Clutch Banana Queen Pty Ltd v Blacktown City Council [2022] NSWLEC 1551

Land and Environment Court New South Wales

Medium Neutral Citation: Clutch Banana Queen Pty Ltd v Blacktown City Council [2022] NSWLEC 1551 Hearing dates: Conciliation conference on 6 October 2022 Date of orders: 11 October 2022 Decision date: 11 October 2022 Jurisdiction: Class 1 Before: Walsh C Decision: See Orders at [25] Catchwords: DEVELOPMENT APPLICATION conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016 (NSW) Biodiversity Conservation Regulation 2017 (NSW) Blacktown Local Environmental Plan 2015, cll 2.3, 4.3, 5.21, 7.5 Education and Care Services National Regulations, regs 107, 108 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, ss 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 11 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021 ss 1.4, 2.48, 3.3, 3.22, 3.23, 3.26, Sch 9 Texts Cited: Blacktown Development Control Plan 2015 Child Care Planning Guideline, NSW Department of Planning and Environment, August 2017 Category: Principal judgment Parties: Clutch Banana Queen Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: M Jaku (Solicitor) (Applicant) J Smith (Respondent)

Solicitors: Jaku Legal (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2022/9693 Publication restriction: No

Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Blacktown City Council (Council) of Development Application No. DA-21-02053 (DA). The DA, before me now, seeks consent for construction of a three storey mixed-use development comprising of a café, 110 place childcare centre, gymnasium, and medical centre. The proposed development includes earthworks, tree removal, parking provision, stormwater drainage/engineering works, fencing and landscaping at 5 Aldgate Street Prospect, legally described as Lot 102 DP 801310 (Site).

Amendments 1. In regard to amendments to the DA, I note that there have been a number subsequent to the filing of the appeal with the Court. Most recently, Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant further amending the DA in accordance with the following documents: 1. The following amended architectural plans prepared by Janssen Designs: Drawing No. Drawing Title Date A006, Issue F Basement Plan 6 October 2022 A007, Issue F Basement Plan A 6 October 2022

1. The following updated landscape plans prepared by Canvas Landscape Architects: Drawing No. Drawing Title Date s.34-L101, Rev F Landscape Plan: Ground Fr 16 September 2022 s.34-L102, Rev F Landscape Plan: First Fr and Second Fr 16 September 2022 DA-L103, Rev F Landscape Typical Details & Maintenance Program 16 September 2022

1. The following updated stormwater plans prepared by Capital Engineering Consultants: Drawing No. Drawing Title Date SW001, Rev G Cover Sheet 26 September 2022 SW002, Rev G Site Locality Plan 26 September 2022 SW003, Rev G Existing Easements & Reservations Plan 26 September 2022 SW004, Rev G Existing Services Plan 26 September 2022 SW005, Rev G 2/@1050 DIA Council Pipeline – Long-Section & HGL 26 September 2022 SW006, Rev G @1350 DIA Council pipeline – Long-Section & HGL 26 September 2022 SW010, Rev G Basement Stormwater Plan 26 September 2022 SW011, Rev G Driveway Ramp Sections 26 September 2022 SW020, Rev G Ground Floor Plan Overall Layout 26 September 2022 SW021, Rev G Ground Floor – Part 1 26 September 2022 SW022, Rev G Ground Floor – Part 2 26 September 2022 SW023, Rev G Ground Floor – Part 3 26 September 2022 SW024, Rev G Ground Floor – Part 4 26 September 2022 SW025, Rev G OSD Tank 1 Plan & Section Details 26 September 2022 SW026, Rev G OSD Tank 2 Plan & Section Details 26 September 2022 SW027, Rev G OSD Tank 2 Plan & Section Details (Cont.) 26 September 2022 SW028, Rev G WSUD Catchment Plan & Treatment Details 26 September 2022 SW029, Rev G OSD Catchment Plan & Details 26 September 2022 SW030, Rev G Car Park Driveway Sections & Details 26 September 2022 SW031, Rev G Access Driveway Crossing Long-Sections 26 September 2022 SW032, Rev G Kerb & Retaining Wall Long-Sections 26 September 2022 ER001, Rev G Erosion & Sediment Control Plan, Notes & Details 26 September 2022

1. Biodiversity Development Assessment Report (Final) prepared by Molino Stewart Pty Limited and ecologique dated 20 September 2022. 1. I further note that, what I will henceforth refer to as, the "Further Amended DA" has been lodged onto the NSW planning portal on 6 October 2022, and the Applicant has filed the Further Amended DA with the Court on 6 October 2022.

Conciliation 1. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act) which was held on 6 October 2022. I presided over the conciliation conference. After the conciliation conference the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 2. This decision involved the Court upholding the appeal and granting conditional development consent to the Further Amended DA. 3. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties outlined jurisdictional matters of relevance (including through a statement of jurisdictional reasons dated 6 October 2022) and explained how they have been or could be satisfied. Below I give consideration to the jurisdictional issues, mindful of this statement.

Jurisdictional considerations

Biodiversity Conservation Act 2016 (NSW) and Biodiversity Conservation Regulation 2017 (NSW) 1. The Site is mapped by Council on both the Biodiversity Values Map and the Cumberland Plain Vegetation Map. Accordingly, the Further Amended DA's biodiversity impacts arising from proposed clearing of native vegetation from the Site have been assessed through application of the Biodiversity Assessment Method (BAM), in accordance with the Biodiversity Conservation Act 2016 (NSW) and Biodiversity Conservation Regulation 2017 (NSW). 2. The Applicant has submitted an amended Biodiversity Development Assessment Report (BDAR) which has been annexed to the Ecology Joint-Report (filed 26 September 2022) and the parties' biodiversity experts have agreed that the outputs from the BAM Calculator and the amended BDAR have satisfactorily addressed Council's ecological concerns. The amended BDAR (section 14.2) indicates that the Amended DA does not trigger an offset obligation.

