Blacktown LF Pty Ltd v Blacktown City Council

[2025] NSWLEC 1177

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blacktown LF Pty Ltd v Blacktown City Council [2025] NSWLEC 1177

Hearing dates:

Conciliation conference 24 September 2024, 4 March 2025

Date of orders:

26 March 2025

Decision date:

26 March 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to DA-23-01769 for the construction of a two storey, 107 place childcare centre, carparking, landscaping and associated works at 76 Douglas Road, Blacktown NSW 2148 subject to the conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of a two storey 107-place childcare centre – conciliation agreement – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 38

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

State Environmental Planning Policy (Biodiversity & Conservation) 2021, s 6.6

Education and Care Services National Regulation 2011, cll 107, 108

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

Blacktown Local Environmental Plan 2015 cll 2.3, 4.3, 7.5

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited:

Blacktown Development Control Plan 2015

Child Care Planning Guidelines 

Category:

Principal judgment

Parties:

Blacktown LF Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
M Astill (Applicant)
M Fozzard (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Bilias and Associates (Respondent)

File Number(s):

2024/94662

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Blacktown LF Pty Ltd (the Applicant) against the refusal of development application DA-23-01769 by the Respondent, Blacktown City Council, as consent authority. The development application, as amended, seeks consent for the construction of a two-storey 107-place centre-based childcare facility with on-site car parking spaces, retaining walls, acoustic barriers, fencing and landscape works. The development is proposed 76 Douglas Road, Blacktown (Lot 1 in DP 1014518).

2. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 24 September 2024. The conciliation conference was adjourned to provide the parties the opportunity to seek to resolve their dispute, however the conciliation was terminated on 17 October 2024 and the matter was listed for hearing. In February 2025 the Applicant was granted leave by the Court to amend their development application.

3. Prior to the commencement of the hearing the parties advised the Court they had reached agreement following an adjournment of the hearing, 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 4 March 2025. I presided over the further conciliation conference. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMilan) at [51].

4. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions see McMillan at [51]. I form this state of satisfaction on the basis that:

1. The development application is lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified by the Respondent from 3 to 17 April 2024. No submissions were received. The amended development application was notified 12 February 2025 to 25 February 2025. Two submissions were received by the Respondent in response to the amended development application. Further, a concerned resident made oral submissions to the Court. The concerns of the residents centred on the traffic, acoustic, stormwater and servicing impacts of the proposed development. With the assistance of the expert evidence in the proceedings I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or by the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. Chapter 4 (Remediation of Land) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the land. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. The development application includes a site contamination assessment and a Remediation Action Plan (RAP). The RAP concludes that the Site can be made suitable for the proposed development subject to the implementation and completion of matters outlined in the RAP. Compliance with the RAP is a requirement of the conditions of development consent in Annexure A. I am satisfied that the site will be suitable for the purpose of the development application.

4. Chapter 6 of the State Environmental Planning Policy (Biodiversity & Conservation) 2021 (SEPP BC) applies to the development as the site is located within the Hawkesbury – Nepean catchment. I am satisfied that the matters listed in s 6.6(1) of SEPP BC have been considered through the stormwater design and the annexed conditions. Further, I am satisfied that the effect of the proposed development on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial. Further, I am satisfied that the impact on water flow will be minimised.

5. The Education and Care Services National Regulation 2011 (Childcare Regulation) applies to the development application along with the Child Care Planning Guidelines issued by the NSW Department of Planning, Industry and Environment in 2021. Pursuant to s 3.23 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines before determining the application. The Statement of Environment Effects (SEE) accompanying the amended development application confirms that the proposed development complies with the non-discretionary standards for centre-based childcare facilities at s 3.26 of the Transport and Infrastructure SEPP. I accept the parties’ agreed submission that the development application complies with the relevant matters under the Child Care Planning Guidelines and the Childcare Regulation, as demonstrated by the SEE.

6. I note that pursuant to cl 107 of the Childcare Regulation, education and care service premises must have at least 3.25 square metres of unencumbered indoor space per child. The proposed development complies with this clause.

7. Further, I note that pursuant to cl 108 of the Childcare Regulation, education and care service premises must have at least 7 square metres of unencumbered outdoor space per child. The proposed development complies with this clause.

8. The Blacktown Local Environmental Plan 2015 (LEP 2015) applies to the site. Pursuant to LEP 2015, the site is zoned R2- Low Density Residential. Development for the purpose of a centre based childcare centre is permitted with consent in the zone. As required by cl 2.3 of LEP 2015, in determining the development application, I have given consideration to the objectives of the zone.

9. Pursuant to cl 4.3 (Height of buildings) in LEP 2015, and the Height of Buildings Map, a maximum height limit of 9m applies. The proposed development has a height of 5.8m and complies with the development standard.

10. Pursuant to cl 7.5 ‘Essential services’ in LEP 2015 a consent authority must be satisfied that the services essential to the development are available, or that adequate arrangements have been made to make them available when required. Based on the SEE, and the fact that there are existing sewer and water supply services to the site, I am satisfied of the matters in cl 7.5(2) of LEP 2015.

11. The Blacktown Development Control Plan 2015 (DCP 2015) applies to the site. The SEE filed with the application details the compliance of the proposed development with DCP 2015. In determining the development application, I have considered the provisions of the development control plan pursuant to s 4.15(1) of the EPA Act.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act in s 34(3)(b) also requires me to “set out in writing the terms of the decision”.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court notes that the Respondent, Blacktown City Council, as the relevant consent authority, has under s 38 of the EPA Regulation consented to the Applicant amending development application DA-23-01769 to rely on the drawings listed below:

Drawing number	Revision number	Title	Drawn by	Date
Architectural drawings
A01	30	Schedule and site analysis	Shaddock Architects	19 February 2025
A02	30	Existing site plan	Shaddock Architects	19 February 2025
A03	30	Basement floor plan	Shaddock Architects	19 February 2025
A04	30	Ground floor plan	Shaddock Architects	19 February 2025
A05	30	Ground area diagram	Shaddock Architects	19 February 2025
A06	30	Roof plan	Shaddock Architects	19 February 2025
A07	30	Elevations 1	Shaddock Architects	19 February 2025
A08	30	Elevations 2	Shaddock Architects	19 February 2025
A09	30	Sections	Shaddock Architects	19 February 2025
A10	30	Visual 1	Shaddock Architects	19 February 2025
A11	30	Visual 2	Shaddock Architects	19 February 2025
A12	30	Visual 3	Shaddock Architects	19 February 2025
A13	30	Visual 4	Shaddock Architects	19 February 2025
A14	30	Visual 5	Shaddock Architects	19 February 2025
A15	30	Visual 6	Shaddock Architects	19 February 2025
A16	30	Material schedule	Shaddock Architects	19 February 2025
A17	30	Door & window schedule	Shaddock Architects	19 February 2025

Document		Date
1.	Amended statement of environmental effects prepared by Willowtree Planning	24 February 2025
2.	Operational plan of management prepared by Gatt Group Pty Ltd	24 February 2025
3.	Amended waste management plan prepared by Dickens Solutions	February 2025

8. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to DA-23-01769 for the construction of a two storey, 107 place childcare centre, carparking, landscaping and associated works at 76 Douglas Road, Blacktown NSW 2148 subject to the conditions contained in Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A 

Decision last updated: 26 March 2025