Saab v Cumberland Council

Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline (1 October 2021)

Category: Principal judgment

Parties: Raymond Anthony Saab (Applicant)
Cumberland Council (Respondent)

Representation: Counsel:
J Smith (Applicant)
C McFadzean (Solicitor) (Respondent)
Solicitors:
Fortis Law Pty Limited (Applicant)
Cumberland Council (Respondent)

File Number(s): 2024/78728

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application 2022/0510 (the DA) for the construction of a centre based child care facility for 60 children at 21 Donnelly Street, Guildford (Lot 6 DP 1080177 and Lot 7 DP 9006) (the site) by Cumberland Council (the respondent).

2. This matter was originally listed for hearing on 17 March 2025 however prior to the hearing the parties advised that they had reached an agreement, that no objectors had requested to make submissions on site and that all submitters had been advised by the respondent of the parties’ intention to enter into an agreement. The parties therefore requested that the site viewing be vacated and the matter commence in Court. This request was granted and upon commencement of the hearing the parties further requested that the matter be relisted for a s 34 conciliation conference. The matter was relisted for a s 34 conciliation conference and a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) commenced on 17 March 2025. I presided over the conciliation conference.

3. 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 to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended application subject to conditions of consent.

4. The parties advised that the application had been amended to address matters raised in the contentions with the changes, in summary including:

5. Reduction in gross floor area achieved through a reduction in the height of acoustic walls;

6. Changes to the basement entry including improvements to sightlines and provision of deep soil landscaping;

7. Changes to the basement layout including the configuration of the proposed turning bay;

8. Provision of additional information to clarify the height of proposed acoustic walls relative to adjacent properties; and

9. Inclusion of a rainwater tank.

10. The respondent, as the relevant consent authority has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant amending DA 2022/0510 in accordance with the documents listed at Annexure A (amended DA).

11. 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. I have considered the contents of the jurisdictional statement together with the documents referred to therein, the Class 1 Application and its attachments, the joint expert reports and the documents that are referred to in condition 2 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

12. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

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

Jurisdictional matters

9. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended DA, subject to conditions of consent, is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

10. Pursuant to s 23 of the EPA Regulation, owner’s consent accompanied the DA and formed part of the Class 1 Appeal documentation. I also note that the consent of the owner has been provided for the proposed drainage easement through the adjacent property at 20 O’Connor Street, Guildford.

11. The DA was originally notified by the respondent between 3 and 17 November 2022. A total of four submissions objecting to the application were received. As outlined above, no objectors advised that they wished to speak at the commencement of the proceedings and all submitters were advised by the respondent of the parties’ intention to enter into an agreement. In reaching the agreement, the parties have advised that the matters raised by objectors have been considered.

Cumberland Local Environmental Plan 2021

3. The development works are for the purposes of a centre based child care centre, which is a permissible use in the R2 – Low Density Residential zone in which the site is located, pursuant to the Cumberland Local Environmental Plan 2021 (CLEP).
4. The development is consistent with the objectives of the R2 – Low Density Residential zone including notably “to enable other land uses that provide facilities or services to meet the day to day needs of residents”.
5. Demolition is permissible with consent under cl 2.7 of CLEP and consent is sought for demolition as part of the subject application.
6. The proposed development complies with the maximum height of building development standard (maximum proposed height of 7.2 metres (m) where a maximum of 9m applies) in accordance with cl 4.3 of CLEP.
7. No maximum floor space ratio (FSR) applies to the proposal under CLEP however the proposal complies with the applicable maximum FSR development standard under State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) having an FSR of 0.47:1 where a maximum of 0.5:1 applies.
8. Clause 5.10 requires the consent authority to consider the impact of the proposed development on the heritage significance of any nearby heritage items or heritage conservation areas. A heritage item is located approximately 40m from the site however, given the distance and intervening development, the parties are satisfied the impact is minimal. I am therefore satisfied that consideration has been given the impact as required.
9. Clause 6.2 Earthworks requires that when deciding whether to grant consent the consent authority must be satisfied of a variety of matters in respect of earthworks. In respect of these matters the parties’ have advised that:

“The excavation is unlikely to disrupt or detrimentally effect drainage patterns and soil stability in the locality.

The excavation is part of the proposed redevelopment of the site and will not of itself stymie the site’s future use or redevelopment.

The quality of soil to be excavated of is de minimis importance and not of determinative weight. Conditions 67 and 68 ensure the use of clean fill and disposal of excavated material to an appropriate destination.

The excavation is unlikely to have any discernible effect on the likely amenity of adjoining properties.

The likelihood of disturbing relics is low.

The site is not proximate to a waterway, drinking water catchment of environmentally sensitive area.

