Baghla v Blacktown City Council

[2025] NSWLEC 1231

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Baghla v Blacktown City Council [2025] NSWLEC 1231

Hearing dates:

Conciliation conference held on 12 December 2024

Date of orders:

11 April 2025

Decision date:

11 April 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No DA-23-00979 as amended for the demolition of existing structures and construction of a two-story centre based child care facility for 145 children above basement parking, tree removal and associated landscaping and civil works on land legally described as Lot 9, Lot 10 and Lot 11 in DP 244164, and known as 60, 62 and 64 Advance Street, Schofields, NSW, 2762, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – centre based child care facility – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, s 7

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations 2011

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 6.6, 6.7, 6.8, 6.9, 6.10

State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 7, ss 2.3, 2.6A, 4.3, 4.4, 6.1

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 3.22, 3.23, 3.25, 3.26

Texts Cited:

Blacktown Community Engagement Strategy and Community Participation Plan 2022-2024

Blacktown Development Control Plan 2015

Child Care Planning Guidelines 2021

Department of Planning, Industry and Environment,

Growth Centre Precincts Development Control Plan 2010

Category:

Principal judgment

Parties:

Yatinda Baghla (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
T To (Applicant)
L Raffaele (Solicitor) (Respondent)

Solicitors:
McPherson Kelley (Applicant)
Blacktown City Council (Respondent)

File Number(s):

2023/348684

Publication restriction:

Nil

Judgment

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-23-00979 for the demolition of existing structures and construction of a two-story centre based child care facility for 151 children above basement parking, tree removal and associated landscaping and civil works at 60, 62 and 64 Advance Street, Schofields, NSW, 2762, legally known as Lot 9, Lot 10 and Lot 11 in Deposited Plan 244164 (the site).

History of the DA

2. The DA was lodged by the Applicant with Blacktown City Council (the Respondent) on 19 September 2023.

3. On 2 November 2023, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the EPA Act against the deemed refusal of the DA by the Respondent.

4. On 10 May 2024, the Court arranged a s 34 conciliation conference on site pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The s 34 conciliation conference was adjourned several times. The parties were unable to reach agreement and the s 34 conciliation conference was terminated on 19 July 2024. The matter was adjourned for a Hearing on 12 December 2024.

5. On 30 October 2024, the Court granted leave for the Applicant to rely on the amended material set out in the Applicant’s Notice of Motion dated 23 October 2024 and contained in Exhibit EJF-1 (the amended DA).

6. On 15 November 2024, the Respondent filed its Amended Statement of Facts and Contentions (SOFAC) in response to the amended DA.

7. The following expert reports were prepared by the parties in relation to the proposed development:

1. an expert joint report relating to waste matters, which was filed with the Court on 22 November 2024 (Waste JER);

2. an expert joint report relating to drainage matters, which was filed with the Court on 25 November 2024 (Drainage JER);

3. an expert joint report relating to town planning and childcare matters, which was filed with the Court on 3 December 2024 (Town Planning and Childcare JER);

collectively referred to as Joint Expert Reports.

8. On 10 December 2024 the Court granted leave for the Applicant to rely on the further amended material (the further amended DA) as contained in the Applicant’s Amended Notice of Motion dated 4 December 2024 and as considered in the Joint Expert Reports.

The Hearing

9. The Hearing which I conducted commenced on 12 December 2024 in Court. The on-site view was vacated as the one submitter did not wish to attend an on-site view or address the Court, and the parties had reached a s 34 agreement on the proposed development prior to the Hearing.

10. At the commencement of the Hearing, the matter was adjourned to a s 34 conciliation conference on 12 December 2024 which I also conducted.

The s 34 Conciliation Conference

11. At the conciliation conference on 12 December 2024, the parties confirmed that they had generally reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, based on the further amended DA. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

12. The s 34 agreement is based on an amended DA which addresses a number of concerns raised by the Respondent. The amendments address a number of aspects outlined in the Joint Experts Report:

1. when viewed from Advance Street, the amended architectural plans break up the built form to appear as two separate modules that is compatible with the form and scale of development in the locality;

2. When viewed from the side boundaries, the additional articulation in the western elevation and the planter box on the eastern elevation provide relief from the blank walls and is compatible with the form and scale of development in the locality;

3. When viewed from the rear boundary, additional articulation is provide in the first floor level only as the ground level will be partially below ground and behind the fence. The resultant form is compatible with development in the locality; and

4. The experts note that the effect of the amended architectural plans reduces the number of children from 151 to 145. The quantum of indoor and outdoor unencumbered play areas complies with the Education and Care National Regulations 2011 (the Regulations) based on a total of 145 children. In addition, the 145 children generate the need for 19 educators, 1 director and 3 part time staff at the centre. The full time staff can park in the allocated spaces in the basement garage and part time staff can park in the visitor spaces outside of peak pick-up and drop off as detailed in the Plan of Management.

13. A signed s 34 agreement with Annexure A and amended plans (the further amended DA) as agreed between the parties were filed with the Court on 12 December 2024. Upon the filing of the s 34 agreement, the Hearing was adjourned. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites also filed by the parties on 12 December 2024.

