Australia, June 20 -- New South Wales Land and Environment Court issued text of the following judgement on May 19:

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of development application DA 364/2023. The development application seeks consent for alterations and additions to, and change of use of the ground floor of, an existing residential flat building for an 89-place childcare centre. The development is proposed at 40 Spofforth Street, Cremorne (SP 13019).

2. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court 1979 (LEC Act). The conciliation conference commenced on 18 February 2025. The conciliation conference was adjourned to provide the parties the opportunity to seek to resolve their dispute, however the conciliation was terminated on 31 March 2025 and the matter was listed for hearing.

3. Prior to the hearing the parties advised the Court they had reached agreement, and the Court arranged a further conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 2 May 2025. I presided over the further conciliation conference. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. This agreement meets the first condition to the exercise of power and obligation of a Commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 ("McMillan") at [51].

4. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions (McMillan at [51]). I form this state of satisfaction on the basis that:

1) The development application is lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2) The development application was notified in accordance with the North Sydney Council Community Engagement Policy from 19 January to 9 February 2024, from 19 July to 6 August 2024 and 27 March and 10 April 2025. Submissions were received in response to the preceding periods of notification of the development application. I am satisfied that the issues raised in the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3) Chapter 4 (Remediation of land) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the land. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. The site has previously been used for residential purposes. A Preliminary Site Investigation (PSI) Report was prepared by CEC Geotechnical Pty Ltd and forms part of the development application. The PSI concludes that the site is suitable for the proposed development in its current state, subject to some nominated conditions. Those conditions have been included in the annexed conditions of consent. I am satisfied that the site will be suitable for the purpose of the development application.

4) State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the Site. Further, pursuant to s 2.7 of SEPP BC, a permit or approval to clear vegetation is not required under this Chapter if it is clearing of a kind that is authorised under the Local Land Services Act 2013, s 60O or Pt 5B. This exemption includes any clearing authorised by a development consent under Pt 4 of the EPA Act and therefore the proposed tree removal under this application is not subject to the provisions of SEPP BC.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196d1160810d8b89f3a965b0)

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