McCulloch Street Developments Pty Ltd v Blacktown City Council

[2025] NSWLEC 1791

Land and Environment Court

New South Wales

Medium Neutral Citation:

McCulloch Street Developments Pty Ltd v Blacktown City Council [2025] NSWLEC 1791

Hearing dates:

Conciliation conference on 30 October 2025

Date of orders:

11 November 2025

Decision date:

11 November 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $9,000 within 28 days of the date of these Orders.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application DA/2024/00714 for demolition of all existing buildings and structures, tree removal, civil works and construction of a part 2 part 3 storey seniors housing development above a basement car park, in the form of an infill self-care housing, at Lots 93 and 94 in DP 291185 and Lot 347 in DP 238732, otherwise known as 99-101 Lock Street and 53 Pendant Avenue, Blacktown, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – in-fill self-care housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW) ss 4.16, 8.7

Land and Environment Court Act 1979 (NSW) s 34

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

Environmental Planning and Assessment Regulation 2021 (NSW) s 38

State Environmental Planning Policy (Housing) 2021 Ch 3 Pt 5 ss 84, 85, 88, 93, 95, 97, 108, Sch 4

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

Category:

Principal judgment

Parties:

McCulloch Street Developments Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
L Raffaele (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Bartier Perry (Respondent)

File Number(s):

2024/390875

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Blacktown City Council (the Council), of Development Application DA-24-00714 which seeks consent for the demolition of all existing buildings and structures, tree removal, civil works, and construction of a part 2 part 3 storey seniors housing development above a basement car park, in the form of an infill self-care housing development at 99-101 Lock Street and 53 Pendant Avenue, Blacktown, Lots 93 and 94 in DP 291185 and Lot 347 in DP 238732.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (NSW) (EPA Act).

3. Following an earlier unsuccessful conciliation conference, at the parties’ request a further conciliation conference was arranged by the Court under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 30 October 2025.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address their contentions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified from 27 September to 11 October 2024. Nine submissions were received in this time. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

9. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submission and the information contained in the Preliminary Site Investigation by NEO Consulting, dated 16 May 2025, I accept that the land has historically been used for residential purposes, is not likely to be contaminated and is suitable for the proposed development.

10. The proposed development, which incorporates 29 independent living units, is defined as ‘in-fill self-care housing’ pursuant to the State Environmental Planning Policy (Housing) 2021 (SEPP Housing), and accordingly Chapter 3 Part 5 of this SEPP applies. From the information contained in the Statement of Environmental Effects by CSK Planning & Associates dated 15 August 2024 (SEE), the amended architectural plans by VOARC dated 23 September 2025, and the parties’ submission, with reference to the relevant provisions of the Housing SEPP I accept the following:

1. The general development standards at s 84 are met with the proposed development (SEPP Housing s 84).

2. The development standards for independent living units set out in Sch 4 of the SEPP Housing are met (SEPP Housing s 85).

3. The proposed development is to provide housing for seniors or people who have a disability and is therefore permissible under this part (SEPP Housing s 88).

4. The development will provide adequate access to facilities and services for residents (SEPP Housing s 93).

5. The development will be connected to a reticulated water system, and will have adequate facilities for the removal of sewage (SEPP Housing s 95).

6. The design has been considered against the Seniors Housing Design Guide 2023 and is acceptable (Annexure 2 of the SEE) (SEPP Housing s 97).

7. Section 108 of the SEPP Housing relevantly provides that the floor space ratio (FSR) of the development must not exceed 0.5:1. The proposed development meets all other relevant standards in this section but exceeds the FSR control with a proposed FSR of 0.59:1. A written request to vary this control has been filed with the application, pursuant to cl 4.6 of the Blacktown Local Environmental Plan 2015 (BLEP). This request demonstrates that compliance with the FSR standard is unreasonable and unnecessary because the proposed development meets the objectives of the standard, and of the zone. Further, in demonstrating that the exceedance of FSR will not result in any unreasonable amenity impacts, and will result in a building that complies with all established urban design principles under the relevant instruments, the applicant provides sufficient environmental planning grounds to vary the FSR standard.

11. The subject site is zoned R2 Low Density under the BLEP, within which development for the purposes of a seniors housing is permissible with consent. The proposed development is consistent with the objectives of this zone.

12. Demolition is permitted with consent under cl 2.7 of the Blacktown Local Environmental Plan 2015 (BLEP).

13. BLEP cl 4.3 sets a maximum height of 9m to the site, with which this development complies.

14. The application is accompanied by a Flood Study by CK Engineering Services dated April 2025, which demonstrates that the proposed development meets the flood planning requirements of s 5.21 of the BLEP.