14. 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.

15. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

16. 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.

Jurisdictional Matters

Owner’s consent

17. The parties advise that the DA was made by Tarun Chadha of Archidrome on 19 September 2023 with the consent of the owners of the site.

18. The parties advise that the land ownership has changed since the DA was lodged and the owners of the site are now as follows:

1. Lot 9 in Deposited Plan 244164 is owned by Yatinder Baghla (the Applicant) and Poonam Nagpal;

2. Lot 10 in Deposited Plan 244164 is owned by the Applicant; and

3. Lot 11 in Deposited Plan 244164 is owned by Poonam Nagpal.

19. Landowners’ consent for the Site from Ms Nagpal is provided at Tab 10 of Exhibit EJF-1.

Community Participation (Sch 1, Div 2, s 7(1)) - Environmental Planning and Assessment Act1979

20. The DA was publicly notified in accordance with the Blacktown Community Engagement Strategy and Community Participation Plan 2022-2024 between 4 October 2023 to 18 October 2023. The Respondent received one submission from the public during the public notification period.

Integrated Development

21. The parties advise that the DA is not integrated development as defined under s 4.46 of the EPA Act.

Referral Agencies

22. The parties advise that the DA was referred to Endeavour Energy under s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport and Infrastructure SEPP) ([32] below refers).

23. Endeavour Energy provided comments for consideration in the determination of the DA and raised no objections to the DA subject to Endeavour Energy requirements and imposition of conditions. Recommended conditions have been included within the set of conditions at Annexure A to the s 34 agreement.

Conditions

24. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

State Environmental Planning Policy (Precincts - Central River City) 2021

25. State Environmental Planning Policy (Precincts – Central River City) 2021 (the Precincts SEPP) is the relevant environmental planning instrument that applies to the site. Appendix 7 (Alex Avenue and Riverstone Precinct Plan 2010) (the Precinct Plan) of the Precincts SEPP is applicable to the site.

1. The site is zoned Medium Density Residential under the Precinct Plan; and

1. The proposed development for centre-based child care facilities is permissible with consent in the R3 zone;

2. Demolition works are permissible with consent under s 2.6A of the Precinct Plan;

3. Section 2.3 of the Precinct Plan 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;

4. The parties advise that the further amended DA is consistent with the objectives of the R3 Zone. The parties have assessed the proposed development against the R3 zone objectives and submit that the proposed child care centre will provide essential child care services to meet the day to day needs of the community; and

5. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out;

2. Pursuant to s 4.3 of the Precinct Plan, the maximum height of buildings (HOB) on the site is 16 metres; and

1. The further amended DA is compliant with the 16 metre building height control;

3. Pursuant to s 4.4 of the Precinct Plan, the maximum Floor Space Ratio (FSR) for the site is 1.75:1; and

1. The further amended DA proposes a FSR of 0.49:1, in compliance with this development standard; and

4. Section 6.1 of the Precinct Plan relates to public utility infrastructure. The parties advise that the site contains existing residential dwellings in an established residential area which are currently serviced by public utility infrastructure. The Agreed Conditions of Consent require the relevant certificates and approvals be obtained. The parties submit that the Court can be satisfied that public utility infrastructure that is essential for the proposed development will be available when required.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

26. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the proposed development as it is proposed to remove trees from the site. The parties advise that:

1. An Arboricultural Implication Assessment and Tree Protection Specification has been prepared by Horticultural Resources Consulting Group dated 22 April 2024 (refer to Tab 18 of Exhibit EJF-1); and

2. The matters arising under Ch 2 of the Biodiversity and Conservation SEPP do not apply to the proposed development, and as such, is not a jurisdictional requirement for the Court to consider. This is because the Applicant has not applied to remove the trees under permit, but rather seeks development consent to remove the trees under EPA Act.  

27. Chapter 6 of the Biodiversity SEPP applies to the proposed development as the site is located within the Hawkesbury-Nepean Catchment. Chapter 6 of the Biodiversity SEPP seeks to manage and promote integrated catchment management policies. The parties advise that the Court could be satisfied that the proposed development addresses the matters in ss 6.6, 6.7, 6.8, 6.9 and 6.10 of the Biodiversity SEPP as follows:

1. The matters in s 6.6(1) of the Biodiversity SEPP have been considered by the Respondent;

2. Noting that the Stormwater Drainage Plans (refer to Tab 4 of Exhibit EJF-2) have been designed having regard to the Respondent’s engineering guidelines and in compliance with the water quality standards, the Court can be satisfied that the further amended DA achieves a neutral or beneficial water quality outcome and there will be minimal impact on water flow in a natural waterbody. Specifically, the parties advise that the post-development reductions of stormwater flows and nominated pollutants meet the Respondent’s water quality standards;

3. In relation to ss 6.6(1)(e) and 6.6(1)(g) of the Biodiversity SEPP, the further amended DA is accompanied by a Report on Geotechnical Investigation. The parties advise that based on the investigations, ground water was not encountered at the site and it is unlikely that the development will impact the water table. The recommendations from this report have been incorporated in the agreed conditions by the parties, where appropriate, to ensure that the quality and quantity of groundwater and the water table is protected;

