Abboud v Penrith City Council

[2025] NSWLEC 1191

Land and Environment Court

New South Wales

Medium Neutral Citation:

Abboud v Penrith City Council [2025] NSWLEC 1191

Hearing dates:

Conciliation Conference on 2 December 2024

Date of orders:

01 April 2025

Decision date:

01 April 2025

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No DA-23/0802, as amended, for the demolition of existing structures, tree removal, and construction of a two storey child care centre for 54 children with basement car parking and associated works on land legally described as Lot 2057 in Deposited Plan 255371 and known as 3 Blackwell Avenue, St Clair, NSW, 2759, is determined by the grant of development consent subject to the conditions at Annexure A.

(3) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $11,000 within 21 days of the date of these orders.

Catchwords:

DEVELOPMENT APPEAL – child care centre – urban heat – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 39

Education and Care Services National Regulations

Environmental Planning and Assessment Regulation 2021, s 38

Penrith Local Environmental Plan 2010, cll 2.3, 2.7, 4.3, 5.21

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 3.22

Texts Cited:

Child Care Planning Guidelines

Community Engagement Strategy and Community Participation Plan 2022-26

Penrith Development Control Plan 2014

Category:

Principal judgment

Parties:

Joe Abboud (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
D Le Breton (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2024/232514

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal by the Penrith City Council (the Council) of DA23/0802 (the Development Application) for the demolition of existing structures, tree removal and construction of a two storey child care centre for 54 children with basement car parking and associated works (the Proposed Development) at 3 Blackwell Avenue, St Clair, NSW, 2759 (the Site) being Lot 2057 in DP 255371 (the Site).

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 site and at Court. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court pursuant to s 39(2) of the LEC Act to uphold the class 1 appeal and grant development consent to the Proposed Development with conditions at Annexure A.

4. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.

Satisfaction as to Jurisdiction

5. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters.

6. The Applicant is the owner of the Site. The DA was made by Mr Zenere as agent for and with the written consent of the owner of the Site.

Referrals

7. On 17 July 2024, the DA was referred to the Department of Education pursuant to s 3.22 of the State Environmental Planning Policy (Transport and Infrastructure) 2021.

8. The DA originally involved an area of “simulated” outdoor play space on the first floor as part of the area was roofed, contained outer walls greater than 1.4 metres and the opening to the Blackwell Avenue is less than a third of the perimeter.

9. The Amended DA no longer proposes this simulated outdoor play space. Therefore, concurrence from the NSW Department of Education is not required.

Penrith Local Environmental Plan 2010

Zoning and Permissibility

10. The Site is zoned R2 Low Density Residential under the Penrith Local Environment Plan 2010 (PLEP).

11. “Centre-based child care facilities” are nominated as development which is permissible with consent in the R2 Zone. Demolition works are permissible with consent under cl 2.7 of the PLEP.

12. Clause 2.3 PLEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

13. To the extent that the R2 Zone objectives are relevant, the Amended DA is consistent with the objectives of the R2 Zone. The development provides essential child care services to meet the needs of the residents, which has been designed in keeping with the character of the area.

Principal development standards

14. Clause 4.3 (Height of Buildings) applies to the Site and prescribes a maximum building height of 8.5 metres under cl 4.3(2) of the PLEP. No part of the development exceeds the 8.5 metres limit when measured from existing ground level. There is no applicable floor space ratio under the PLEP.

Miscellaneous provisions

15. In relation to cl 5.21 (Flood Planning), the Site is not mapped as a Flood Planning Area under the PLEP. However, the Council’s Overland Flow Flood Overview Study shows the Site has the potential for overland flow along Blackwell Avenue and Bradman Avenue.

16. The Flood Impact Assessment prepared by Catchment Simulation Solutions dated 14 August 2024 (FIA) includes a discussion of the matters in cl 5.21 of the PLEP. The floor levels of the proposed development have been raised to consider the flood levels. The ground floor level within the childcare centre is located at 41.35 m AHD which is above the peak 1% AEP flood level and peak PMF level.

17. The Court is satisfied that the development is consistent with the matters in cl 5.21(2) and has considered the matters in cl 5.21(3) of the PLEP.