15. The SEE confirms that the subject land has been utilised for residential purposes for many years and is within a suburban locality. From this, and from the amended architectural and stormwater drawings, I accept that all the essential services listed at BLEP cl 7.5 are available, or that adequate arrangements have been made to make them available when required

Conclusion

16. For these reasons, 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

17. The Court notes:

1. Blacktown City Council, as the relevant consent authority, approves under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the amendment of development application DA-24-00714 in accordance with the following documents:

1. Architectural plans:

DA110 Issue B2 – Basement Design Floor Plan	Vourtzoumis Architects	4/06/2025
DA111 Issue B2- Ground Design Floor Plan	Vourtzoumis Architects	4/06/2025
DA112 Issue B2– First Floor Design Plan	Vourtzoumis Architects	4/06/2025
DA113 Issue B2- Roof Design Plan	Vourtzoumis Architects	4/06/2025
DA140 Issue B2 – Areas Calculation Table	Vourtzoumis Architects	22/05/2025
DA141 Issue B2– GFA Calculation Plan – Basement Floor	Vourtzoumis Architects	22/05/2025
DA142 Issue B2- GFA Calculation Plan – Ground Floor	Vourtzoumis Architects	22/05/2025
DA143 Issue B2- GFA Calculation Plan – Level 01	Vourtzoumis Architects	22/05/2025
DA201 Issue B2– Proposed Floor Plan - Basement Floor– BLDG A & B	Vourtzoumis Architects	10/06/2025
DA202 Issue B2 - Proposed Floor Plan - Basement Floor– BLDG C	Vourtzoumis Architects	10/06/2025
DA203 Issue B2 – Proposed Floor Plan - Ground – BLDG A & B	Vourtzoumis Architects	10/06/2025
DA204 Issue B2– Proposed Floor Plan - Ground - BLDG C	Vourtzoumis Architects	10/06/2025
DA205 Issue B2 – Proposed Floor Plan – First Floor – BLDG A & B	Vourtzoumis Architects	10/06/2025
DA 206 Issue B2 – Proposed Floor Plan – First Floor – BLDG C	Vourtzoumis Architects	10/06/2025
DA207 Issue B2- Proposed Floor Plan - Roof –	Vourtzoumis Architects	10/06/2025
DA208 Issue B2 – Proposed Roof Plan - BLDG C	Vourtzoumis Architects	10/06/2025
DA311 Issue B2 – East & West Elevations	Vourtzoumis Architects	4/06/2025
DA312 Issue B2– North & South Elevations	Vourtzoumis Architects	4/06/2025
DA313 Issue B2– East & West Elevations – Building C	Vourtzoumis Architects	4/06/2025
DA314 Issue B2 – East & West Elevations – Building C	Vourtzoumis Architects	4/06/2025
DA411 Issue B2– Long Sections	Vourtzoumis Architects	10/06/2025
DA412 Issue B2– Long Sections	Vourtzoumis Architects	10/06/2025
DA413 Issue B2– Cross Sections	Vourtzoumis Architects	10/06/2025
DA414 Issue B2 – Cross Sections	Vourtzoumis Architects	10/06/2025

2. BASIX Certificate

Certificate	Dated
BASIX Certificate No. 1752774M_02	08/10/2025

3. Landscape Plans

Plan	Drawn by	Dated
DA 122 Issue B2 – Landscape Plan Overall	Irene Thanogiannis AILA	22/05/2025
DA 122A Issue B2 – Landscape Plan Overall – Roof Top	Irene Thanogiannis AILA	22/05/2025
DA 134 Issue B2 – Landscape Planting Schedule	Irene Thanogiannis AILA	22/05/2025

4. Stormwater Plans

Plan	Drawn by	Dated
Index, Issue 2.	C.K. Engineering Services	16/04/2025
Stormwater Detail Plan, Issue 2.	C.K. Engineering Services	16/04/2025
Basement, Issue 2.	C.K. Engineering Services	16/04/2025
First Floor Plan, Issue 2.	C.K. Engineering Services	16/04/2025
Roof Plan, Issue 2.	C.K. Engineering Services	16/04/2025
On-Site Detention Tank Details, Issue 2.	C.K. Engineering Services	16/04/2025
Pumpout Tank Details, Issue 2.	C.K. Engineering Services	16/04/2025
Erosion and Sediment Control Plan, Issue 2.	C.K. Engineering Services	16/04/2025
Catchment Plan, Issue 2.	C.K. Engineering Services	16/04/2025
Landscape Area Longsections, Issue 2.	C.K. Engineering Services	16/04/2025

5. Other documents

Plan	Drawn by	Dated
Plan of Management	KV Operations (Balmoral St) Pty Ltd	May 2025
Preliminary Site Investigation	NEO Consulting	16/05/2025
Letter of Service	Waste-Free (Aus) Pty Ltd	22/11/2024
Operational Waste Management Plan	Elephants Foot	16/04/2025
Waste Truck Access Letter	Varga Traffic Planning Pty Ltd	2/09/2025
Design Certificate	C.K. Engineering Services	16/04/2025
Flood Study	C.K. Engineering Services	April 2025
Site Contamination Specialist Review of Preliminary Site Investigation	Old Maple Pty Ltd	16/05/2025
Geotechnical Investigation Report	Nepean Geotechnics	14/03/2025
Clause 4.6 Variation – Floor Space Ratio	CSK Planning & Associates	22/05/2025

18. The Court orders:

1. The applicant is to pay the respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $9,000 within 28 days of the date of these Orders.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA/2024/00714 for demolition of all existing buildings and structures, tree removal, civil works and construction of a part 2 part 3 storey seniors housing development above a basement car park, in the form of an infill self-care housing, at Lots 93 and 94 in DP 291185 and Lot 347 in DP 238732, otherwise known as 99-101 Lock Street and 53 Pendant Avenue, Blacktown, subject to the conditions at Annexure A.

E Washington

Commissioner of the Court

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Annexure A (390 KB, pdf)

Decision last updated: 11 November 2025