Khatun v Blacktown City Council

[2025] NSWLEC 1139

Land and Environment Court

New South Wales

Medium Neutral Citation:

Khatun v Blacktown City Council [2025] NSWLEC 1139

Hearing dates:

Conciliation Conference held 13 November, 4 December 2024, 30 January and 14 February 2025

Date of orders:

12 March 2025

Decision date:

12 March 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2)   The appeal is upheld.

(3)   Development consent is granted to DA-22-00887 for the demolition of existing structures and construction of 2 storey child care centre for 39 children and carparking area for 13 spaces at 67 Miller Street, Mount Druitt and marked ‘Annexure A’.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Blacktown Local Environmental Plan 2015, cll 2.7, 4.3, 4.6, 5.10, 5.21, 7.5, 7.7

Education and Care Services National Regulations (2011), reg 107, 108

Environmental Planning and Assessment Regulation 2021, ss 23, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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 3.3, 3.22, 3.23, 3.25

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

Texts Cited:

Blacktown Development Control Plan 2015

Department of Planning, Industry and Environment, Child Care Planning Guideline: Delivering Quality Child Care for NSW, September 2021

Category:

Principal judgment

Parties:

Amena Khatun (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor)(Applicant)
J King (Solicitor)(Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/228085

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA-22-00887 seeking consent for the demolition of existing structures and construction of a centre-based child care facility (Proposed Development) at 67 Miller Street, Mount Druitt legally described as Lot 24 Section V in DP2042 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 13 November, 4 December 2024, 30 January and 14 February 2025. I presided over the conciliation conference.

3. The parties have reached an agreement as to the resolution of the contentions raised in the Statement of Facts and Contentions (SOFAC) filed by the Respondent on 13 August 2024. The agreement has resulted in amendments to the Proposed Development including:

1. Two separate buildings have been consolidated into a single building on the eastern boundary in two sections which is connected by an access hallway;

2. Reducing the number of children from 41 to 39 children;

3. A 2m wide landscape strip has been added to the front boundary;

4. Bin room has been relocated within the building;

5. Replacing the turning bay with a visitor space and proposing a signalised digital sign at the car park entry;

6. A bulk waste room has been added to the underside of the stair with access from the side setback; and

7. 100mm deep swale at the landscape buffer as per stormwater plans.

4. The parties agree that all contentions raised in the SOFAC have been resolved by way of:

1. amended material referred to at [31]; and

2. agreed conditions of consent at Annexure A.

5. At the conciliation conference, 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 and granting development consent to the development application subject to conditions.

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. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be Blacktown Local Environmental Plan 2015 (BLEP), State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) and State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the court.

9. The Applicant is the landowner of the Site. Owner’s consent was given for the lodgement of the Development Application (see Owner’s Consent in Tab 1 of the Class 1 Application). Accordingly, the Court can be satisfied that the proposed development complies with s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

10. The Development Application was publicly notified from 19 August 2022 to 12 September 2022. Two petitions (63 signatures and 3 signatures respectively) and 24 individual submissions were received in response to the public notification of the Development Application. Objectors also made oral submissions on site at the commencement of the conciliation conference. The main issues raised in the objections related to the following issues:

1. proximity to existing centre-based child care facilities;

2. exacerbation of existing stormwater issues;

3. traffic and parking; and

4. noise impacts.

11. In response to these concerns raised by objectors, the parties explained as follows:

1. Section 3.26(2)(a) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 provides that a development for a centre-based child care facility may be any distance from an existing or proposed early education and care facility.

2. The Amended Flood Study Report prepared by NY Civil Engineering dated 7 December 2024 and the Amended Stormwater Management Plan prepared by NY Civil Engineering dated 7 December 2024 indicate that the development provides a number of measures such that it will not adversely impact flood affectation of other properties. I will come back to flood planning below at [22].

3. The Amended Operational Traffic Management Plan prepared by Stanbury Traffic Panning provides parking, traffic and pedestrian management measures to be which are safe and appropriate to satisfy the local traffic and pedestrian demands associated with the operation of the child care centre.

4. The Amended Environmental Noise Impact Assessment prepared by Day Design Pty Ltd dated 6 December 2024 provides a number of recommendations at section 6.0 of the report so that noise emissions from the development are reduced to within acceptable limits. A noise management plan is required to be prepared and implemented by the operator of the child care centre in accordance with condition 17.1.2 of the Conditions. In addition, condition 7.3 requires the construction of acoustic fencing as set out in drawings DA03.01 Rev C and DA05.01 Rev C prepared by ArtMade Architects dated 10 December 2024.

12. The Proposed Development seeks consent for demolition of existing structures pursuant to cl 2.7 of the BLEP as set out in the Site Plan/Demolition Plan drawing DA2.01 Rev C prepared by ArtMade Architects dated 16 December 2024.