Additional PLEP clauses

18. The parties Statement at pars 37 to 43 summarises all further relevant clauses of the PLEP and I am satisfied with the parties analysis and accept that no jurisdictional impediments arise.

Urban Heat

19. In particular, with regard to cl 7.30 (Urban Heat) which applies to the Penrith Local Government Area given its Western Sydney location, the parties have set out the measures in the Amended DA that meet this requirement. See par 44 of the Statement.

20. Clause 7.30 (Urban Heat) requires the consent authority to be satisfied that planning and design measures are incorporated to reduce the urban heat island effect that achieve the matters in cl 7.30(3). The language of cl 7.30(3) requires consideration as to whether planning and design measures are incorporated to maximise green infrastructure and the other matters set out in the clause.

21. I accept the parties’ analysis and agreed position and am satisfied that ‘urban heat’ considerations have been considered and that the proposed development maximises green infrastructure and incorporates planning and design measures to reduce the urban heat island effect.

State Environmental Planning Policies (SEPPs)

22. I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in detail in the parties’ Statement, and agree with the parties conclusions that no jurisdictional impediments arise pursuant to:

1. State Environmental Planning Policy (Biodiversity and Conservation) 2021

2. State Environmental Planning Policy (Resilience and Hazards) 2021

3. State Environmental Planning Policy (Sustainable Buildings) 2022

Child Care Planning Guidelines

23. Compliance with the Child Care Planning Guidelines is addressed in the Applicants Statement of Environmental Effects (SEE) at pp 36 to 61 and filed in the Court.

Education and Care Services National Regulations

24. The Education and Care Services National Regulations provides extensive controls and requirements in addition to that of the SEPPs, PLEP and Penrith Development Control Plan 2014 (Penrith DCP).

25. Compliance with Education and Care Services National Regulations is assessed as part of the assessment against the Child Care Planning Guidelines in the Applicant’s SEE at pp 85 to 87 and filed in the Court.

26. No jurisdictional issues arise with respect to the national and state legislative controls and requirements specific to child care facilities.

Public Consultation

27. The DA was notified in its original form, in accordance with the Respondent’s Community Engagement Strategy and Community Participation Plan 2022-26 between 2 October and 16 October 2023. Seven submissions were received in response to the notification of the DA. A number of local residents addressed the Court on site.

28. The matters raised in the submissions concerned:

1. potential amenity impacts, including in relation to noise;

2. the scale and character of the overall development, given the attributes of the neighbourhood;

3. construction related impacts, including potential damage to existing adjacent buildings;

4. potential traffic impacts, including from a safety perspective;

5. insufficient car parking to be provided, including associated impacts on street parking available in the area;

6. servicing of the development; and

7. suitability of the site for the proposed development.

29. I am satisfied that the issues raised by the objectors, where appropriate and reasonable, have been adequately addressed in Council’s Statement of Facts and Contentions, the Amended DA and agreed conditions and the objectors were accorded procedural fairness.

Conclusion

30. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

31. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. 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.

Notations:

