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[2025] NSWLEC 1191
General information, not legal advice.
Land and Environment Court (NSW)
2025-04-01
Byrne AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Abboud v Penrith City Council [2025] NSWLEC 1191
Hearing dates: Conciliation Conference on 2 December 2024
Date of orders: 01 April 2025
Decision date: 01 April 2025
Jurisdiction: Class 1
Before: Byrne AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Application No DA-23/0802, as amended, for the demolition of existing structures, tree removal, and construction of a two storey child care centre for 54 children with basement car parking and associated works on land legally described as Lot 2057 in Deposited Plan 255371 and known as 3 Blackwell Avenue, St Clair, NSW, 2759, is determined by the grant of development consent subject to the conditions at Annexure A.
(3) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $11,000 within 21 days of the date of these orders.
Catchwords: DEVELOPMENT APPEAL – child care centre – urban heat – 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, ss 34, 39
Education and Care Services National Regulations
Environmental Planning and Assessment Regulation 2021, s 38
Penrith Local Environmental Plan 2010, cll 2.3, 2.7, 4.3, 5.21
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 3.22
Texts Cited: Child Care Planning Guidelines
Community Engagement Strategy and Community Participation Plan 2022-26
Penrith Development Control Plan 2014
Category: Principal judgment
Parties: Joe Abboud (Applicant)
Penrith City Council (Respondent)
Representation: Counsel:
J Reid (Applicant)
D Le Breton (Solicitor) (Respondent)
Solicitors:
Macpherson Kelley (Applicant)
HWL Ebsworth (Respondent)
File Number(s): 2024/232514
Publication restriction: No
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal by the Penrith City Council (the Council) of DA23/0802 (the Development Application) for the demolition of existing structures, tree removal and construction of a two storey child care centre for 54 children with basement car parking and associated works (the Proposed Development) at 3 Blackwell Avenue, St Clair, NSW, 2759 (the Site) being Lot 2057 in DP 255371 (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site and at Court. I presided over the conciliation conference.
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 and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court pursuant to s 39(2) of the LEC Act to uphold the class 1 appeal and grant development consent to the Proposed Development with conditions at Annexure A.
There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions**.**
Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters.
The Applicant is the owner of the Site. The DA was made by Mr Zenere as agent for and with the written consent of the owner of the Site.
On 17 July 2024, the DA was referred to the Department of Education pursuant to s 3.22 of the State Environmental Planning Policy (Transport and Infrastructure) 2021*.*
The DA originally involved an area of “simulated” outdoor play space on the first floor as part of the area was roofed, contained outer walls greater than 1.4 metres and the opening to the Blackwell Avenue is less than a third of the perimeter.
The Amended DA no longer proposes this simulated outdoor play space. Therefore, concurrence from the NSW Department of Education is not required.
The Site is zoned R2 Low Density Residential under the Penrith Local Environment Plan 2010 (PLEP).
“Centre-based child care facilities” are nominated as development which is permissible with consent in the R2 Zone. Demolition works are permissible with consent under cl 2.7 of the PLEP.
Clause 2.3 PLEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
To the extent that the R2 Zone objectives are relevant, the Amended DA is consistent with the objectives of the R2 Zone. The development provides essential child care services to meet the needs of the residents, which has been designed in keeping with the character of the area.
In relation to cl 5.21 (Flood Planning), the Site is not mapped as a Flood Planning Area under the PLEP. However, the Council’s Overland Flow Flood Overview Study shows the Site has the potential for overland flow along Blackwell Avenue and Bradman Avenue.
The Flood Impact Assessment prepared by Catchment Simulation Solutions dated 14 August 2024 (FIA) includes a discussion of the matters in cl 5.21 of the PLEP. The floor levels of the proposed development have been raised to consider the flood levels. The ground floor level within the childcare centre is located at 41.35 m AHD which is above the peak 1% AEP flood level and peak PMF level.
