COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) brought by the Applicant against the Respondent's refusal of their development application (DA/22/1188). As amended the development application seeks consent for demolition of existing structures and construction of a childcare facility for 98 children with basement carparking with 24 spaces and associated works. The development is proposed at 36 and 38 Leonard Street, Colyton (legally described as Lot 20 and 21 in DP 206813).
The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 14 June 2023. The matter did not resolve, and the proceedings were listed for hearing. The development application was amended with the consent of the Court on 1 December 2023. The hearing commenced on site on 5 December 2023 and submissions were made to the Court by members of the public. Following those submissions, the parties agreed that, on the basis of the expert evidence prepared for the hearing, that on the basis of further changes to the plans and other documentation and the agreed conditions of consent, that the contested issues had been resolved. The parties therefore requested that the proceedings be adjourned and listed for a conciliation conference under s 34 of the LEC Act.
The Court granted the request and arranged a conciliation conference between the parties, which was held on December 6, 2023. I presided over the conciliation conference. At the conciliation conference, 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 application and granting development consent to the amended application subject to conditions of consent.
As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction on the basis that:
1. The development application was lodged in December 2022 by the project architect as agent and with consent of the owner of the land, satisfying s 23 of the Environmental Planning and Assessment Regulation 2021. The Applicant, as principal, has standing to commence the proceedings under s 8.7(1) of the EPA Act: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010)177LGERA312; [2010] NSWLEC 223 at [43].
2. The development application was notified and publicly exhibited in accordance with the Respondent's Community Engagement Strategy 2019. Nine submissions and a petition were received in objection to the application. Those objections raised concerns with traffic, access and parking, tree removal, waste collection, market saturation, and loss of housing. At the commencement of the hearing, a number of residents addressed the Court raising these concerns with the development application. The parties agree, and I accept, that the issues raised by the submissions have been taken into account in determining the development application as required by s 4.15(1) of the EPA Act as follows.
1. Access in and out of the site is addressed in the joint report of the traffic expert who are satisfied that the development application provides compliant sight lines to the driveway entry and exit, compliant manoeuvring within the basement and the ability to exit the site in a forward direction.
2. The Applicant's Traffic and Parking Impact Assessment report demonstrates that traffic generation arising from the proposed development does not compromise the service level at intersections relied upon to access the site.
3. With respect to Leonard Street specifically, analysis has been conducted relating to entry and exit into/out of the site and is compliant subject to the installation of restricted parking signage which is reflected in the agreed conditions of consent (condition 74) in Annexure A. The parties agree, and I accept, that whilst the roadway is narrow with a 90-degree bend in close proximity to the site, the dimensions of the carriageway width of Leonard Street allow for kerb side parking on both sides and clearance for a vehicle to pass. The traffic experts in the proceedings agree that the contentions raised in the proceedings are resolved by amendments to the development application and the conditions in Annexure A.
1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be made suitable after undergoing remediation) for the proposed use. The development application is accompanied by a Preliminary Environmental Site Investigation which concludes that the site is suitable for the proposed development. Compliance with the recommendations of this report is required in the annexed conditions.
2. The site is located within the Hawkesbury-Nepean sub catchment pursuant to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). As such, in accordance with Div 2, in determining the development application the consent authority must have regard to water quality and quantity, aquatic ecology, flooding, recreation and public access and total catchment management. The parties agree, and I accept, that those matters have been considered and are addressed in the amended plans and the stormwater management plan.
3. The development application seeks consent for the removal of vegetation and the retention of nominated trees. The provisions of SEPP BC at Pt 2 apply. I am satisfied that the proposed retention, planting and landscaping will soften the built form and assist in maintaining the privacy of neighbouring properties.
4. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the development as the development seeks consent for a child care facilities. Chapter 3 of SEPP TI contains provisions in relation to child care facilities.
5. Pursuant to s 3.22(1) of SEPP TI, the proposed development meets the required quantum of unencumbered outdoor and indoor space per child set out in the Education and Care Services National Regulations 2011 (Education and Care Regulation). As such, concurrence of the Regulatory Authority is not required.
6. Pursuant to s 3.23 of SEPP TI, in determining the development application I am required to take into account the NSW Department of Planning, Industry and Environment, Child Care Planning Guidelines 2021 (Child Care Planning Guidelines). The Statement of Environmental Effects accompanying the development application details the compliance of the development with the guidelines. I am satisfied that the Child Care Planning Guidelines have been considered.
