Z Boys Pty Ltd v City of Parramatta Council

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.15; Sch 1 Div 2 cl 7
Land and Environment Court Act 1979, s 34
Education and Care Services National Regulations 2011
Environmental Planning and Assessment Regulation 2021, s 38
Parramatta Local Environmental Plan 2023, cll 2.2, 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.8
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Pt 6.2, ss 6.6, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, Ch 3
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, Pt 3.3 ss 3.23, 3.26

Texts Cited: Parramatta Development Control Plan 2023
Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

Category: Principal judgment

Parties: Z Boys Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation: Counsel:
T Poisel (Applicant)
A Guy (Solicitor) (Respondent)
Solicitors:
Fortis Law (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2024/229702

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No DA/183/2024 (the DA) for the demolition of all existing structures across three allotments, tree removal and construction of a three-storey, 120 place child care centre with basement carparking and associated landscaping, and amalgamation of three lots at land legally identified as Lots 26A & 27A in Deposited Plan 417165 and Lot 28 in Deposited Plan 1620, known as 23-27 Dixon Street, Parramatta (the site).

2. The DA was lodged with the Respondent on 27 March 2024. The Applicant lodged a Class 1 Application with the Court on 21 June 2024. The Respondent lodged its Statement of Facts and Contentions (the SOFAC) with the Court on 30 July 2024.

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 26 November 2024. I presided over the conciliation conference, which began with an on-site view. Seven submissions were made against the proposal, however no submitters attended the on-site view.

4. The s 34 conciliation conference was adjourned to 20 December 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 twice to enable the parties to come to an agreement over the proposed development.

5. At the initial conciliation conference the parties indicated that they considered that they could reach 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 and amended plans (the amended DA) as agreed between the parties was filed with the Court on 13 March 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

7. The DA, as amended, seeks consent for the demolition of existing structures and construction of a two-storey, 108 place child care facility with basement car parking for 26 vehicles The changes made to the DA include the reduction in child care place numbers from 120 to 108, with associated changes to the car parking and design of the proposed development. There are a number of changes to the built form of the proposed development now incorporated in the design arising from these changes and included in the amended plans as follows:

8. Basement, ground and first floor layouts redesigned;

9. Pedestrian entry redesigned and relocated to ground floor level;

10. Southern and western acoustic fencing moved to boundary;

11. First floor setback increased to 6m from boundary;

12. Improvements to façade articulation;

13. Ramp redesigned;

14. Bin room relocated; and

15. Stormwater redesigned.

16. 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.

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

18. 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 Applicant is the owner of Lot 27A in Deposited Plan 417165, and that owner’s consent has been obtained from the owners of Lot 26A in Deposited Plan 417165 and Lot 28 in Deposited Plan 1620 for the lodging of the DA.

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

12. The DA was publicly notified to the adjoining and surrounding properties between 4 April 2024 and 26 April 2024. Six submissions were received in response to the notification of the DA.

13. The parties advise that the amended DA was not re-notified as the relevant officer of the Respondent has formed the opinion that the environmental impact of the amendments will be the same or lesser than the original proposal and that the impact on the owners and occupiers of adjoining land will not be detrimentally affected in any manner.

14. The parties confirm that the objectors’ submissions have been considered and addressed by the amended DA.

Conditions

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

Parramatta Local Environmental Plan 2023

16. The Parramatta Local Environmental Plan 2023 (the LEP) is the relevant local environmental planning instrument that applies to the site. Under the LEP provisions:

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

(a) Pursuant to cl 2.3 of the LEP the proposed development for centre-based child care facilities is permissible with consent in the R4 zone; (b) The zone objectives for the R4 zone in the Land Use Table in the LEP include:

“To enable other land uses that provide facilities or services to meet the day to day needs of residents.”

