Raland Construction Pty Ltd v Wollongong City Council [2022] NSWLEC 1741 (29 December 2022)

Last Updated: 29 December 2022

Land and Environment Court New South Wales

Case Name:	Raland Construction Pty Ltd v Wollongong City Council
Medium Neutral Citation:	[2022] NSWLEC 1741
Hearing Date(s):	Conciliation Conference 16 December 2022
Date of Orders:	29 December 2022
Decision Date:	29 December 2022
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The Applicant is to pay the Council’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $1,460 payable within 28 days of the making of the Court’s orders in accordance with this agreement. (2) The Appeal is upheld. (3) Development consent is granted to Development Application No. DA-2022/777, as amended, for the demolition of existing structures, the removal of an identified tree and the construction of a three storey centre-based child care facility for 86 children including at-grade parking on land legally described as Lot 300, in DP1282837 and known as 10 Osborne Street, Dapto, subject to the conditions at Annexure A.
Catchwords:	APPEAL – development application – centre-based child care facility – conciliation conference – agreement reached – orders made
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, cll 37, 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3 Wollongong Local Environmental Plan 2009, cll 7.5, 7.6
Category:	Principal judgment
Parties:	Raland Construction Pty Ltd (Applicant) Wollongong City Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) J Reilly (Solicitor) (Respondent) Solicitors: Macpherson Kelley (Applicant) Wollongong City Council (Respondent)
File Number(s):	2022/134096
Publication Restriction:	No

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a centre-based child care facility for 86 children at 10 Osborne Street, Dapto. The development application was lodged on 18 July 2022. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 December 2022. I presided over the conciliation conference.
3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 22 December 2022, following the Council’s approval of an application for an amendment to a development application pursuant to cll 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments to the development application increase the front setback to allow for greater landscaping, provide for a greater number of cots in a larger cot room, provide an area for rest in the office, delete the on-site detention tank and provide additional information to resolve the traffic and air quality contentions.
4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional pre-requisites about which the Court is required to be satisfied prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made 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:
   • The proposed development is for the purpose of centre-based child care facility, which is permissible with consent in the B6 Enterprise Corridor zone in which the site is located, pursuant to the Wollongong Local Environmental Plan 2009 (WLEP).
   • The proposed development complies with the applicable development standards for height and floor space ratio under the WLEP.
   • Although the site is identified as being affected by Class 5 acid sulfate soils in accordance with cl 7.5 of the WLEP, the proposed development is unlikely to lower the watertable, and therefore an acid sulfate soils management plan is not required.
   • The development application includes earthworks for the provision of the car parking at grade. Based on the Geotechnical report prepared by GCA Pty Ltd dated 20 June 2022 and the Jurisdictional Statement, I have considered the matters set out in cl 7.6(3) of the WLEP.
   • Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Based on the preliminary site investigation dated 7 December 2022 and the peer review of the same, I am satisfied that the site will be suitable for the proposed development.
   • Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the proposed development, and concerns educational establishments. In accordance with s 3.23 and based on the Statement of Environmental Effects dated 15 July 2022, I have considered the applicable provisions of the Child Care Planning Guideline.
6. 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)).
7. 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.
8. The Court notes that the Council, as the relevant consent authority, has consented (pursuant to cl 37 of the Environmental Planning and Assessment Regulation 2021) to the applicant amending the development application in accordance with the following amended plans and documents as described below:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1		Cover Page	Envision Group Pty Ltd
	DA 02 Revision K	Development Data		19 December 2022
	DA 03 Revision I	Location Plan		13 December 2022
	DA 04 Revision G	Site Analysis Plan		12 October 2022
	DA 05 Revision H	Site Demolition Plan		7 December 2022
	DA 06 Revision K	Floor Plan – Ground Floor		19 December 2022
	DA 07 Revision K	Floor Plan – Level 1		19 December 2022
	DA 08 Revision K	Floor Plan – Level 2		19 December 2022
	DA 09 Revision K	Roof Plan		19 December 2022
	DA 10 Revision K	North West and North East Elevation		19 December 2022
	DA 011 Revision K	South East and South West Elevation		19 December 2022
	DA 012 Revision K	Section A and Section B		19 December 2022
	DA 013 Revision K	Level 1 – Playspace Calculation		19 December 2022
	DA 014 Revision K	Level 2 – Playspace Calculation		19 December 2022
	DA 015 Revision G	Ground Floor – Evacuation Plan		12 October 2022
	DA 016 Revision G	Level 1 – Evacuation Plan		12 October 2022
	DA 017 Revision H	Level 2 – Evacuation Plan		7 December 2022
	DA 018 Revision H	Shadow Diagram		7 December 2022
	DA 019 Revision K	GFA Calculations		19 December 2022
	DA 020 Revision I	Landscape Calculations		13 December 2022
	DA 021 Revision K	Level 2 Shade Area Calculation		19 December 2022
Landscape Plan
2	L-01 Revision E	Landscape Concept	Outside In Design Group	8 November 2022
	L-02 Revision E	Landscape Concept
	L-03 Revision E	Elevations
Stormwater Concept Plans
3	Dwg No 000 Revision E	Cover Sheet Plan	Telford Civil	20 December 2022
	Dwg No 101 Revision E	Stormwater Concept Plan Ground Level Sheet 1 of 2		20 December 2022
	Dwg No 102 Revision E	Stormwater Concept Plan Ground Level Sheet 2 of 2		20 December 2022
	Dwg No 103 Revision E	Stormwater Concept Plan Level 1 & 2		20 December 2022
	Dwg No 104 Revision E	Roof Plan & Miscellaneous Details Sheet		20 December 2022
Reports / documents
4	Air Quality Impact Assessment – E2291-1-Rev A		Geotechnical Consultants Australia	9 December 2022
5	Letter of Response – Traffic – Reference 220892.01FA		McLaren Traffic Engineering	9 December 2022
6	Preliminary Site Investigation - E2290-1-Rev B		Geotechnical Consultants Australia	7 December 2022
7	CENVP-SC Review of Preliminary Site Investigation		Harwood Environmental Consultants	13 December 2022
8	Town Planning Matters – Response Letter		Think Planners	12 December 2022

9. The Court orders that:

(1) The Applicant is to pay the Council’s costs thrown away pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $1,460 payable within 28 days of the making of the Court’s orders in accordance with this agreement.

(2) The Appeal is upheld.

(3) Development consent is granted to Development Application No. DA-2022/777, as amended, for the demolition of existing structures, the removal of an identified tree and the construction of a three storey centre-based child care facility for 86 children including at-grade parking on land legally described as Lot 300, in DP1282837 and known as 10 Osborne Street, Dapto, subject to the conditions at Annexure A.

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Commissioner of the Court

Annexure A

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