The Court is satisfied that the development is consistent with the matters in cl 5.21(2) and has considered the matters in cl 5.21(3) of the PLEP.
In particular, with regard to cl 7.30 (Urban Heat) which applies to the Penrith Local Government Area given its Western Sydney location, the parties have set out the measures in the Amended DA that meet this requirement. See par 44 of the Statement.
Clause 7.30 (Urban Heat) requires the consent authority to be satisfied that planning and design measures are incorporated to reduce the urban heat island effect that achieve the matters in cl 7.30(3). The language of cl 7.30(3) requires consideration as to whether planning and design measures are incorporated to maximise green infrastructure and the other matters set out in the clause.
I accept the parties’ analysis and agreed position and am satisfied that ‘urban heat’ considerations have been considered and that the proposed development maximises green infrastructure and incorporates planning and design measures to reduce the urban heat island effect.
I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in detail in the parties’ Statement, and agree with the parties conclusions that no jurisdictional impediments arise pursuant to:
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Sustainable Buildings) 2022
The Education and Care Services National Regulations provides extensive controls and requirements in addition to that of the SEPPs, PLEP and Penrith Development Control Plan 2014 (Penrith DCP).
Compliance with Education and Care Services National Regulations is assessed as part of the assessment against the Child Care Planning Guidelines in the Applicant’s SEE at pp 85 to 87 and filed in the Court.
No jurisdictional issues arise with respect to the national and state legislative controls and requirements specific to child care facilities.
The DA was notified in its original form, in accordance with the Respondent’s Community Engagement Strategy and Community Participation Plan 2022-26 between 2 October and 16 October 2023. Seven submissions were received in response to the notification of the DA. A number of local residents addressed the Court on site.
The matters raised in the submissions concerned:
potential amenity impacts, including in relation to noise;
the scale and character of the overall development, given the attributes of the neighbourhood;
construction related impacts, including potential damage to existing adjacent buildings;
potential traffic impacts, including from a safety perspective;
insufficient car parking to be provided, including associated impacts on street parking available in the area;
servicing of the development; and
suitability of the site for the proposed development.
I am satisfied that the issues raised by the objectors, where appropriate and reasonable, have been adequately addressed in Council’s Statement of Facts and Contentions, the Amended DA and agreed conditions and the objectors were accorded procedural fairness.
For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.
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. 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.
The Court notes that:
The Respondent has approved, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No DA23/0802 to rely upon the following amended documents (Amended Development Application), as filed with the Court:
| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No. LEC-00 Issue J | Drawing List + General Notes | Archizen Architects | 20 January 2025 | | Drawing No. LEC-01 Issue J | Site, Analysis + Demolition | 20 January 2025 | | Drawing No. LEC-02 Issue J | Basement Floor (L0) Plan | 20 January 2025 | | Drawing No. LEC-03 Issue J | Ground Floor (L1) Plan | 20 January 2025 | | Drawing No. LEC-04 Issue J | First Floor (L2) Plan | 20 January 2025 | | Drawing No. LEC-05 Issue J | East (Blackwell Ave) Elevation | 20 January 2025 | | Drawing No. LEC-06 Issue J | North (Bradman Ave) Elevation | 20 January 2025 | | Drawing No. LEC-07 Issue J | West Elevation | 20 January 2025 | | Drawing No. LEC-08 Issue J | South Elevation | 20 January 2025 | | Drawing No. LEC-09 Issue J | Section A & Driveway Profile | 20 January 2025 | | Drawing No. LEC-10 Issue J | Section B | 20 January 2025 | | Drawing No. LEC-11 Issue J | Overall Plan: Basement (L0) | 20 January 2025 | | Drawing No. LEC-12 Issue J | Overall Plan: Ground Floor (L1) | 20 January 2025 | | Drawing No. LEC-13 Issue J | Overall Plan: Upper Floor (L2) | 20 January 2025 | | Drawing No. LEC-14 Issue J | Shadow Diagrams @ Jun 21 | 20 January 2025 | | Drawing No. LEC-15 Issue J | Shadows @ Mar/Sept 21 | 20 January 2025 | | Drawing No. LEC-16 Issue J | Shadows @ Dec 21 | 20 January 2025 | | Drawing No. LEC-17 Issue J | GFA + Deep Soil Diagrams | 20 January 2025 | | Drawing No. LEC-18 Issue J | Acoustic Fencing | 20 January 2025 | | Drawing No. LEC-19 Issue J | Bradman Ave Streetscape | 20 January 2025 | | Drawing No. LEC-20 Issue J | Shadows Cast on Neighbour | 20 January 2025 | | Landscape Plans | | 2 | Drawing No. 1/4 | Tree Plan | Tessa Rose Playspace and Landscape Design | 14 December 2024 | | Drawing No. 2/4 Revision 3 | Ground Playspace/Landscape - Plants | 24 January 2025 | | Drawing No. 3/4 Revision 3 | Ground Playspace/Landscape - Surfaces | 24 January 2025 | | Drawing No. 4/4 Revision 3 | First Floor Playspace/Landscape | 24 January 2025 | | Engineering Plans | | 3 | Drawing No. S100 Revision 03 | Cover Sheet | Deboke Engineering Consultants | 10 December 2024 | | Drawing No. S101 Revision 03 | Specifications Sheet | 10 December 2024 | | Drawing No. S200 Revision 03 | Basement Plan | 10 December 2024 | | Drawing No. S201 Revision 03 | Ground Floor Plan | 10 December 2024 | | Drawing No. S202 Revision 03 | First Floor Plan | 10 December 2024 | | Drawing No. S203 Revision 03 | Roof Plan | 10 December 2024 | | Drawing No. S300 Revision 03 | Details Sheet 1 of 4 | 10 December 2024 | | Drawing No. S301 Revision 03 | Details Sheet 2 of 4 | 10 December 2024 | | Drawing No. S302 Revision 03 | Details Sheet 3 of 4 | 10 December 2024 | | Drawing No. S303 Revision 03 | Details Sheet 4 of 4 | 10 December 2024 | | Drawing No. S400 Revision 03 | Erosion and Sediment Control Plan | 10 December 2024 |
| Documents | | 4 | Schedule of Amendments | Archizen Architects | 16 December 2024 | | 5 | Stormwater Management Report (Revision 03) | Deboke Engineering Consultants | 13 December 2024 | | 6 | Amended Environmental Noise Impact Assessment | Day Design Pty Ltd | 16 December 2024 | | 7 | Construction Noise & Vibration Management Plan | Day Design Pty Ltd | 16 December 2024 | | 8 | Waste & Recycling Management Services | Waste Clear | 5 December 2024 | | 9 | Letter regarding private waste collection services | WasteFree | 2 October 2024 | | 10 | Arboricultural Impact Assessment (Revision B) | Hugh The Arborist | 29 January 2025 | | 11 | Plan of Management (Revision 3) | | 29 January 2025 | | 12 | Amended Waste Management Plan | Dickens Solutions | October 2024 | | 13 | Traffic and Parking Assessment Report | Varga Traffic Planning Pty Ltd | 30 October 2024 | | 14 | Proposed external finishes schedule | Archizen Architects | 20 January 2025 |
The Court orders that:
The appeal is upheld.
Development Application No DA-23/0802, as amended, for the demolition of existing structures, tree removal, and construction of a two storey child care centre for 54 children with basement car parking and associated works on land legally described as Lot 2057 in Deposited Plan 255371 and known as 3 Blackwell Avenue, St Clair, NSW, 2759, is determined by the grant of development consent subject to the conditions at Annexure A.
The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $11,000 within 21 days of the date of these orders.
Annexure A (364818, pdf)
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Abboud
Penrith City Council [2025] NSWLEC 1191