This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent's refusal of the applicant's development application No. 89/2024/HA (Development Application) seeking consent for the demolition of existing structures and construction of a three storey centre based child care facility for 50 children with basement parking for 14 vehicles and removal of 15 trees on land legally described as Lot 39 in Deposited Plan 259386 and known as 25 Astoria Park Road, Baulkham Hills (Subject Land).
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
[2]
The Development Application
The Development Application was lodged with the respondent on 13 July 2023.
On 18 October 2023, The Hills Local Planning Panel refused the Development Application.
On 6 December 2023, the applicant commenced proceedings in relation to the refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.
The Court arranged a conciliation conference under s 34 of LEC Act between the parties, which was held on 21 June 2024 and adjourned on multiple occasions. The conciliation conference was terminated on 28 August 2024 and the matter listed for hearing.
Prior to the hearing, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Amended plans and further documents were filed with the Court on 11 October 2024 (Amended Development Application) cited at [50]. The Amended Development Application primarily comprised:
1. reduction in the number of child places from 50 to 45;
2. widening of the easement on the western side of the Subject Land from 2.5m to 3m;
3. updated driveway section with additional head clearance details;
4. further articulation of the eastern elevation;
5. modification of basement layout and reduction of basement footprint;
6. increased setbacks from the rear boundary;
7. deletion of outdoor play area that was proposed between the rear boundary and building and landscaping proposed instead; and
8. modifications of acoustic barriers.
The decision agreed upon by the parties is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.
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.
[3]
Jurisdictional considerations
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 for the reasons that follow.
[4]
Owners' consent
The applicant is the registered proprietor of the Subject Land and provided owners consent to the Development Application as lodged (see Tab 1 of the Class 1 Application).
[5]
State Environmental Planning Policy (Resilience and Hazards) 2021
Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:
1. it has considered whether the land is contaminated; and
2. 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, and
3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
Section 4.6(2) of the RH SEPP provides that "before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines". Relevantly, subsection (4)(c) includes land to the extent to which it is proposed to carry out development for child care purposes in relation to which there is no (or incomplete) knowledge as to whether certain development for a purpose of carrying out activities that may cause contamination had been carried out and on which it would have been lawful to carry out such development.
The Amended Development Application includes a Preliminary Site Investigation prepared by Environmental Consulting Services dated 21 March 2023 (PSI) (see Tab 17 of the Class 1 Application). The PSI concludes that the Subject Land is suitable for the proposed development in its current state and recommends that any material to be excavated and disposed of off-site should be classified in accordance with the NSW EPA Waste Classification Guidelines 2014. This requirement is incorporated at Condition 25 of the Agreed Conditions.
The parties agree that the requirements of s 4.6(1) and (2) of the RH SEPP are satisfied.
Having regard to the PSI and Agreed Conditions, I am satisfied that the Subject Land is suitable for the purposes for which development consent is sought for the purposes of s 4.6 of the RH SEPP.
[6]
State Environmental Planning Policy (Biodiversity and Conservation) 2021
The Amended Development Application proposes the removal of trees to facilitate the proposed development.
The parties agree that as the Amended Development Application seeks development consent to remove the identified trees, Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) relating to permits, is not enlivened due to the BC SEPP regulating a different and separate scheme to seeking development consent under the EPA Act (see Stewart v Inner West Council [2023] NSWLEC 136).
The parties agree, and I accept, that there is no matter that would prevent consent being granted for the removal of the identified trees proposed to facilitate the proposed development.
[7]
State Environmental Planning Policy (Transport and Infrastructure) 2021
Section 3.22 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP) requires concurrence of the Regulatory Authority in the event that the proposed development does not comply with the unencumbered indoor or unencumbered outdoor space requirements of regulations 107 and 108 of the Education and Care Services National Regulations.