4. In relation to the matters in s 6.7 of the Biodiversity SEPP, the Court can be satisfied that there will be no or minimal impact on aquatic ecology as the site is not located on land which contains terrestrial, aquatic or migratory animals or vegetation and the site is not located near a natural waterbody nor wetlands;

5. In relation to the matters in s 6.8 of the Biodiversity SEPP, the site is not located on floor liable land and the proposed development will have no impact on periodic flooding;

6. In relation to the matters in s 6.9 of the Biodiversity SEPP, the site is not located near any natural waterbodies or foreshores, and will have no impact on any public access to recreational land uses; and

7. In relation to s 6.10 of the Biodiversity SEPP, the proposed development is not likely to have an adverse environmental impact on any adjacent or downstream local government areas.

State Environmental Planning Policy (Resilience and Hazards) 2021

28. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out.

29. The parties advise that the site has a historical residential use with no known prior land uses and is located within an established residential locality. Based on historical records, there is no suggestion that the site would have been contaminated. There are no immediate site conditions which would require remediation of the site.

30. In support of the DA, a Stage 1 Preliminary and Stage 2 Detailed Site Investigation has been prepared for the site (refer to Tab 16 of Exhibit EJF-1). Based on these investigations, the site can be considered generally suitable for the proposed development. The recommendations have been included in the Agreed Conditions of Consent.

31. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

32. The DA was referred to Endeavour Energy pursuant to s 2.48 of the Transport and Infrastructure SEPP, as the site is located within 5 metres of an exposed overhead electricity power line. Endeavour Energy raised no objections to the DA subject to Endeavour Energy requirements and conditions being imposed in the conditions of consent.

33. Chapter 3 of the Transport and Infrastructure SEPP aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW.

34. Under s 3.22 of the Transport and Infrastructure SEPP – Centre-based child care facility - concurrence of the Regulatory Authority is required for certain development. The parties advise that concurrence from the Regulatory Authority under s 3.22 is not required as the proposed development is compliant.

35. Under s 3.23 of the Transport and Infrastructure SEPP - Centre-based child care facility - matters for consideration by consent authorities, a consent authority must consider applicable provisions of the Child Care Planning Guideline 2021 (the Guideline) (at [38] below).

36. Section 3.26 of the Transport and Infrastructure SEPP contains non-discretionary development standards for centre-based child care centres. The parties submit that the further amended DA provides at least 3.25 square metres of unencumbered indoor play space and at least 7 square metres of unencumbered outdoor play space per child which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations 2011.

Education and Care Service National Regulations 2011

37. The Regulations provide extensive controls and requirements in addition to that of Local Environmental Plans and Development Control Plans and includes licensing and approvals processes, including documentation requirements; facilities and equipment requirements; staffing requirements; child number requirements; operational requirements; administrative requirements; and probity check requirements; and

1. The parties advise that the amended DA has been assessed as complying with the Regulations.

Child Care Planning Guideline 2021

38. The Guideline establishes the assessment framework to deliver consistent planning outcomes and design quality for centre-based child care facilities in NSW. Section 3.23 of the Transport and Infrastructure SEPP requires that the consent authority must take into consideration any applicable provisions of the Guideline before determining a development application; and

1. The parties advise that compliance with the Guideline is addressed in the amended SEE.

Growth Centre Precinct Development Control Plan 2010 (amended March 2022) and Blacktown Development Control Plan 2015

39. The Blacktown Development Control Plan 2015 and the Growth Centre Precinct Development Control Plan 2010 (amended March 2022) (GCPDCP) apply to the site. Non-compliance with Part 4.1 of the GCPDCP was raised in the contentions, as the Respondent considered that the original proposed development failed to provide for design excellence and would not protect and preserve the amenity and character of the existing residential neighbourhood.

39. The parties now advise that the further amended DA can be approved taking into consideration the matters in s 4.15(1)(b)-(e) of the EPA Act.

Conclusion

41. Having considered the advice of the parties provided above at [17]-[40], I am satisfied that:

1. The Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b)-(e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. Approval of the proposed development is in the public interest.

42. Further, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

43. 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.

44. The Court notes:

1. On 10 December 2024 the Court granted leave for the Applicant to rely on the further amended material set out in the Applicant’s Amended Notice of Motion dated 4 December 2024 and contained in Exhibit EJF-2 and Exhibit EJF-3.

2. On 10 December 2024 the Court ordered that the Applicant pay the Respondent’s costs thrown away as a result of the amendments to the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

45. The Court orders:

1. The appeal is upheld.

2. Development Application No DA-23-00979 as amended for the demolition of existing structures and construction of a two-story centre based child care facility for 145 children above basement parking, tree removal and associated landscaping and civil works on land legally described as Lot 9, Lot 10 and Lot 11 in DP 244164, and known as 60, 62 and 64 Advance Street, Schofields, NSW, 2762, is determined by the grant of development consent subject to the conditions at Annexure A

G Kullen

Acting Commissioner of the Court

Annexure A

**********

Amendments

17 April 2025 - Correction to Representation

Decision last updated: 17 April 2025