(c) 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. Clause 2.7 of the LEP provides that the demolition of a building or work requires development consent;
3. Pursuant to cl 4.3 of the LEP the maximum height of buildings on the site is 11m. The amended DA proposes a building height of 10.4m, complying with cl 4.3;
4. Pursuant to cl 4.4 of the LEP, the site has a prescribed maximum Floor space ratio (FSR) of 0.8:1. The amended DA proposes a FSR of 0.43:1, complying with cl 4.4 of the LEP;
5. Clause 5.10 of the LEP relates to heritage conservation. The parties submit that the site is not listed as a heritage item nor is it located within a heritage conservation area, however there are local heritage items located near the site. The parties advise that the proposed development will not impact upon the heritage significance given the separation between the heritage item(s) and the site;
6. The parties advise that the site is not identified as being in a flood prone area under cl 5.21 of the LEP;
7. Clause 6.1 of the LEP relates to acid sulfate soils. The site is impacted by Class 5 acid sulfate soils. The parties advise that the Applicant has undertaken testing for acid sulfate soils which concluded that there was no evidence of the presence of actual acid sulfate soils or potential acid sulfate soils within the site (refer to par [20(4)] below);
8. Clause 6.2 of the LEP relates to earthworks. The parties advise that the proposed development includes earthworks in association with the excavation of a basement, and that the Court can be satisfied of the matters for consideration in cl 6.2(3) of the LEP;
9. Clause 6.3 of the LEP relates to biodiversity. The parties advise that the site is not identified as “Biodiversity” on the Natural Resources Map in Cl 6.3 of the LEP;
10. Clause 6.4 of the LEP relates to riparian land and waterways. The parties advise that the site is not identified as “Riparian land and waterways” on the Natural Resources Map in cl 6.4 of the LEP;
11. Clause 6.5 of the LEP relates to stormwater management. The parties advise that the proposed development on the site adopts stormwater measures to maximise the use of water and adopts on-site stormwater retention in accordance with cl 6.5 of the LEP;
12. Clause 6.6 of the LEP relates to the foreshore area. The parties advise that cl 6.6 of the LEP does not apply to the site as it is not within close proximity of the foreshore and is not located within the foreshore building line on the Foreshore Building Line Map in the LEP; and
13. Clause 6.8 of the LEP relates to landslide risk. The parties advise that the site the Site is not identified as being subject to landslide risk under cl 6.8 of the LEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

17. The amended DA proposes removal of trees to facilitate the proposed development. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the preservation of trees and other vegetation in non-rural areas of the State.

18. The parties advise that:

19. The proposed development is in a residential area, with few trees on site to be removed, and appropriate compensatory planting to be provided; and

20. The proposed development will also incorporate high quality landscape embellishment works which will reduce the bulk and scale of the development, soften the built form, and assist in maintaining privacy to neighbouring properties.

21. Chapter 6 of the Biodiversity SEPP applies to the proposed development as the site is located within the Sydney Harbour Catchment. The Biodiversity SEPP seeks to manage and promote integrated catchment management policies. The parties advise that:

22. Part 6.2 of the Biodiversity SEPP provides jurisdictional perquisites to the grant of consent to development in a regulated catchment, which are set out in ss 6.6 and 6.9, including whether the development will have a neutral or beneficial effect on the quality of water entering a waterway, and whether the development will increase the amount of stormwater run-off from the site;

23. The proposed development will not detract from these principles given the nature of the development, environmental safeguards proposed, including detailed drainage concepts and erosion and sediment controls;

24. The proposed development adopts water sensitive urban design features, and an on-site detention system; and

25. As the proposed development is not likely to have an adverse impact on land in any adjacent or downstream local government areas, the City of Parramatta (the Council) is not required to consult with other Councils in accordance with section 6.10 of the Biodiversity SEPP.

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. The parties advise that the Applicant has undertaken a Preliminary Site Investigation Report (PSI) dated 7 November 2023 prepared by Capital Engineering Consultants Geotechnical (CEGG), and that the Court can be satisfied that consent can be granted because the PSI confirms and recommends:

21. A site investigation was undertaken on 16 October 2023;

22. During the site inspection, CECG did not observe tilled soils, and the risk of contamination associated with market gardening on the site was assessed to be negligible;

23. The site is suitable for the proposed development and land use, providing that the recommendation contained in the PSI are implemented, including a HAZMAT assessment by a licensed assessor prior to the demolition of buildings on site and clearance of vegetation; and

24. An Acid Sulfate Soil Investigation and Management Plan Report has been prepared which confirms that soil sample testing undertaken did not indicate the presence of acid or potential acid sulfate soils.