32. The Court notes that:

1. The Respondent has approved, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No DA23/0802 to rely upon the following amended documents (Amended Development Application), as filed with the Court:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No. LEC-00 Issue J	Drawing List + General Notes	Archizen Architects	20 January 2025
	Drawing No. LEC-01 Issue J	Site, Analysis + Demolition		20 January 2025
	Drawing No. LEC-02 Issue J	Basement Floor (L0) Plan		20 January 2025
	Drawing No. LEC-03 Issue J	Ground Floor (L1) Plan		20 January 2025
	Drawing No. LEC-04 Issue J	First Floor (L2) Plan		20 January 2025
	Drawing No. LEC-05 Issue J	East (Blackwell Ave) Elevation		20 January 2025
	Drawing No. LEC-06 Issue J	North (Bradman Ave) Elevation		20 January 2025
	Drawing No. LEC-07 Issue J	West Elevation		20 January 2025
	Drawing No. LEC-08 Issue J	South Elevation		20 January 2025
	Drawing No. LEC-09 Issue J	Section A & Driveway Profile		20 January 2025
	Drawing No. LEC-10 Issue J	Section B		20 January 2025
	Drawing No. LEC-11 Issue J	Overall Plan: Basement (L0)		20 January 2025
	Drawing No. LEC-12 Issue J	Overall Plan: Ground Floor (L1)		20 January 2025
	Drawing No. LEC-13 Issue J	Overall Plan: Upper Floor (L2)		20 January 2025
	Drawing No. LEC-14 Issue J	Shadow Diagrams @ Jun 21		20 January 2025
	Drawing No. LEC-15 Issue J	Shadows @ Mar/Sept 21		20 January 2025
	Drawing No. LEC-16 Issue J	Shadows @ Dec 21		20 January 2025
	Drawing No. LEC-17 Issue J	GFA + Deep Soil Diagrams		20 January 2025
	Drawing No. LEC-18 Issue J	Acoustic Fencing		20 January 2025
	Drawing No. LEC-19 Issue J	Bradman Ave Streetscape		20 January 2025
	Drawing No. LEC-20 Issue J	Shadows Cast on Neighbour		20 January 2025
Landscape Plans
2	Drawing No. 1/4	Tree Plan	Tessa Rose Playspace and Landscape Design	14 December 2024
	Drawing No. 2/4 Revision 3	Ground Playspace/Landscape - Plants		24 January 2025
	Drawing No. 3/4 Revision 3	Ground Playspace/Landscape - Surfaces		24 January 2025
	Drawing No. 4/4 Revision 3	First Floor Playspace/Landscape		24 January 2025
Engineering Plans
3	Drawing No. S100 Revision 03	Cover Sheet	Deboke Engineering Consultants	10 December 2024
	Drawing No. S101 Revision 03	Specifications Sheet		10 December 2024
	Drawing No. S200 Revision 03	Basement Plan		10 December 2024
	Drawing No. S201 Revision 03	Ground Floor Plan		10 December 2024
	Drawing No. S202 Revision 03	First Floor Plan		10 December 2024
	Drawing No. S203 Revision 03	Roof Plan		10 December 2024
	Drawing No. S300 Revision 03	Details Sheet 1 of 4		10 December 2024
	Drawing No. S301 Revision 03	Details Sheet 2 of 4		10 December 2024
	Drawing No. S302 Revision 03	Details Sheet 3 of 4		10 December 2024
	Drawing No. S303 Revision 03	Details Sheet 4 of 4		10 December 2024
	Drawing No. S400 Revision 03	Erosion and Sediment Control Plan		10 December 2024

Documents
4	Schedule of Amendments	Archizen Architects	16 December 2024
5	Stormwater Management Report (Revision 03)	Deboke Engineering Consultants	13 December 2024
6	Amended Environmental Noise Impact Assessment	Day Design Pty Ltd	16 December 2024
7	Construction Noise & Vibration Management Plan	Day Design Pty Ltd	16 December 2024
8	Waste & Recycling Management Services	Waste Clear	5 December 2024
9	Letter regarding private waste collection services	WasteFree	2 October 2024
10	Arboricultural Impact Assessment (Revision B)	Hugh The Arborist	29 January 2025
11	Plan of Management (Revision 3)	29 January 2025
12	Amended Waste Management Plan	Dickens Solutions	October 2024
13	Traffic and Parking Assessment Report	Varga Traffic Planning Pty Ltd	30 October 2024
14	Proposed external finishes schedule	Archizen Architects	20 January 2025

Orders

33. The Court orders that:

1. The appeal is upheld.

2. Development Application No DA-23/0802, as amended, for the demolition of existing structures, tree removal, and construction of a two storey child care centre for 54 children with basement car parking and associated works on land legally described as Lot 2057 in Deposited Plan 255371 and known as 3 Blackwell Avenue, St Clair, NSW, 2759, is determined by the grant of development consent subject to the conditions at Annexure A.

3. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $11,000 within 21 days of the date of these orders.

L Byrne

Acting Commissioner of the Court

Annexure A (364818, pdf)

**********

Decision last updated: 01 April 2025