The proposed development will provide for 45 children. Under regulation 107, the proposed development requires 146.25m2 of unencumbered indoor space and 175.05m2 is provided. Under regulation 108, the proposed development requires 315m2 of unencumbered outdoor space and 358.6m2 is provided. As the proposed development complies with regulations 107 and 108, concurrence from the Regulatory Authority is not required.
Section 3.23 of the TISEPP relevantly provides that before determining a development application for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline (Guidelines) in relation to the proposed development.
The proposed development's compliance with the Guidelines has been addressed in the Statement of Environmental Effects prepared by Planning Ingenuity dated 7 July 2023 (SEE) (see pp 25-46).
In determining the Amended Development Application, I confirm that I have taken into consideration the applicable provisions of the Guidelines in relation to the proposed development for the purpose of s 3.23 of the TISEPP.
Section 3.25 of the TISEPP provides that development consent must not be granted for the purposes of a centre-based childcare facility in Zone R2 Low Density Residential if the floor space ratio (FSR) for the building on the site of the facility exceeds 0.5:1. However, this does not apply if another environmental planning instrument or a development control plan sets a maximum FSR for the centre-based child care facility. The Hills Local Environmental Plan 2018 (HLEP) does not impose any FSR control. The proposed development has a gross floor area of 330.09m2 or 0.34:1 FSR which therefore complies with s 3.25 of the TISEPP.
Section 3.26 of the TISEPP sets out non-discretionary development standards for the purpose of s 4.15(2) and (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) provides the requirements for indoor or outdoor space.
The Amended Development Application provides at least 3.25m2 of unencumbered indoor play space and at least 7m2 of unencumbered outdoor play space per child which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Services National Regulations.
In determining the Amended Development Application, I am satisfied that the matters outlined in Ch 3 of the TISEPP have been considered and addressed.
[8]
Education and Care Services National Regulations
The Education and Care Service National Regulations provides extensive controls and requirements in addition to those set out in the TISEPP and HLEP.
Compliance with the Education and Care Services National Regulations is assessed at pp 40-46 of the Amended SEE.
[9]
The Hills Local Environmental Plan 2019
The Subject Land is zoned R2 Low Density Residential under the HLEP. Accordingly, the proposed development, being a "centre-based child care facility" is permissible with consent in the R2 zone. I have had regard to the zone objectives which are extracted below:
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 maintain the existing low density residential character of the area.
An assessment of the proposed development against the R2 zone objectives is set out at pp 11 and 48 of the SEE. The parties agree that the Amended Development Application is consistent with the objectives of the R2 zone.
Clause 4.3 of the HLEP prescribes a maximum building height of 9m for the Subject Land (Height Standard). The Amended Development Application seeks a maximum height of 9.35m. the applicant has prepared a written request, pursuant to cl 4.6 of the HLEP which seeks to justify the Height Standard (Height Request).
The Height Request provides a detailed assessment of the Amended Development Application's compliance with the matters raised in cl 4.6 of the HLEP (as it applied at the date of lodgement) and concludes that:
1. Compliance with the Height Standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the HLEP), because the development achieves the objectives of the Height Standard notwithstanding the breach.
2. There are sufficient environmental planning grounds to justify contravening the Height Standard (pursuant to cl 4.6(3)(b) of the HLEP), including that the breach is considered minor and relates only to the lift overrun, will not result in any material adverse impacts, and does not contribute to gross floor area.
3. The proposed development will be in the public interest because it is consistent with the objectives of the Height Standard and the objectives of the R2 zone in which the development is proposed to be carried out (pursuant to cl 4.6(4)(a)(ii) of the HLEP).
The parties submit and I accept that the Height Request addresses the matters required to be demonstrated by cl 4.6(3) of the HLEP and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the Height Standard and the objectives for development in the R2 zone. The respondent does not contend that the contravention of the Height Standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standards pursuant to cl 4.6(5) of the HLEP.