25. 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 (Sustainable Buildings) 2022

22. The State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) came into effect on 1 October 2023 and repealed the State Environmental Planning Policy (BASIX) 2004. Chapter 3 of the Sustainable Buildings SEPP contains standards for non-residential developments involving the erection of a new building with an estimated development cost of $5 million or more.

23. The Sustainable Buildings SEPP is not applicable to the proposed development as its capital investment value is not more than $5 million. The DA states that the estimated cost of work/development (including GST) is $4,231,388.70.

State Environment Planning Policy (Transport and Infrastructure) 2021

24. Chapter 3 of the State Environment Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW and 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 the proposed development. The parties advise that:

25. 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;

26. Section 3.26 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. Section 3.26(2) of the Transport and Infrastructure SEPP sets out non-discretionary development standards for the purpose of s 4.15(2) and s 4.15(3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) of the Transport and Infrastructure SEPP provides the requirements for indoor or outdoor space;

27. The proposed development provides 3.44m2 of unencumbered indoor play space and 8.36m2 of unencumbered outdoor play space per child, which exceeds the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations (the Regulations), which require 3.25m2 of unencumbered indoor play space and 7m2 of unencumbered outdoor play space; and

28. The proposed development 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

25. The Regulations provide extensive controls and requirements in addition to that of Local Environmental Plans and Development Control Plans which include licensing and approvals processes, including documentation requirements, facilities and equipment requirements, staffing requirements, child number requirements, operational requirements, administrative requirements, and probity check requirements.

26. The parties advise that compliance with the Regulation is set out in the Statement of Environmental Effects (the SEE) submitted with the DA.

Child Care Planning Guideline 2021

27. The Department of Planning, Industry and Environment, Child Care Planning Guideline 2021 (the Guideline) 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 Guideline before determining a development application.

28. The parties advise that compliance with the Guideline is addressed in the SEE.

Parramatta Development Control Plan 2023

29. The Parramatta Development Control Plan 2023 (the DCP) applies to the site; and the parties advise that an assessment of the proposed development against the relevant provisions of the DCP is set out in the in the SEE.

Conclusion

30. Having considered the advice of the parties provided above at [11]-[29], I am satisfied that:

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

32. 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

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

34. 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.

35. 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.

36. The Court notes:

37. That the 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 DA/183/2024 made on 13 March 2025 to rely on the documents and plans specified below (the amended development application):

