Valenzuela v Blacktown City Council

[2025] NSWLEC 1724

Land and Environment Court

New South Wales

Medium Neutral Citation:

Valenzuela v Blacktown City Council [2025] NSWLEC 1724

Hearing dates:

Conciliation conference on 01 October 2025

Date of orders:

01 October 2025

Decision date:

01 October 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No. DA-18-01130 is modified in the terms in Annexure A.

(3) Development Consent No. DA-18-01130 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION – child care centre – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55, 8.9

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

Environmental Planning and Assessment Regulation 2021 (NSW), s 113

Category:

Principal judgment

Parties:

Oscar Valenzuela (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Apex Law (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2024/380091

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Blacktown City Council, of Mr Valenzuela’s request to modify Development Consent DA-18-01130 at 178 Crown Street, Grantham Farm, Lot 11 DP 129320. Modification application MOD-24-00289 requests the amendment of conditions 1.7.1 and 3.7.2 of the conditions of consent to increase the child placement numbers from 100 to 112.

2. These proceedings have been brought to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (NSW) (EPA Act).

3. Following an earlier unsuccessful conciliation, at the parties’ request, the Court arranged a further conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 1 October 2025. I presided over the conciliation conference, at which the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and modifying the consent in accordance with the amended modification application.

4. 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 4.55 of the EPA Act to modify the development consent.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified to the Court and from this, I note the following points.

6. I must be satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted pursuant to s 4.55(2)(a) of the EPA Act. In this regard I note that the development remains a child care centre, with the same built form. The only physical change of note is to an acoustic fence and the allocation of parking in the basement. The building had in its original form, and maintains, capacity for the additional 12 children proposed in this modification, and the environmental impacts have been assessed and are minimal. On this basis I am satisfied that the development, as modified, will be substantially the same as the development for which consent was originally granted.

7. The original consent does not contain any conditions of consent resulting from any concurrence, or requirements for compliance with general terms of approval, as imposed by a Minister, public authority or approval body pursuant to s 4.55(2)(b).

8. The modification application was adequately notified from 1-15 July 2025. No submissions were received during this time, and the requirements of EPA Act s 4.55(2)(c) and subs (d) are met.

9. Finally, based on the information contained in the Planning Report by Ingham Planning Pty Ltd dated September 2024, the amended documents and the parties’ joint submission on jurisdictional prerequisites, I am satisfied that all matters referred to in s 4.15(1) of the EPA Act, as are of relevance to the development the subject of this application, have been considered, as required by s 4.55(3) and that all jurisdictional prerequisites have been met.

10. 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 and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Conclusion

11. The Court notes:

1. The respondent has approved, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending modification application MOD-24-00289 to rely on the following documents (amended application):

1. Noise Impact Assessment prepared by Rodney Steven Acoustics (Rev 9) dated 26 August 2025.

2. Traffic and Parking Assessment Report prepared by Varga Traffic and Planning Pty Ltd dated 10 September 2025.

3. Basement Car Parking Plan of Management (Ref 24012), undated.

2. The applicant filed the amended application with the Court on 1 October 2025.

Orders

12. The Court orders:

1. The appeal is upheld.

2. Development Consent No. DA-18-01130 is modified in the terms in Annexure A.

3. Development Consent No. DA-18-01130 as modified by the Court is Annexure B.

E Washington

Commissioner of the Court

Annexure A (50.2 KB, pdf)

Annexure B (424 KB, pdf)

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Decision last updated: 01 October 2025