I am satisfied under cl 4.6(4) that the Height Request has adequately addressed the matters required to be demonstrated by cl 4.6(3) and that the development proposed in the Amended Development Application will be in the public interest because it is consistent with the objectives of the Height Standard set out in cl 4.3(1) and the objectives for development in the R2 zone, for the reasons given in the Height Request.
I have also considered whether the contravention of the Height Standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standards, pursuant to cl 4.6(5) of the HLEP. I find no grounds on which the Court should not uphold the Height Request.
For the purposes of cl 4.4 of the HLEP, the parties agree that no maximum FSR applies to the Subject Land.
Pursuant to cl 5.21 of the HLEP, development consent must not be granted to development on land the consent authority considered to be within the flood planning area unless the consent authority is satisfied with respect to, and has considered, specified matters. The parties agree that the Subject Land is within the flood planning area. The parties agree that the Court would be satisfied with respect to the matters contained in cl 5.21(2) and that the matters contained in cl 5.21(3) have been considered, having regard to the following:
1. stormwater plans and flood mitigation plans prepared by Hydracor Consultants Engineers Pty Ltd dated 6 September 2024 (Stormwater and Flood Mitigation Plans);
2. Updated Flood Investigation Report, including Flood Emergency Response Plan, prepared by Hydracor Consulting Engineers dated 6 September 2024 (Floor Investigation Report);
3. Evacuation Diagrams prepared by FBP dated 18 June 2024;
4. Emergency Management Plan prepared by FBP dated 20 June 2024; and
5. the Agreed Conditions of consent (see Conditions 1, 50, 51, 52, 57, 90 and 119).
In determining the Amended Development Application, I confirm that I have considered the matters required to be considered pursuant to cl 5.21(3) and am satisfied of the matters specified in cl 5.21(2) of the HLEP.
Pursuant to cl 7.2 of the HLEP, before granting development consent for earthworks, the consent authority must consider specified matters. The parties agree that the Court would be satisfied that the matters listed in cl 7.2 of the HLEP have been adequately considered, having regard to the following:
1. Cut 3D Diagram and schedule contained in Architectural Plan No DA02.01, issue E, prepared by ArtMade Architects, dated 9 September 2024;
2. Clause 7.2 Assessment prepared by Planning Ingenuity;
3. Stormwater and Flood Mitigation Plans;
4. Flood Investigation Report;
5. PSI; and
6. The Agreed Conditions of consent (see Conditions 1, 12, 21, 24, 25, 48, 50, 51, 52, 77, 78, 80, 90 and 119).
In determining the Amended Development Application, I confirm that I have considered the matters required to be considered pursuant to cl 7.2(3) of the HELP.
[10]
The Hills Development Control Plan 2012
The parties are satisfied that all relevant provisions of The Hills Development Control Plan 2012 have been taken into consideration in the assessment and determination of the Amended Development Application.
[11]
Remaining matters under s 4.15(1) of the EPA Act
The parties agree that the matters listed in s 4.15(1)(b), (c) and (e) are considered generally in the SEE and there is no impediment to the approval of the Amended Development application having regard to those matters.
In respect of s 4.15(1)(d) of the EPA Act, the Development Application was publicly exhibited between 14 July and 4 August 2023. 81 written submissions were received, including one submission in support and a petition objecting to the proposal with 164 signatures.
I am satisfied that the written submissions have been taken into consideration in the assessment and determination of the Amended Development Application.
[12]
Conclusion
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.
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.
The Court notes that:
1. The respondent, as the relevant consent authority, has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application No 89/2024/HA (PAN-350475) in accordance with the following amended plans and documents:
1. The following amended architectural plans prepared by ArtMade Architects:
Drawing No. Drawing Name Date
DA00.00, Issue G Cover Page 9.09.24
DA02.01, Issue E Site Plan / Demolition 9.09.24
DA03.01, Issue D Basement Floor Plan 23.08.24
DA03.02, Issue G Ground Floor Plan 9.09.24
DA03.03, Issue D Level 1 Floor Plan 23.08.24
DA03.04, Issue C Calculations 23.08.24
DA04.01, Issue E External Elevations & Finishes 8.08.24
DA05.01, Issue E Sections & Fence Details 9.09.24
DA06.02, Issue B Shadow Diagrams 7.06.24
DA06.03, Issue C Outdoor Play Area Calcs & Sun Eye Views 23.08.24
DA10.10, Issue B Kitchen Details 7.06.24
[13]
Schedule of Amendments prepared by ArtMade Architects dated 19 September 2024.