| Document | Ref No. | Prepared by | Rev | Date | | Architectural Plans | | Cover Sheet | 00 | Baini Design | E | 6 Feb 2025 | | Compliance Table, Location Plan | 01 | Baini Design | E | 6 Feb 2025 | | Site Context Plan | 02 | Baini Design | E | 6 Feb 2025 | | Site Analysis Plan | 03 | Baini Design | E | 6 Feb 2025 | | Shadow Diagrams | 04 | Baini Design | E | 6 Feb 2025 | | Site Plan | 05 | Baini Design | E | 6 Feb 2025 | | Demolition Plan | 06 | Baini Design | E | 6 Feb 2025 | | Unnamed Basement Plan | - | Baini Design | E | 6 Feb 2025 | | Ground Floor Plan | 08 | Baini Design | E | 6 Feb 2025 | | First Floor Plan | 09 | Baini Design | E | 6 Feb 2025 | | Roof Plan | 10 | Baini Design | E | 6 Feb 2025 | | Sections | 11 | Baini Design | E | 6 Feb 2025 | | Driveway Sections | 12 | Baini Design | E | 6 Feb 2025 | | Building Elevations | 13 | Baini Design | E | 6 Feb 2025 | | Kitchen & Laundry Details | 14 | Baini Design | E | 6 Feb 2025 | | WC Details | 15 | Baini Design | E | 6 Feb 2025 | | Typical Nappy Change | 16 | Baini Design | E | 6 Feb 2025 | | Typical Bottle Prep Detail | 17 | Baini Design | E | 6 Feb 2025 | | Typical Craft Bench Detail | 18 | Baini Design | E | 6 Feb 2025 | | Schedule of Finishes | 19 | Baini Design | E | 6 Feb 2025 | | Calc Plan – Ground Floor | 21 | Baini Design | E | 6 Feb 2025 | | Calc Plan – First Floor | 22 | Baini Design | E | 6 Feb 2025 | | Indoor Calc Plan 0-2 | 23 | Baini Design | E | 6 Feb 2025 | | Indoor Calc Plan 2-3 | 24 | Baini Design | E | 6 Feb 2025 | | Indoor Calc Plan 3-5 | 28 | Baini Design | E | 6 Feb 2025 | | Solar Study Plan – Ground Floor | 29 | Baini Design | E | 6 Feb 2025 | | Solar Study Plan – First Floor | 30 | Baini Design | E | 6 Feb 2025 | | Fencing Detail – Ground Floor | 31 | Baini Design | E | 6 Feb 2025 | | Fencing Detail – First Floor | 32 | Baini Design | E | 6 Feb 2025 | | Landscape Plan | | Landscape Concept – Ground Floor | 01 | Outside In Design Group | D | 14 Feb 2025 | | Landscape Concept – First Floor | 02 | Outside In Design Group | D | 14 Feb 2025 | | Stormwater Management Plan | | Stormwater Layout Plan – Cover Sheet | SW001 | Capital Engineering Consultants | D | 14 Feb 2025 | | Stormwater Layout Plan – Basement Floor Plan, Notes & Details | SW010 | Capital Engineering Consultants | D | 14 Feb 2025 | | Stormwater Layout Plan – Ground Floor Plan, Notes & Details | SW020 | Capital Engineering Consultants | D | 14 Feb 2025 | | OSD Tank Plan & Section Details | SW021 | Capital Engineering Consultants | D | 14 Feb 2025 | | WSUD Details | SW022 | Capital Engineering Consultants | D | 14 Feb 2025 | | Stormwater Layout Plan – First Floor Plan, Notes and Details | SW030 | Capital Engineering Consultants | D | 14 Feb 2025 | | Stormwater Layout Plan – Roof Plan, Notes & Details | SW040 | Capital Engineering Consultants | D | 14 Feb 2025 | | Erosion & Sediment Control Plan, Notes & Details | ER001 | Capital Engineering Consultants | D | 14 Feb 2025 | | Flood Emergency Response Plan | Capital Engineering Consultants | A | 12 Dec 2024 | | Addendum Traffic & Parking Report | Hemanote Consultants | - | 14 Feb 2025 | | Plan of Management | Think Planners | 4 | Feb 2025 | | Amended Environmental Noise Impact Assessment | Day Design Pty Ltd | B | 28 Feb 2025 | | Survey Plan | 223044 | Frankham Engineering Surveys | A | 12 Sep 2024 | | Arborist Supplementary Advice | Creative Planning Solutions | - | 3 Oct 2024 | | Owners Consent | - | - | 19 Feb 2025 | | Acid Sulfate Soil Investigation and Management Plan Report | CEC Geotechnical | Original | 5 Mar 2025 |

Orders

34. The Court orders:

35. 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 amount of $6,000 to be paid within 21 days of the date of this order.

36. The appeal is upheld.

37. Development Application DA183/2024, as amended, for the demolition of existing structures and construction of a two-storey, 108 place child care facility with basement car parking for 26 vehicles at 23 to 27 Dixon Street, Parramatta, NSW, 2150, legally identified as Lots 26A and 27A in Deposited Plan 417165 and Lot 28 in Deposited Plan 1620, is determined by the grant of development consent, subject to the conditions included in Annexure A.

G Kullen

Acting Commissioner of the Court

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Annexure A.313 KB.pdf