Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

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 D/2024/783 (DA) by the Council of the City of Sydney (Council).

2. The applicant seeks consent for alterations and additions to the existing centre-based childcare facility and construction of a new building with basement car parking to be used as part of the centre-based childcare facility at 34-36 Dalmeny Avenue, Rosebery, legally described as Lot 627 and Lot 628 in Deposited Plan 7534 (site).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (Court Act), at which I presided. The conference was held on 25 February 2025.

4. Through the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the Court 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.

5. 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 matters the Court must consider prior to the grant of development consent. I have considered the contents of the 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 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. The Council, as the consent authority, pursuant to ss 37(1), 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) agreed to the applicant amending the Class 1 Application to rely on the following additional and amended materials:

Table omitted can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1967aca4553fb1b4d652d2ee)

Jurisdictional considerations

7. As the presiding Commissioner I am satisfied that the decision to grant development consent to the DA, as amended and subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I am satisfied that each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

State Environmental Planning Policy (Biodiversity and Conservation) 2021

8. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies as the proposal includes the removal of trees from within the site and the adjoining road reserve in Dalmeny Avenue (street trees).

9. I am satisfied on the basis of the arborist report and landscape plans lodged with the DA (Tabs 5 and 10 of the Class 1 Application) that the relevant matters under s 2.10 of the Biodiversity SEPP have been considered, including the impacts of the proposed tree removals on the heritage significance of the site, and that the proposed development is acceptable, subject to conditions.

State Environmental Planning Policy (Industry and Employment) 2021

10. Chapter 3 applies as the proposal includes signage. The Statement of Environmental Effects (Tab 17 of the Class 1 Application) includes a detailed assessment of the DA against the relevant objectives and assessment criteria. The amended proposal has reduced the amount of signage and is acceptable.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1967aca4553fb1b4d652d2ee)

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