2. Plan showing Detailed Topographic Survey of 25 Astoria Park Road, Baulkham Hills NSW 2153 (Lot 39 in DP259386), Revision B, prepared by Shepherd Surveys dated 4 July 2024.
3. The following amended landscape plans prepared by Greenscape:
Drawing No. Drawing Name Date
DA_01, Revision F Context Plan 09.08.24
DA_02, Revision F Ground Floor Playscape Plan 09.08.24
DA_03, Revision F Ground Floor Planting & Level Plan 09.08.24
DA_04, Revision C First Floor Playscape & Planting Plan 14.06.24
DA_05, Revision C Precedental Images 14.06.24
DA_06, Revision F Planting Palette 09.08.24
[14]
The following amended stormwater plans prepared by Hydracor Consultants Engineers Pty Ltd:
Drawing No. Drawing Name Date
C1, Issue C Cover Sheet & Notes 06.09.24
C2, Issue C Stormwater Management Plan & Section 06.09.24
C3, Issue C Stormwater Management Details Sheet No. 1 06.09.24
C7, Issue C Erosion & Sediment Control Plan 06.09.24
C8, Issue C Erosion & Sediment Control Notes & Details 06.09.24
C9, Issue C Rainwater Reuse Tank Details Sheet 06.09.24
[15]
The following flood mitigation plans prepared by Hydracor Consultants Engineers Pty Ltd:
Drawing No. Drawing Name Date
FM1, Issue C Cover Sheet 06.09.24
FM2, Issue C Overall Site & Easement Plan 06.09.24
FM3, Issue C Flood Mitigation Plan Sheet No. 1 06.09.24
FM4, Issue C Flood Mitigation Plan Sheet No. 2 06.09.24
[16]
Updated Evacuation Diagrams prepared by FBP dated 18 June 2024.
2. Clause 4.6 Variation Statement prepared by Planning Ingenuity dated 13 June 2024.
3. Clause 7.2 Assessment prepared by Planning Ingenuity.
4. Updated Flood Investigation Report prepared by Hydracor Consulting Engineers dated 6 September 2024.
5. Updated Noise Impact Assessment prepared by Renzo Tonin & Associates dated 7 June 2024.
6. Updated Traffic and Parking Impact Assessment prepared by McLaren Traffic Engineering dated 16 July 2024.
7. Amended Waste Management Plan prepared by Dickens Solutions dated June 2024.
8. Updated Arboricultural Impact Assessment prepared by Creative Planning Solutions dated 10 September 2024.
9. Updated Plan of Management prepared by Z & M Development Group dated 30 August 2024.
10. Emergency Management Plan prepared by FBP dated 20 June 2024.
11. Updated Registered Quantity Surveyors Cost Report prepared by QPC & C Pty Limited dated 12 September 2024.
1. The applicant filed the amended plans and documents outlined above with the Court on 11 October 2024.
[17]
Orders
The Court orders that:
1. The applicant is to pay the respondent's costs thrown away by reason of the amendment of Development Application No. 89/2024/HA (PAN-350475) pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000 to be paid within 14 days of the date of these orders.
2. The appeal is upheld.
3. Development consent is granted to Development Application No. 89/2024/HA (PAN-350475), as amended, for the demolition of existing structures and construction of a centre-based child care facility at 25 Astoria Park Road, Baulkham Hills (Lot 39 in Deposited Plan 259386), subject to the conditions of consent in Annexure A.
[18]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 November 2024