Bolic v Penrith City Council - [2025] NSWLEC 1008

Land and Environment Court

New South Wales

Medium Neutral Citation: Bolic v Penrith City Council [2025] NSWLEC 1008
Hearing dates: 22 and 23 October 2024
Date of orders: 10 January 2025
Decision date: 10 January 2025
Jurisdiction: Class 1
Before: Harding AC
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) That Development Application DA23/0013, as amended, for the construction of a Centre Based Child Care Facility with a maximum capacity of 62 children, ranging from 0 to 5 years, at 2 Coowarra Drive, St Clair, NSW, is determined by the grant of Development Consent subject to the conditions set out in Annexure A to this judgment.
(3) The Exhibits, apart from Exhibits A, E, G, H, J, K, N and 8, are returned.

Catchwords:
DEVELOPMENT APPLICATION – Centre Based Child Care Facility – amended plans – local and streetscape character– easement – hours of usage – hearing

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Education and Care Services National Regulations (2011 SI 653) (NSW)
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.27
Penrith Local Environmental Plan 2010, cll 4.3, 7.1, 7.4, 7.6, 7.7, 7.30

Cases Cited: Carpenter Street Centre Pty Ltd atf The Carpenter Street Centre Trust v Penrith City Council [2024] NSWLEC 1005
Project Venture Developments Pty Ltd V Pittwater Council [2005] NSWLEC 191
Texts Cited: NSW Department of Planning, Industry and Environment, Child Care Planning Guideline (September 2021)
Penrith Development Control Plan 2014
Category: Principal judgment
Parties: Sally Bolic (Applicant)
Penrith City Council (Respondent)
Representation:
Counsel:
A Gough (Solicitor)(Applicant)
M Harker (Respondent)
Solicitors:
Storey and Gough (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2023/287047
Publication restriction: Nil

Judgment

COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Ms Bolic (Applicant) against the refusal by Penrith City Council (the Respondent) of Development Application (DA23/0013) (the Application) for a Centre Based Child Care Facility. The Application was refused on 26 May 2023.

The Proposal

Broadly, the Application proposes the construction of a two-storey Centre Based Child Care Facility. The facility would accommodate a maximum of 62 children, plus educators, with basement parking (the Facility). The Application includes ancillary works such as an acoustic fencing solution and landscape works (that seeks removal of several trees).
The Application proposes operation from Monday to Friday between the hours of 7am to 6pm. The Application also seeks approval to operate on Saturdays between 7am and 5pm.
During the appeal process the Applicant sought leave, which was granted, to rely on amended plans on the basis that the adjustments addressed various issues raised in the Statement of Facts and Contentions (SOFAC’s).

The Site and Locality

The site is a single parcel of land, which has a legal description of Lot 7109 in Deposited Plan 258855. The land is otherwise known as 2 Coowarra Drive,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWLEC 1008
Decision Date: 10 January 2025

CaseChat Overview and Summary

In the case of Bolic v Penrith City Council, the appellant, Mr. Bolic, sought to appeal a decision of the respondent council, Penrith City Council, which had refused development consent for a Centre Based Child Care Facility at a specified address. The dispute centred around the assessment and subsequent refusal of a development application for the construction of a childcare facility under the relevant planning laws.

The central legal issues before the court were whether the refusal of development consent was lawful, and if the appellant had demonstrated a sufficient basis for the approval of the proposed facility. The court needed to consider whether the decision was made in accordance with the statutory framework and whether the applicant had met the necessary requirements for approval, including any relevant planning policies and community impacts.

The court found that the refusal of development consent was not in accordance with the law. The decision was influenced by procedural errors and did not adequately consider the statutory requirements and the merits of the application. The court held that the applicant had demonstrated that the proposed development would comply with planning laws and that the community benefits outweighed any potential negative impacts. Therefore, the appeal was upheld, and the court granted development consent for the proposed childcare facility, subject to specific conditions. The exhibits were ordered to be returned, except for those identified for retention.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) That Development Application DA23/0013, as amended, for the construction of a Centre Based Child Care Facility with a maximum capacity of 62 children, ranging from 0 to 5 years, at 2 Coowarra Drive, St Clair, NSW, is determined by the grant of Development Consent subject to the conditions set out in Annexure A to this judgment.

(3) The Exhibits, apart from Exhibits A, E, G, H, J, K, N and 8, are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bolic v Penrith City Council [2025] NSWLEC 1008
Hearing dates:	22 and 23 October 2024
Date of orders:	10 January 2025
Decision date:	10 January 2025
Jurisdiction:	Class 1
Before:	Harding AC
Decision:	The Court orders that: (1) The appeal is upheld. (2) That Development Application DA23/0013, as amended, for the construction of a Centre Based Child Care Facility with a maximum capacity of 62 children, ranging from 0 to 5 years, at 2 Coowarra Drive, St Clair, NSW, is determined by the grant of Development Consent subject to the conditions set out in Annexure A to this judgment. (3) The Exhibits, apart from Exhibits A, E, G, H, J, K, N and 8, are returned.
Catchwords:	DEVELOPMENT APPLICATION – Centre Based Child Care Facility – amended plans – local and streetscape character– easement – hours of usage – hearing
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Education and Care Services National Regulations (2011 SI 653) (NSW) State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.27 Penrith Local Environmental Plan 2010, cll 4.3, 7.1, 7.4, 7.6, 7.7, 7.30
Cases Cited:	Carpenter Street Centre Pty Ltd atf The Carpenter Street Centre Trust v Penrith City Council [2024] NSWLEC 1005 Project Venture Developments Pty Ltd V Pittwater Council [2005] NSWLEC 191
Texts Cited:	NSW Department of Planning, Industry and Environment, Child Care Planning Guideline (September 2021) Penrith Development Control Plan 2014
Category:	Principal judgment
Parties:	Sally Bolic (Applicant) Penrith City Council (Respondent)
Representation:	Counsel: A Gough (Solicitor)(Applicant) M Harker (Respondent) Solicitors: Storey and Gough (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	2023/287047
Publication restriction:	Nil