13. The land is identified on the Land Zoning Map of the BLEP as zoned R2 Low Density Residential where Centre-based child care facilities are permitted with consent.

14. Pursuant to s 4.6(1) of the Resilience and Hazards SEPP a consent authority must be satisfied that appropriate consideration has been given to whether the Site is contaminated, the suitability of the Site to the Proposed Development and whether satisfactory measures are put into place to remediate the land should it be required to do so.

15. The Applicant relies on a Preliminary Site Investigation prepared by Broadcrest Environmental Pty Ltd dated 26 September 2024 (PSI) in accordance with s 4.6(3) of the Resilience and Hazards SEPP. The PSI indicates that the Site has a historical residential use as does the surrounding area. The PSI concludes that the Site can be made suitable following the implementation of the recommendations in section 3.6 of the PSI.

16. Condition 10.1.1 of the Conditions at Annexure A requires the preparation of a Hazardous Materials Survey for the Site prior to the demolition. The PSI does not require a Detailed Site Investigation (DSI) to be prepared for the Site.

17. Accordingly, I am satisfied that the contamination status of the Site has been duly considered and that the Site can be made suitable for the Proposed Development pursuant to s 4.6 of the Resilience and Hazards SEPP.

18. I now turn to the satisfaction of the relevant provisions in Chapter 3 of the Transport and Infrastructure SEPP relating to educational establishments and child care facilities because the proposed building meets the definition of a ‘centre-based child care facility’, as defined pursuant to s 3.3.

19. Part 3.3 of Chapter 3 outlines a number of specific development controls in relation to ‘early education and child care facilities’ which have been addressed in the Statement of Environmental Effects (SEE) prepared by Planning Ingenuity dated 24 June 2022 filed with the Class 1 Application. The parties explain how the controls have been satisfied as follows:

1. Section 3.22 applies to development for the purpose of a centre-based child care facility if the floor area of the building or the outdoor space requirements for the building do not comply with reg 107 or reg 108 of the Education and Care Services National Regulations (2011). If the section applies, the consent authority must not grant development consent except with the concurrence of the Regulatory Authority.

1. The Proposed Development provides a total of 130m² of unencumbered indoor space which complies with reg 107 that every child has at least 3.25m² of unencumbered indoor space being a minimum of 126.75m² as set out in the Site Plan/Demolition Plan Drawing DA02.01 Rev C prepared by ArtMade Architects dated 16 December 2024 (Site Plan/Demolition Plan).

2. The Proposed Development provides a total of 277.50m² of unencumbered outdoor space which complies with reg 108 that every child has at least 7m² the of unencumbered outdoor space being a minimum of 273m² as set out in the Area Calculations Drawing DA03.03 Rev C prepared by ArtMade Architects dated 13 December 2024 (Area Calculations).

2. The parties have taken into consideration the applicable provisions of the Child Care Planning Guideline, in relation to the proposed development as required by s 3.23 of the Transport and Infrastructure SEPP and explain that the amendments to the Proposed Development have improved the responses to a number of the matters raised in the Child Care Planning Guideline.

3. There is no floor space ratio (FSR) development standard or control in the BLEP nor the Blacktown Development Control Plan 2015 that applies to the Site. The Proposed Development has an FSR of 0.30:1 as depicted in the Area Calculations which satisfies s 3.25(1) of the Transport and Infrastructure SEPP which provides that development consent must not be granted for the purposes of a centre-based child care facility in Zone R2 Low Density Residential if the FSR for the building on the site of the facility exceeds 0.5:1.

20. The Site is not a listed heritage item, nor is it within a heritage conservation area: cl 5.10 of the BLEP.

21. The Height of Buildings Map of the BLEP identifies the Site as being subject to a maximum height of building (HOB) development standard of 9m pursuant to cl 4.3 of the BLEP. The Proposed Development provides a compliant HOB of 8.06m as depicted in Section CC of the Sections and Fence Details drawing DA05.01 Rev B prepared by ArtMade Architects dated 10 December 2024.

22. The Site is identified as flood planning area attracting the terms of cl 5.21 of the BLEP which provides that development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied of the matters listed in subcll 5.21(2) and (3). The parties rely on the Amended Flood Study Report prepared by NY Civil Engineering dated 7 December 2024 which, at pp 23 and 24, provides an assessment against cl 5.21 of the BLEP and concludes that the Proposed Development does not cause material offsite flood impacts and is considered acceptable.

23. The Applicant has also prepared the Amended Stormwater Management Plan Rev G prepared by NY Civil Engineering dated 16 December 2024 which has measures to ensure that the development will not adversely impact flood affectation of other properties.

24. Accordingly, I am satisfied that the Proposed Development:

1. is compatible with the flood function and behaviour on the land, and

2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

4. incorporates appropriate measures to manage risk to life in the event of a flood, and

5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

25. Development consent must not be granted unless the consent authority is satisfied the services listed at subcll 7.5(a) to (e) of the BLEP are available or that that adequate arrangements have been made to make them available when required. In that regard, all public utility infrastructure is available to the Site including water, electricity and sewage, stormwater infrastructure and public road access.

