Glen Luca CCC Pty Ltd v Strathfield Municipal Council

[2025] NSWLEC 1641

Land and Environment Court

New South Wales

Medium Neutral Citation:

Glen Luca CCC Pty Ltd v Strathfield Municipal Council [2025] NSWLEC 1641

Hearing dates:

Conciliation conference 2 September 2025

Date of orders:

05 September 2025

Decision date:

05 September 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

(2) The appeal is upheld.

(3) Development Application No. DA/2024/26, as amended, for alterations and additions to an existing two storey heritage dwelling for use as a childcare centre with basement parking and associated landscaping at 67-69 The Boulevarde, Strathfield, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.15

Land and Environment Court Act 1979 (NSW), s 34

Education and Care Services National Regulations 2011 (NSW)

Environmental Planning and Assessment Regulation 2021 (NSW), s 38

State Environment Planning Policy (Biodiversity and Conservation) 2021, ch 6

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

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

Strathfield Local Environmental Plan 2012, cll 2.3, 4.3, 4.4C, 5.10, 6.3, 6.4

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

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

Category:

Principal judgment

Parties:

Glen Luna CCC Pty Ltd (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
N Hammond (Respondent)

Solicitors:
Mills Oakley (Applicant)
Strathfield Municipal Council (Respondent)

File Number(s):

2024/324741

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the deemed refusal of DA/2024/26 for alterations and additions to an existing two storey heritage dwelling for use as a centre based child care centre, with basement parking and associated landscaping (DA) at 67-69 The Boulevard, Strathfield, legally known as Lot B in Deposited Plan 325057 (site).

2. The proceedings were initially listed for a hearing commencing 1 September 2025. The parties advised the Court that the issues in dispute had been resolved through joint expert conferencing and amendments to the DA, and requested a conciliation conference. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) on 2 September 2025. I presided over the conciliation conference.

3. The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending DA/2024/26 in accordance with the documents listed in Annexure B.

4. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

8. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]). For the reasons set out below, 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.

Owners consent

9. I am satisfied that owners’ consent has been provided for the DA as the Applicants are the owners.

10. I note that the parties advise that the acoustic fence is not located on the boundary, but 100mm away from the boundary.

Community notification and objections

11. Council notified the DA between 25 March 2024 to 17 April 2024. 9 objections were received. The Court heard oral submissions from three objectors and viewed some of the raised concerns from one property.

12. Different from the consideration of the Court at a hearing, as the parties have entered into an agreement, the Court’s role is limited to ensuring that there is power to grant consent. The Court does not consider the merits of the issues raised when the parties reach agreement (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [217]).

13. In reaching agreement, the parties have advised the Court that they considered the concerns raised in the written and oral objections and where possible, that these have been addressed.

14. I note that the application is accompanied by various traffic impact assessment reports and that the proposal was considered by the parties’ traffic experts in preparation for the hearing.

15. I also note that the architectural plans and various conditions of consent in Annexure A identify acoustic fencing close to the side boundaries along the passive play areas and other acoustic related conditions.

Strathfield Local Environmental Plan 2012

16. The subject site is zoned R2 Low Density Residential, where the proposed use for a centre-based child care facility is permissible with consent. Pursuant to cl 2.3, regard has been had to the objectives of the zone.

17. Clause 4.3 height of buildings applies and allows a maximum of 9.5m. The architectural plans prepared by Nicholas Day Architects (architectural plans) demonstrate that the proposed works are below 9.5m.

18. Clause 4.4C exceptions to floor space ratio (FSR) applies to the site, with a maximum of 0.5:1. The architectural plans demonstrate that the proposed is below the maximum, at 0.49:1.

19. Clause 5.10 heritage conservation applies as the site is a local heritage item (I204 under sch 5 of the SLEP). The conservation of heritage and impacts from the proposal have been adequately considered as demonstrated by the joint expert reporting of the heritage experts and Statement of Heritage Impact prepared by Weir Phillips Heritage dated 18 March 2025. Appropriate conditions of consent have been included regarding heritage conservation and heritage detailing at the construction stage.

20. Clause 6.3 earthworks applies to the proposal. The DA is accompanied by a Geotechnical Investigation Report prepared by Geotechnical Consultants Australia dated 30 January 2025 (Geotechnical Report) and Geotechnical Letter prepared by Geotechnical Consultants Australia dated 21 March 2025 that adequately deal the provisions of cl 6.3.

21. Clause 6.4 essential services applies to the proposal. As detailed in the jurisdictional statement, most of the listed services are currently provided and will continue. The proposal will also utilise the existing driveway access and construct a new, wider driveway. The proposal includes new stormwater management as demonstrated by the Stormwater Plans prepared by S&G Consultants dated 14 July 2025. (stormwater plans).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

22. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies as the site is located in the Sydney Water Catchment. I accept the parties’ agreement the provisions have been satisfied and that the impact on water quality will be neutral or beneficial on the basis of the:

1. Stormwater Plans.

2. Groundwater Assessment Report prepared by GCA Consultants dated 21 March 2025.

3. Geotechnical Reports.

4. Jurisdictional Statement.

State Environmental Planning Policy (Resilience and Hazards) 2021

23. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site in relation to contamination. The amended DA is accompanied by a Preliminary Site Investigation dated 16 May 2022 and Detailed Site Investigated dated 5 March 2025 both prepared by GCA Consultants Pty Ltd which demonstrate that the site is suitable for the proposed use subject to standard demolition and construction related recommendations. The recommendations have been included in the conditions of consent at Annexure A. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

24. Chapter 3 Educational establishments and childcare facilities of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the proposed development.

25. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 and 3.26 of SEPP TI as shown on the architectural plans and outlined in the jurisdictional statement. Further, based on the agreed submissions from the parties in the jurisdictional statement and SEE, I accept that the provisions of ss 3.22, 3.23, 3.26, the Child Care Planning Guideline and the Education and Care Services National Regulations 2011 (NSW) have been addressed.

Heads of consideration

26. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

27. 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.

28. 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.

29. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

30. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

2. The appeal is upheld.

3. Development Application No. DA/2024/26, as amended, for alterations and additions to an existing two storey heritage dwelling for use as a childcare centre with basement parking and associated landscaping at 67-69 The Boulevarde, Strathfield, is determined by the grant of consent subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

Annexure A (471 KB, pdf)

Annexure B (128 KB, pdf)

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Decision last updated: 05 September 2025