7. Further, s 3.26 of SEPP TI details non-discretionary development standards. The parties agree and I accept that the development application complies with these standards.
8. The Penrith Local Environmental Plan 2010 (LEP 2010) applies to the land. Pursuant to LEP 2010, the site is zoned R2 Low Density Residential. Development for the purpose of a childcare centre is permitted with consent in the land. As required by cl 2.3 of LEP 2010 in determining the development application, I have given consideration to the objectives of the zone, they are:
● To provide for the housing needs of the community within a low density residential environment.
● To enable other land uses that provide facilities or services to meet the day to day needs of residents.
● To promote the desired future character by ensuring that development reflects features or qualities of traditional detached dwelling houses that are surrounded by private gardens.
● To enhance the essential character and identity of established residential areas.
● To ensure a high level of residential amenity is achieved and maintained.
1. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2010.
2. The proposed development complies with the applicable development standards for height and floor space ratio that apply to the site pursuant to cll 4.3 and 4.4 of LEP 2010 respectively.
3. Clause 7.1 'Earthworks' applies to the site. The development application is accompanied by civil plans, stormwater engineering plans and a preliminary site investigation. The parties agree, and I accept, that the proposal is compatible with the zoning and will ensure the future use will not have an impact on neighbours. Disturbance of relics is not anticipated given the land has previously been disturbed. The site is not in proximity to water catchments or environmentally sensitive land. Further, the parties agree the proposed development has been designed to:
• Ensure excavation has limited impact on adjoining properties.
• Ensure the excavation will not have a detrimental impact on drainage patterns.
• Ensure stability of the subject site and neighbouring properties.
In determining the development application, I have considered the factors at cl 7.1(3) of LEP 2010.
1. Clause 7.4 'Sustainable development' requires the consent authority to consider the listed principles of sustainable development in determining whether to grant consent. The development application includes an ESD Assessment Report which verifies that the development application will comply with the sustainability principles. Compliance with the recommendations of this report is included in the annexed conditions. In determining the development application, I have considered the principles listed at cl 7.4 of LEP 2010.
2. As required by cl 7.7 'Servicing' in LEP 2010 in determining the development application, I am satisfied that the development will be connected to reticulated water supply and sewer system.
3. Clause 7.30 'Urban heat' applies to the development as the land is zoned residential. Subclause (3) precludes the grant of consent unless the consent authority is satisfied that planning and design measure listed in the clause are incorporated in the development to reduce the urban heat island effect. The development application includes an ESD Assessment Report which verifies that the development application will comply with the provisions of cl 7.30. The parties agree, and I accept, the development incorporates those principles by maximising opportunities for deep soil planting by locating play equipment partially under the first floor projection, freeing up site area for planting along the eastern setback. I accept the provision is satisfied.
4. The Penrith Development Control Plan 2014 (DCP 2014) applies to the site. The Statement of Environmental Impacts and the agreed jurisdictional note details the compliance of the proposed development with DCP 2014. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.
5. The Education and Care Regulation provides extensive controls and requirements in addition to that in LEP 2010 or DCP 2014. Compliance with those requirements is addressed in the Statement of Environmental Effects accompanying the development application. I accept none of those ground a reason for the refusal of the development application.
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)).
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(1) of the EPA Act.
The Court notes that:
1. Penrith City Council as the relevant consent authority under s 38(1) of the Environmental Planning and Assessment Regulation 2021, approves the Applicant's application to amend development application DA/22/1188 in accordance with the following plans:
1. Proposed stormwater drainage plans prepared by Deboke Engineering Consultants reference 20220436-s34-SW-DWG-08 drawings S101, S200, S201, S202, S203, S300, S301, S302, S303, S304, S305 and S400 all revision 08;
2. Proposed civil plans prepared by Deboke Engineering Consultants reference 20220436-S34-CIV-DWG-04, S101, S200, S300, S400 and S500 all revision 04;
3. Aboricultural Impact Assessment and Tree Management Plan prepared by Horticultural Management Services dated 5 December 2023, Version 10.
The Court orders that:
1. The appeal is upheld.
2. Development application DA/22/1188 for the demolition of existing structures, tree removal and construction of a child care facility for 98 children with basement parking and associated works at Lots 20 and 21 DP 206813, 36 and 38 Leonard Street, Colyton NSW 2760 is determined by the granting of development consent, subject to the conditions in Annexure A.
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Decision last updated: 21 December 2023