Pam Ventures Pty Ltd v Blacktown City Council

[2025] NSWLEC 1274

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pam Ventures Pty Ltd v Blacktown City Council [2025] NSWLEC 1274

Hearing dates:

Conciliation conference 15 April 2025

Date of orders:

30 April 2025

Decision date:

30 April 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent thrown away as a result of the Applicant being allowed to rely upon the Amended Development Application in the amount of $10,000 payable within 28 days of the date of these Orders.

(2) The appeal is upheld.

(3) Development Application DA-24-00068, as amended, for the removal of trees, demolition of all existing structures and construction of a two-storey centre-based child care facility to accommodate 62 places and associated landscaping and acoustic barriers/fencing on Lots 12 & 13 DP2161, being 95-97 Peter Street, Blacktown, is determined by the grant of consent subject to the conditions set out in 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 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Blacktown Local Environmental Plan 2015, cll 2.3, 2.7, 4.3, 7.5

Education and Care Services National Regulations

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.26

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

Category:

Principal judgment

Parties:

Pam Ventures Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
L Raffaele (Solicitor) (Applicant)
G McKee (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2024/219689

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-24-00068 for tree removal, demolition of existing buildings and, construction of a two (2) storey child care facility with basement parking (DA) at 95-97 Peter Street, Blacktown (Lots 12 and 13, Section B, DP 2161) (site).

2. The proceedings commenced as a hearing on 15 April 2025. On the basis of the joint expert reports, amended plans and further information, the parties advised the Court that there were no remaining issues, and a conciliation conference was requested. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 15 April 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 to the Applicant amending DA-24-00068 in accordance with the documents listed below:

Reference/ DWG No	Title/Description	Revision	Prepared by	Date
Architectural Plans:
1	Compliance Table, Location Plan	E	Baini Design	19/02/2025
2	Location Analysis Plan	E	Baini Design	19/02/2025
3	Site Analysis Plan	E	Baini Design	19/02/2025
4	Shadow Diagrams	E	Baini Design	19/02/2025
5	Shadow Diagrams	E	Baini Design	19/02/2025
6	Site Plan and Demolition Plan	E	Baini Design	19/02/2025
7	Basement Plan	E	Baini Design	19/02/2025
8	Ground Floor Plan	E	Baini Design	19/02/2025
9	First Floor Plan	E	Baini Design	19/02/2025
10	Roof Plan	E	Baini Design	19/02/2025
11	Elevations, Section	E	Baini Design	19/02/2025
12	Elevations	E	Baini Design	19/02/2025
13	Rain Water Tank Details	E	Baini Design	19/02/2025
14	Callout Elevations	E	Baini Design	19/02/2025
15	Kitchen and Laundry Details	E	Baini Design	19/02/2025
16	Typical Nappy Change	E	Baini Design	19/02/2025
17	Typical Bottle Prep Detail	E	Baini Design	19/02/2025
18	Typical Craft Bench Detail	E	Baini Design	19/02/2025
19	Schedule of Finishes	E	Baini Design	19/02/2025
20	Solar Access Plans	E	Baini Design	19/02/2025
21	Outdoor Calc. Plan – Ground Floor	E	Baini Design	19/02/2025
22	Outdoor Calc. Plan – First Floor	E	Baini Design	19/02/2025
23	Indoor Calc. Plan – 0-2	E	Baini Design	19/02/2025
24	Indoor Calc. Plan – 2-3	E	Baini Design	19/02/2025
25	Indoor Calc. Plan – 3-5	E	Baini Design	19/02/2025
26	Fencing Detail – Ground Floor	E	Baini Design	19/02/2025
27	3D Perspectives	E	Baini Design	19/02/2025
28	Streetscape Elevation	E	Baini Design	19/02/2025
29	Accessible Details – Basement Floor	E	Baini Design	19/02/2025
30	Accessible Details – Ground Floor	E	Baini Design	19/02/2025
31	Accessible Details – First Floor	E	Baini Design	19/02/2025
Civil Engineering Plans:
000	Cover Sheet, Notes and Legend	F	Telford Civil	31/10/2024
101	Stormwater Concept Plan, Basement Level, Sheet 1 of 2	F	Telford Civil	31/10/2024
102	Stormwater Concept Plan, Basement Level, Sheet 2 of 2	F	Telford Civil	31/10/2024
103	Stormwater Concept Plan Ground Level	F	Telford Civil	31/10/2024
104	OSD Catchment Plan & Level 1 Plan	F	Telford Civil	31/10/2024
105	RWT Catchment Plan and Node Water Balance	F	Telford Civil	31/10/2024
106	On-Site Detention Details and Calculation Sheets	F	Telford Civil	31/10/2024
107	Rainwater Tank Details	F	Telford Civil	31/10/2024
108	Miscellaneous Details Sheet	F	Telford Civil	31/10/2024
109	Long Section & Miscellaneous Details	F	Telford Civil	31/10/2024
Proposed Bulk Earthworks Plan:
C000	General Notes, Locality Plan and Drawing Schedule	A	Telford Civil	18/03/2025
C100	Bulk Earthworks Layout Plan	A	Telford Civil	18/03/2025
C200	Typical Cross Sections	A	Telford Civil	18/03/2025
Landscape Plans:
01	Landscape Concept	G	Outside In	21/03/2025
Proposed Driveway Longsections:
HC671-2324-1	Proposed Driveway Longsection Sheet No. 1/6	-	Hemanote Consultants	20/03/2025
HC671-2324-2	Proposed Driveway Longsection Sheet No. 2/6	-	Hemanote Consultants	20/03/2025
HC671-2324-1	Proposed Driveway Longsection Sheet No. 3/6	-	Hemanote Consultants	20/03/2025
HC671-2324-1	Proposed Driveway Longsection Sheet No. 4/6	-	Hemanote Consultants	20/03/2025
HC671-2324-1	Proposed Driveway Longsection Sheet No. 5/6	-	Hemanote Consultants	20/03/2025
HC671-2324-1	Proposed Driveway Longsection Sheet No. 6/6	-	Hemanote Consultants	20/03/2025
Report:
Name			Prepared by	Date
Arboricultural Impact Assessment and Tree Management Plan			Horticultural Management Services	20/03/2025
Environmental Noise Impact Assessment			Dat Design Pty Ltd	21/03/2025
Plan of Management			-	24/03/2025