26. The Site is identified on the Design Excellence Map, accordingly development consent must not be granted unless the consent authority considers that the Proposed Development exhibits design excellence: cl 7.7(3), BLEP. In considering whether the Proposed Development exhibits design excellence, I have had regard to the matters listed in subcll 7.7(4)(a) to (f) of the BLEP. The Respondent had previously raised issues with the extent and location of hardstand impacting compliance with subcll 7.7(f)(iii), (vii) and (vii) of the BLEP, however, as the outdoor play area is no longer on slab, this contention was resolved.

27. The Applicant relies on a Supplementary SEE prepared by Planning Ingenuity which sets out a detailed response to the matters listed in subcll 7.7(4)(a) to (f) of the BLEP.

28. For the reasons set out in the Supplementary SEE, I consider that the Proposed Development exhibits design excellence.

29. 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. I adopt the reasons given by the parties as set out in this judgment.

30. 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.

Notations:

31. The Court notes:

1. the Respondent, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending DA-22-00887 in accordance with the documents listed below:

Amended Architectural Plans
Plan name	Drawing ref	Revision	Date	Prepared by
Site Plan/Demolition Plan	DA02.01	C	16 December 2024	ArtMade Architects
Ground Floor Plan	DA03.01	C	16 December 2024	ArtMade Architects
First Floor Plan	DA03.02	C	16 December 2024	ArtMade Architects
FSR Calculations	DA03.03	C	13 December 2024	ArtMade Architects
External Elevations & Finishes	DA04.01	B	10 December 2024	ArtMade Architects
Sections & Fence Details	DA05.01	B	10 December 2024	ArtMade Architects
Amended Landscape Plans
Plan name	Drawing ref	Revision	Date	Prepared by
Context Plan	DA_01	G	16 December 2024	Greenscape
Landscape Plan	DA_02	G	16 December 2024	Greenscape
Planting Plan	DA_03	G	16 December 2024	Greenscape
Precedental Images	DA_04	G	16 December 2024	Greenscape
Planting Palette	DA_05	G	16 December 2024	Greenscape
Amended Civil Plans
Plan name	Drawing Ref	Revision	Date	Prepared by
Details, Notes & Legends	D1	G	16 December 2024	NY Civil Engineering
Stormwater Management Plan	D2	G	16 December 2024	NY Civil Engineering
Stormwater Management Roof Plan	D3	G	16 December 2024	NY Civil Engineering
Swale Design	D4	G	16 December 2024	NY Civil Engineering
Rainwater Tank Details	D5	G	16 December 2024	NY Civil Engineering
Stormwater Details	D6	G	16 December 2024	NY Civil Engineering
OSD Details	D7	G	16 December 2024	NY Civil Engineering
OSD Details	D8	G	16 December 2024	NY Civil Engineering
Driveway Long Section	D9	G	16 December 2024	NY Civil Engineering
Driveway Long Section	D10	G	16 December 2024	NY Civil Engineering
Pipe Lone Section	D11	G	16 December 2024	NY Civil Engineering
Catchment/Drains Models	D12	G	16 December 2024	NY Civil Engineering
Council Pipe HGL	D13	G	16 December 2024	NY Civil Engineering
Sediment Control Plan	D14	G	16 December 2024	NY Civil Engineering
Sediment Control Details	D15	G	16 December 2024	NY Civil Engineering
Reports
Report name	Ref	Revision	Date	Prepared by
Amended Environmental Noise Impact Assessment	6502-1R Rev D	D	6 December 2024	Day Design Pty Ltd
Amended Flood Study Report	E210521	E	7 December 2024	NY Civil Engineering
Amended Plan of Management	M220159	-	27 November 2024	Planning Ingenuity
Amended Operational Traffic Management Plan	22-058-3	-	6 December 2024	Stanbury Traffic Panning
Architect Design Statement	-	-	12 December 2024	ArtMade Architects
Waste Wise Mini Rear Loader Specifications	-	-	undated	Waste Wise Environmental
Preliminary Site Investigation	3958-ESA-01-A	26 September 2024	Broadcrest Environmental Pty Ltd
Addendum to Arboricultural Impact Assessment	7873add	-	14 January 2025	Redgum Horticultural Arboriculture & Horticulture Consultants

Orders:

32. The Court orders:

1. The Applicant is to pay the Respondent’s costs as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development consent is granted to DA-22-00887 for the demolition of existing structures and construction of 2 storey child care centre for 39 children and carparking area for 13 spaces at 67 Miller Street, Mount Druitt and marked ‘Annexure A’.

E Espinosa

Commissioner of the Court

**********

Annexure A

Decision last updated: 12 March 2025