Nagpal v Penrith City Council

[2025] NSWLEC 1473

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nagpal v Penrith City Council [2025] NSWLEC 1473

Hearing dates:

Conciliation conference 25 June 2025

Date of orders:

01 July 2025

Decision date:

01 July 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA24/0456, as amended for the demolition of existing structures, removal of 21 existing trees and construction of a single storey child care centre for 98 children with basement parking and associated stormwater and landscape works at 111 and 113 Victoria Street, Cambridge Park, NSW, 2747, is determined by the grant of development 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, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Penrith Local Environmental Plan 2010

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.33

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

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245

Category:

Principal judgment

Parties:

Vikas Nagpal (First Applicant)
Chyanika Nayar (Second Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
T To (Applicant)
D Le Breton (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2024/312645

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 (EPA Act) being an appeal against the deemed refusal of DA-24/0456 for demolition of existing structures, removal of 21 existing trees and construction of a single storey childcare centre for 98 children with basement parking and associated stormwater and landscape works (DA) at 111-113 Victoria Street, Cambridge Park NSW 2747, legally known as Lot 16 and Lot 17 in Deposited Plan 200569 (site).

2. The proceedings were initially listed for a hearing commencing 25 June 2025. The parties advised the Court that the issues in dispute had been resolved through 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 (LEC Act) between the parties that same day. 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 to the Applicant amending DA-24/0456 in accordance with the documents listed below:

• Estimated Development Cost Report prepared by M & T Cost Engineering Pty Ltd dated 16 June 2025

4. As part of the conciliation conference process the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent under s 4.16 of the EPA Act.

5. 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. I note that 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.

Jurisdictional Prerequisites

6. 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 and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

7. The DA was lodged to the Respondent on 26 September 2024. I am satisfied that owners consent has been provided for the DA as the Applicants are the owners. The Respondent notified the DA from 18 July to August 2024 and the amended DA from 26 May to 10 June 2025. One submission was received to the first notification whilst no submissions were received to the second notification.

Penrith Local Environmental Plan 2010

8. 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, I have had regard to the objectives of the zone.

9. Clause 2.7 demolition permits demolition with consent, as sought by the amended DA.

10. Clause 4.3 height of buildings applies and allows a maximum of 8.5m. The architectural plans prepared by Design M Studio with various dates (architectural plans) demonstrate that the amended proposal is below 8.5m.

11. Clause 7.1 earthworks applies to the site. The DA is accompanied by a Geotechnical Investigation Report prepared by EI Australia dated 26 March 2025 (Geotechnical Report) and Waste Management Plan prepared by Dickens Solutions dated May 2025 (Waste Management Plan) that adequately deal the provisions of cl 7.1. The jurisdictional statement details how each of the provisions have been met, which I accept.

12. Clause 7.4 sustainable development applies to the proposal. On the basis of the Ecologically Sustainable Design Assessment Report prepared by Senica Consultancy Group dated 28 April 2025 (ESD Report) and parties detailed submissions at paragraph 38, I accept that the principles of sustainability have been addressed.

13. Clause 7.7 servicing applies to the proposal. As detailed in the jurisdictional statement, and Statement of Environmental Effects prepared by MMDC Pty Ltd dated 1 May 2025 (SEE), all services are currently provided and will continue. Vehicular access is safely provided by the amended DA as demonstrated by the Updated Traffic and Parking Impacts Report prepared by TEF Consulting dated 9 May 2025.

14. Clause 7.30 urban heat applies to the site. On the basis of the ESD Report, SEE and jurisdictional statement, I accept that the planning and design measures have been incorporated to reduce the urban heat island effect. Such measures include passive cooling through the building’s design, light coloured building materials, photovoltaic panels, landscaped planting on the roof slab and deep soil areas, amongst others.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the site is located in the Hawkesbury-Nepean Catchment. I accept the parties’ agreement the provisions have been satisfied on the basis of the:

1. Stormwater drainage plans prepared by Rammy Associates Pty Ltd dated 12 June 2025.

2. Stormwater Management Strategy prepared by Rammy Associates Pty Ltd dated 4 June 2025, accompanying MUSIC-link Report and supplementary letter.

3. Arboricultural Impact Assessment Report prepared by Hugh the Arborist dated 11 June 2025 (refer to Tab 7 of Exhibit EJF-3).

4. Waste Management Plan.

5. Preliminary Site Investigation, Detailed Site Investigation and Remediation Action Plan (all prepared by Sydney Environmental Group)

6. Geotechnical Report.

7. Jurisdictional Statement.

16. I accept the parties’ agreement that ss 6.6, 6.6, 6.8, 6.9 are satisfied in that the Councils Water Sensitive Urban Design Policy has been incorporated into the proposed development, that there will be a neutral or beneficial effect on water and that there will be minimal or no impacts on natural waterbodies, aquatic ecology, wetlands and recreational areas.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. 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, Detailed Site Investigation and Remediation Action Plan (all prepared by Sydney Environmental Group) which demonstrate that the site can be made suitable for the proposed use subject to 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

18. Chapter 3 educational establishments and childcare facilities of SEPP TI applies to the proposed development.

19. 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 have considered the provisions of ss 3.22, 3.23, 3.26, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

Heads of consideration

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

Conclusion

21. 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.

22. 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.

23. 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

24. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA24/0456, as amended for the demolition of existing structures, removal of 21 existing trees and construction of a single storey child care centre for 98 children with basement parking and associated stormwater and landscape works at 111 and 113 Victoria Street, Cambridge Park, NSW, 2747, is determined by the grant of development consent subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

Annexure A (346 KB, pdf)

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Decision last updated: 01 July 2025