Daher v Penrith City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Daher v Penrith City Council [2024] NSWLEC 1527

Hearing dates:

8, 9 and 25 April 2024

Date of orders:

28 August 2024

Decision date:

28 August 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application number 22/1148, as amended, for the demolition of existing structures, vegetation removal and construction of a two storey child care facility for 50 children over basement parking at 23 Barker Street Cambridge Park NSW 2747, is determined by the grant of development consent subject to the conditions at Annexure A.

(3) The exhibits are returned, except for Exhibits A, B, C, L and 1.

Catchwords:

DEVELOPMENT APPLICATION – centre based child care – stormwater – streetscape – character - landscaping

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.13, 4.15, 8.7

Environmental Planning and Assessment Regulation 2021
Penrith Local Environmental Plan 2010, cll 1.2, 2.3, 2.7, 4.3, 4.4, 5.21, 7.1, 7.4, 7.7, 7.30
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, Pt 3.3, ss 3.22, 3.23, 3.25, 3.26, 3.27

Cases Cited:

Carpenter Street Centre Pty Ltd atf The Carpenter Street Centre Trust v Penrith City Council [2024] NSWLEC 1005

Project Venture Developments v Pittwater Council [2005] NSWLEC 191

Texts Cited:

Child Care Planning Guideline 2021
Education and Care Services National Regulations 2011
NSW Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021
Penrith City Council Stormwater Drainage Guidelines for Building Developments 2020
Penrith Development Control Plan 2014

Category:

Principal judgment

Parties:

Nassar Daher (First Applicant)
Zalfa Daher (Second Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
J McKelvey (Respondent)

Solicitors:
Madison Marcus Law Firm (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/104879

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 appeal of the refusal of DA22/1148 for the demolition of existing structures and construction of a two storey centre based child care facility (DA) at 23 Barker Street Cambridge Park (Lot 193 DP 13531) (site).

2. The Applicants, Nasser Daher and Zalfa Daher (Daher), appeal Penrith City Council’s (Council) refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The key issues left in contention are whether the built form is consistent with the character of the area, acceptability of the impacts on adjoining neighbours and whether the landscaping and swale can co-exist in the same area to perform both their functions.

Amended Application

4. On 2 February 2024, leave was sought and granted by the Court to make the following amendments to the DA:

• Basement rear setback increased from 1m to 4.09m to retain the three existing trees on the adjoining property,

• Building setbacks increased from:

• Ground floor rear from 14.96m to 15.14m

• Ground and first floor front setback from 5.5m to 9.085m

• First floor setback rear setback from 10.4m to 18.05m

• Side setbacks changed…