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) against the deemed refusal of Development Application No DA/183/2024 (the DA) for the demolition of all existing structures across three allotments, tree removal and construction of a three-storey, 120 place child care centre with basement carparking and associated landscaping, and amalgamation of three lots at land legally identified as Lots 26A & 27A in Deposited Plan 417165 and Lot 28 in Deposited Plan 1620, known as 23-27 Dixon Street, Parramatta (the site).
2. The DA was lodged with the Respondent on 27 March 2024. The Applicant lodged a Class 1 Application with the Court on 21 June 2024. The Respondent lodged its Statement of Facts and Contentions (the SOFAC) with the Court on 30 July 2024.
3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 November 2024. I presided over the conciliation conference, which began with an on-site view. Seven submissions were made against the proposal, however no submitters attended the on-site view.
4. The s 34 conciliation conference was adjourned to 20 December 2024 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. The s 34 conciliation conference was further adjourned twice to enable the parties to come to an agreement over the proposed development.
5. At the initial conciliation conference the parties indicated that they considered that they could reach an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.
6. A signed s 34 agreement with Annexure A and amended plans (the amended DA) as agreed between the parties was filed with the Court on 13 March 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.
7. The DA, as amended, seeks consent for the demolition of existing structures and construction of a two-storey, 108 place child care facility with basement car parking for 26 vehicles The changes made to the DA include the reduction in child care place numbers from 120 to 108, with associated changes to the car parking and design of the proposed development. There are a number of changes to the built form of the proposed development now incorporated in the design arising from these changes and included in the amended plans as follows:
1) Basement, ground and first floor layouts redesigned;
2) Pedestrian entry redesigned and relocated to ground floor level;
3) Southern and western acoustic fencing moved to boundary;
4) First floor setback increased to 6m from boundary;
5) Improvements to facade articulation;
6) Ramp redesigned;
7) Bin room relocated; and
8) Stormwater redesigned.
8. 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. 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.
9. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.
10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows below.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196c2c0c26af8ab2bb633148)
Disclaimer: Curated by HT Syndication.
