Australia, June 27 -- New South Wales Land and Environment Court issued text of the following judgement on May 27:

1. COMMISSIONER: These proceedings, brought by the applicant under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA-2022/218 (DA) by Bayside Council (Council). The DA seeks consent for a childcare facility and associated development at Lot A and Lot B in Deposited Plan 398234, being 21 & 23 Sanoni Avenue, Sandringham (site). The facility would be two storeys in height and have capacity for 38 children. It would operate from 7:00am to 6:00pm Monday to Friday. Associated development includes demolition of existing structures, certain nominated tree removal, nominated fencing, landscaping, car parking and signage.

2. 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 20 May 2025. I presided over the conciliation conference. At the conference, the parties detailed the particulars of their agreement in relation to the proceedings, which involved certain amendments to the original application filed with the Court.

3. The parties' decision would have the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA, as amended, and subject to agreed conditions. Under subs 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.

4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties outlined matters of relevance through an agreed submission on jurisdictional prerequisites (SJP) dated 20 May 2025. The SJP explained how the parties believed various matters requiring a positive finding on the part of the Court have, or could be, satisfied. Below, I attend to required considerations mindful of this advice from the parties.

Jurisdiction

State Environmental Planning Policy (Transport and Infrastructure) 2021

5. Chapter 3 deals with childcare facilities. In relation to s 3.22, I accept the advice of the parties that the DA, as amended, complies with reg 107 (indoor unencumbered space requirements) and reg 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations. Therefore, the parties agree, and I accept, that no concurrence from the relevant regulatory authority is required. I further note that, relevant to s 3.25, the floor space ratio (FSR) for the building on the site of the facility does not exceed 0.5:1 (the parties advise the proposed FSR is 0.38:1).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196f5a1c08773c003d67e5bf)

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