State Environmental Planning Policies

State Environmental Planning Policy (Resilience and Hazards) 2021 1. Pursuant to s 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. The Applicant has submitted a Review of Previous Environmental Reports dated 2 September 2021. On the basis of this report and appropriate conditions of consent (Annexure A Conditions 6.0.1 and 6.0.4), I am satisfied that s 4.6 has been addressed and the land will be made to be suitable for the development in regard to potential contamination risks.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) 1. Pursuant to s 1.4, the Transport and Infrastructure SEPP applies to the Further Amended DA. I accept the advice of the parties that because the development is proposed to be carried out within an easement for electricity purposes, and in accordance with ss 2.48(1)(b)(i) and 2.48(2), written notice of the DA was given to Endeavour Energy. Endeavour Energy's requested conditions (response dated 14 July 2022) are incorporated in the agreed conditions of consent (Annexure A Condition 14). 2. Further, the proposed development is defined as a centre-based child care facility under s 3.3. I accept the agreed advice of the parties that the Further Amended DA complies with regs 107 and 108 of the Education and Care Services National Regulations, with respect to indoor and outdoor unencumbered space. Accordingly, concurrence from the Secretary of the Department of Education is not required under s 3.22 of the Transport and Infrastructure SEPP. 3. In accordance with Sch 9(3) and s 3.23, I accept the advice of the parties that the experts have given consideration to the applicable provisions of the Child Care Planning Guideline (2017) and they agree the Further Amended DA is acceptable on that front. I am also advised that the Further Amended DA complies with the non-discretionary development standards contained in s 3.26. 4. I accept the advice of the parties and am satisfied that the applicable provisions of the Transport and Infrastructure SEPP have been met with the Further Amended DA.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 11 Georges River applies to the Site. Chapter 11 aims to protect the environment of the Georges River system by ensuring that the impacts of future land uses are considered in a regional context. Sections 11.6 and 11.7 contain general and specific planning principles which must be considered by a consent authority in assessing a development application such as the Further Amended DA. I have given consideration to the nominated matters, relevantly.

Blacktown Local Environmental Plan 2015 (BLEP) 1. The proposed development is permissible with development consent in the B1 Neighbourhood Centre Zone. I have given consideration to the zone objectives pursuant to cl 2.3. 2. A maximum building height of 12m applies to the Site under cl 4.3. The Further Amended DA complies with the development standard with a maximum height of 11m. No maximum floor space ratio applies to the Site under BLEP. 3. I accept the advice of the parties that in accordance with cl 7.5, the following services that are essential to the development are available or adequate arrangements have been made to make them available when required: the supply of water, electricity, disposal and management of sewage, stormwater drainage or on-site conservation and suitable vehicle access. 4. In their statement of jurisdictional reasons, the parties advise that, with the additional stormwater and flooding information provided as part of the Further Amended DA, Council agrees that the requirements of cl 5.21(2) have been satisfied. In noting the findings of the relevant engineering experts, in particular, the last report filed on 28 September 2022, I agree that these requirements have been satisfied.

Other evaluation considerations under cl 4.15(1) of the EPA Act 1. Blacktown Development Control Plan 2015 (BDCP) applies to the Site. Council advises it has considered the BDCP in relation to the Further Amended DA. I too have considered the provisions of BDCP, which have from time to time come to attention in my participation in these proceedings. The requirements of s 4.15(1)(a)(iii) have been met. 2. In the statement of jurisdictional reasons, Council advises of the particulars of the notification process for the DA. I note this advice, including that the objecting submission from a party referenced in Council's Amended Statement of Facts and Contentions (ASOFAC) filed on 19 August 2022 was supplemented by a further submission from the same party indicating no objections when amendments to the initial proposal were further notified (Council's bundle filed on 4 October 2022 folio 707). I have taken into consideration these submissions in accordance with the requirement of s 4.15(1)(d)(iii). 3. I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e).

Conclusions 1. As jurisdictional requirements are met, the parties' decision is a decision that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. 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.

Orders 1. The Court Orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA-21-02053, as amended, for the construction of a three storey mixed-use development at 5 Aldgate Street, Prospect (Lot 102 in DP 801310) subject to the conditions set out in Annexure "A", comprising: 1. Ground floor café with a total GFA of 40m2; 2. Ground floor childcare centre accommodating 110 children (20 places for 0-2 years, 30 places for 2-3 years and 60 places for 3-5 years) incorporating provision of an outdoor play area (770m2) to operate 7am to 6pm Monday to Friday excluding public holidays; 3. First floor gymnasium with a floor area of 775m2 to operate 24 hours a day 7 days per week; 4. Medical centre comprising 5 consulting rooms, waiting area, administrative office and toilets located on the second floor with a floor area of 390m2; 5. 93 car parking spaces split between an at grade parking area (47 car parking spaces plus 2 loading bays) and a basement carpark (46 car parking spaces) accessed via Aldgate Street; and 6. Associated landscaping and stormwater drainage.

……………………

P Walsh

Commissioner of the Court

********** (Annexure A) 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: 11 October 2022