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. I am satisfied that owners consent accompanied the DA as provided in the Class 1 Application in tab 1. The Respondent notified the DA from 19 March 2024 to 4 April 2024. Seven submissions were received.

8. At the commencement of the hearing, the Court and parties heard the oral concerns from two objectors, who helped the parties better understand the concerns raised. As the parties have entered into an agreement, the Court’s role is limited in considering the issues raised to legal matters. In reaching agreement, the parties have advised the Court that they have considered the merit concerns raised in the written and oral objections.

Blacktown Local Environmental Plan 2015

9. The subject site is zoned R3 Medium 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. 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 10m. The Architectural Plans prepared by Baini Design (architectural plans) demonstrate that the amended proposal is below 10m.

11. Clause 7.5 essential services applies to the proposed development. I accept that all listed services are available (existing sewer, water supply, electricity and sewer) or that adequate arrangements have been made (proposed vehicular access and stormwater management system) as stated in the Statement of Environmental Effects (SEE) and shown in the amended DA documentation.

State Environmental Planning Policy (Resilience and Hazards) 2021

12. 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 Environmental Site Investigation (PSI) prepared by Environmental Consulting Servies in relation to the proposed use.

13. The PSI concludes that the site has been used for residential purposes, that there was no reason to suspect the site was contaminated and that the site is suitable for the proposed use. Conditions of consent have been recommended for the demolition and construction phase, which have been included in 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

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

15. 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 detailed jurisdictional statement (paragraphs 42-53) 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 these matters have been addressed.

Conclusion

16. 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.

17. 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.

18. 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

19. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent thrown away as a result of the Applicant being allowed to rely upon the Amended Development Application in the amount of $10,000 payable within 28 days of the date of these Orders.

2. The appeal is upheld.

3. Development Application DA-24-00068, as amended, for the removal of trees, demolition of all existing structures and construction of a two-storey centre-based child care facility to accommodate 62 places and associated landscaping and acoustic barriers/fencing on Lots 12 & 13 DP2161, being 95-97 Peter Street, Blacktown, is determined by the grant of consent subject to the conditions set out in Annexure A.

S Porter

Commissioner of the Court 

Annexure A

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Decision last updated: 30 April 2025