to rely on the documents specified below:

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1. | Drawing No. 01, Revision J | Compliance Table | Baini Design Pty Ltd | 16 May 2025 | | Drawing No. 02, Revision G | Site Context Plan | 17 April 2025 | | Drawing No. 03, Revision G | Site Analysis Plan | | Drawing No. 04, Revision G | Shadows Diagram | | Drawing No. 05, Revision J | Site Plan | 16 May 2025 | | Drawing No. 06, Revision G | Amalgamation Plan | 17 April 2025 | | Drawing No. 07, Revision G | Demolition Plan | | Drawing No. 08, Revision I | Basement Floor Plan | 14 May 2025 | | Drawing No. 09, Revision H | Ground Floor Plan | 13 May 2025 | | Drawing No. 10, Revision J | Level 1 Floor Plan | 16 May 2025 | | Drawing No. 11, Revision J | Level 2 Floor Plan | | Drawing No. 12, Revision J | Roof Plan | | Drawing No. 13, Revision J | Elevations | | Drawing No. 14, Revision J | Elevations | | Drawing No. 15, Revision J | Sections | | Drawing No. 16, Revision F | Typical Nappy Change Detail | 01 November 2024 | | Drawing No. 17, Revision F | Craft Bench Detail | | Drawing No. 18, Revision F | Bottle Prep Detail | | Drawing No. 19, Revision J | Schedule of Finishes | 16 May 2025 | | Drawing No. 20, Revision G | Calculation Plan, Ground Floor | 17 April 2025 | | Drawing No. 21, Revision G | Calculation Plan, Level 1 | | Drawing No. 22, Revision G | Calculation Plan, Level 2 | | Drawing No. 23, Revision J | Fencing Details, Ground Floor | 16 May 2025 | | Drawing No. 24, Revision J | Fencing Details, Level 1 | | Drawing No. 25, Revision J | Fencing Details, Level 2 | | Drawing No. 26, Revision J | Streetscape Elevations | | Drawing No. 27, Revision J | 3D Perspectives | | Drawing No. 29, Revision F | Views from the Sun | 1 November 2024 | | Landscape Plans | | 2. | Drawing No. 01, Revision E | Landscape Concept | Outside In Design Group | 6 May 2025 | | Drawing No. 02, Revision E | Landscape Concept Levels 1 + 2 | | Drawing No. 03, Revision E | Landscape Concept Elevations | | Engineering Plans | | 3. | Drawing No. SW001, Revision H | Stormwater Layout Plan Cover Sheet | Capital Engineering Consultants | 13 May 2025 | | Drawing No. SW010, Revision H | Stormwater Layout Plan Basement Floor Plan, Notes & Details | | Drawing No. SW020, Revision H | Stormwater Layout Plan Ground Floor Plan, Notes & Details (1/2) | | Drawing No. SW021, Revision H | Stormwater Layout Plan Ground Floor Plan, Notes & Details (2/2) | | Drawing No. SW022, Revision H | Stormwater Layout Plan OSD Tank Plan & Section Details | | Drawing No. ER001, Revision H | Stormwater Layout Plan OSD Tank Plan & Section Details | | Reports | | 4. | Town Planning Response | Think Planners Pty Ltd | 1 May 2025 | | 5. | Supplementary Traffic Statement | The Transport Planning Partnership | 29 April 2025 | | 6. | Proposed Childcare Centre Plan of Management | Raland Construction | | | 7. | Statement of Environmental Effects | Think Planners | 21 May 2025 |

Orders

43. The Court orders that:

44. The appeal is upheld.

45. Development Consent DA2022/0230 is modified by MOD2024/0482 in the terms in Annexure A.

46. Development Consent DA2022/0230 as modified by the Court is Annexure B.

G Kullen

Acting Commissioner of the Court

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Annexure A (212 KB, pdf)

Annexure B (477 KB, pdf)