Adverse impacts from earthworks can be managed by conditions, including the provision and maintenance of sediment and erosion control measures – see condition 13. “

10. Accordingly, on the basis of the parties’ advice, the amended documentation and the recommended conditions of consent, I am satisfied that the relevant matters in respect of cl 6.2(3) have been considered.
11. Clause 6.4 Essential services provides that development consent must not be granted unless the consent authority is satisfied that essential services (including water, electricity, sewage, stormwater drainage and vehicular access) are available or that adequate arrangements have been made to make them available for the proposed development. I am satisfied on the basis of the existing use of the site, the amended plans and documentary evidence submitted that the site can, and will, be drained through a drainage easement over 20 O’Connor Street, Guildford, that essential services are available. Other services are also available.
12. Clause 6.7 Stormwater management provides that development consent must not be granted unless the consent authority is satisfied of various matters in respect of stormwater management. In respect of these matters the parties’ have advised that:

“…the extent of water permeable surfaces is within reasonable expectations for this form of development;

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

the development avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters.”

13. Accordingly, on the basis of the parties’ advice, the amended documentation and the recommended conditions of consent, I am satisfied that the relevant matters in respect of cl 6.7(2) have been considered.
14. In accordance with cl 6.9 Salinity the site is mapped as having moderate salinity potential. Subclause 6.9(2) provides that development consent must not be granted unless the consent authority has considered the matters specified. In respect of these matters the parties’ have advised that:

“…the Proposed Development is not likely to have an adverse impact on salinity processes on the Site;

salinity is not likely to have an impact on the Proposed Development in any meaningful way;

the Proposed Development’s design and siting will avoid any potential significant adverse environmental impact with regard to salinity; and

conditions of consent are imposed to minimise or mitigate salinity related impacts – refer to condition 13.”

15. Accordingly, on the basis of the parties’ advice, the amended documentation and the recommended conditions of consent, I am satisfied that the relevant matters in respect of cl 6.9(2) have been considered.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. Prior to the granting of consent consideration is required to be given to whether a subject site is contaminated and if so, the consent authority is required to be satisfied that it can and will be made suitable for the proposed use in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. I am satisfied that the site is suitable for the proposed use on the basis of the Preliminary Site Investigation report prepared by Geotechnical Consultants Australia (27 April 2022) and the proposed conditions of consent including conditions 12, 62, 66 and 67.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

17. The subject DA was lodged on 11 October 2022, that is, prior to the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022 (SEPP Amendment) which included a savings provision. Accordingly, Ch 10 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP), as it applied prior to the SEPP Amendment continues to apply to the subject application. Section 10.18(a) of the BC SEPP requires matters referred to in Ch 10, Pt 10.3, Div 2 to be taken into account prior to the grant of development consent. In respect of these matters the parties’ have advised:

“…pursuant to section 10.19, the Proposed Development will have a negligible and acceptable impact on biodiversity, ecology and environmental protection. Subclauses (a)-(i) raise no matters that warrant refusal of the Proposed Development.

pursuant to section 10.20, the Proposed Development will have no impact upon public access to, and use of, the foreshore and waterway.

pursuant to section 10.21, the Proposed Development has no implications for a working harbour.

pursuant to section 10.22, the Proposed Development has no implications for use of the waterways or foreshore.

pursuant to section 10.23, the Proposed Development has no impact upon the scenic quality of the waterways and foreshore.

pursuant to section 10.24, the Proposed Development has no impact upon views.”

18. Accordingly, on the basis of the parties’ advice, the nature of the proposed development, the amended documentation and the recommended conditions of consent, I am satisfied that the relevant matters in respect of Ch 10 of the BC SEPP have been considered.

State Environmental Planning Policy (Transport and Infrastructure) 2021

19. Chapter 3 Educational establishments and child care facilities of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies to the proposed development. In respect of s 3.25 I note that the proposal complies with the maximum FSR of 0.5:1 having an FSR of 0.47:1. Further, the parties agree and I accept that the amended proposal complies with the non-discretionary standards set out at s 3.26 of the TI SEPP and the indoor and outdoor unencumbered space requirements outlined in the Education and Care Services National Regulation (2011) (ECS Reg) regs 107 and 108. Accordingly, the concurrence of the Regulatory Authority is not required as provided by s 3.22 of the TI SEPP. Based on the Statement of Environmental Effects prepared by Think Planners dated 7 October 2022 and agreement of the parties, I have considered the provisions of ss 3.22, 3.23 of the TI SEPP, the Department of Planning, Industry and Environment’s ‘Child Care Planning Guideline’ (1 October 2021) and the ECS Reg and accept that the relevant matters have been addressed.

Conclusion

10. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

11. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

12. The orders of the Court are:

13. The appeal is upheld.

14. Development Application No. 2022/0510 for the demolition of existing structures and the construction of a centre based child care facility for 60 children at 21 Donnelly Street, Guildford (Lot 6 DP 1080177 and Lot 7 DP 9006) is determined by the grant of consent subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

Annexure A (349233, pdf)

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