Abboud v Penrith City Council

Category: Principal judgment

Parties: Joe Abboud (First Applicant)
Charbel Abboud (Second Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
J Reid (Applicants)
H Grace (Respondent)
Solicitors:
Macpherson Kelley (Applicants)
Dentons Australia (Respondent)

File Number(s): 2025/242262

Publication restriction: Nil

JUDGMENT

Introduction

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), being an appeal against the refusal of Development Application No. DA25/0331 (DA) for demolition of existing structures and construction of a 47 place centre based child care centre with basement parking and associated works on land legally described as Lot 228 in Deposited Plan 709443 and known as 94 Melville Road, St Clair, NSW 2759 (site).

2. This matter commenced as a hearing however on Day 2 the parties, having reached agreement, requested that the matter be relisted as a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The request was granted and the conciliation conference which I presided over was held on 26 March 2026.

Outcome

3. At the conciliation conference, agreement was reached as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is a decision that the Court could have made in the proper exercise of its functions.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the amended plans that are referred to in Condition 1 of Annexure A and additional information submitted in response to the contentions. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Council as the consent authority consented to the amendment of the application on a number of occasions pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). Leave was granted by the Court on two occasions to amend the application. The plans and documents comprising the final amended application were submitted to the Court on 25 and 26 March 2026 and are listed under Condition 1 of the conditions of consent at Annexure A. In summary the final changes made to the proposal, post expert reporting, that resulted in the application now being satisfactory to the parties include:

6. Lowering of perimeter planting to the finished ground level of the outdoor play area to ensure sufficient soil area for optimum growth;

7. Changes to proposed planting to ensure adequate screening; and

8. Changes to the driveway location and design to reduce impact on the roots of the existing street tree on Melville Road.

9. In addition, further revised information was provided in the form of an updated survey plan, updated materials and finishes and ESD schedule, and additional technical specifications for the proposed artificial grass. Additional agreed conditions of consent have also been proposed.

Jurisdictional matters

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below.

Penrith Local Environmental Plan 2010

8. The site is zoned R2 ‘Low Density Residential’ in accordance with the Penrith Local Environmental Plan 2010 (PLEP). The proposed development for a centre-based child care facility is permissible with consent in the zone and the parties advise that regard has been had to the zone objectives, as far as relevant, as required by cl 2.3. The parties agree that the application is consistent with the objectives of the zone including most notably “to enable other land uses that provide facilities or services to meet the day to day needs of residents”.

9. Demolition of the existing buildings on site is permissible with consent in accordance with cl 2.7.

10. Clause 4.3 height of buildings applies to the site, permitting a maximum height of 8.5 m. The proposal has a maximum height of 8.5 m and therefore complies with this requirement.

11. No maximum floor space ratio (FSR) applies to the site in accordance with cl 4.4 of PLEP. Notwithstanding s 3.25 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) provides that where a local environmental plan does not prescribe a maximum FSR for a centre-based child care facility, development consent must not be granted for such a facility in the R2 Low Density Residential Zone if the FSR of the building exceeds 0.5:1. The amended proposal does not exceed this limit having a maximum FSR of 0.37:1 as shown on the amended plans.

12. Clause 5.21 in respect of flood planning applies as the site is affected by the 1:100 AEP in respect of overland flow. I accept on the basis of the parties’ agreement, Flood Risk Management Plan (Deboke Engineering, 17 November 2025), architectural plans (Archizen Architects, 6 March 2026), civil plans (Deboke Engineering Consultants, 13 February 2026) and conditions of consent that matters outlined in cl 5.21(2) and (3) have been satisfied and / or considered as required.

13. Clause 7.1 earthworks also applies to the proposal. In this regard I accept the parties’ agreement that the provisions of cl 7.1 have been considered as demonstrated in the civil plans (Deboke Engineering Consultants, 13 February 2026), and the Geotechnical and Salinity Investigation Report (Australian Ground Services Pty Ltd, 19 September 2025), and having regard to the recommended conditions of consent.

14. Clause 7.4 also applies in respect of sustainable development and requires the consent authority to have regard to the principles of sustainable development. I accept that consideration has been given to the relevant matters having regard to the ESD Assessment Report (Senica Consulting Group, 28 November 2025), Amended Waste Management Process (23 September 2026), Architectural plans (Archizen Architects, 6 March 2026), Civil plans (Deboke Engineering Consultants, 13 February 2026), Proposed external finishes & ESD schedule (Archizen Architects, 22 March 2026), artificial turf specifications and recommended condition of consent.

15. I also accept that consideration has been given to the matters outlined in cl 7.6 in respect of salinity having regard to the Geotechnical and Salinity Investigation Report (Australian Ground Services Pty Ltd, 19 September 2025).

16. Clause 7.7 requires satisfactory arrangements in respect of essential services. I am satisfied in respect of this provision having regard to the existing residential use of the site and proposed conditions of consent.

17. The parties advise that cl 7.30 urban heat has also been satisfied by the ESD Assessment Report (Senica Consulting Group, 28 November 2025), Proposed external finishes & ESD schedule (Archizen Architects, 22 March 2026), Architectural plans (Archizen Architects, 6 March 2026) Landscape plans (Tessa Rose Playspace and Landscape Design, 22 February 2026) and recommended conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) also applies to the site. To address this provision a Stage 1 Preliminary and Stage 2 Detailed Site Investigation (Australian Ground Sciences, 2 May 2025) has been prepared which concludes that the site is suitable for the proposed use. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of the RH SEPP have been satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. The site is located within the Hawkesbury-Nepean regulated catchment for the purposes of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) and accordingly Ch 6 Pt 6.2 applies. I am satisfied in respect of the requirements of s 6.6 water quality and quantity, s 6.7 aquatic ecology, s 6.8 flooding, s 6.9 recreation and public access and s 6.10 total catchment management (in so far as they are applicable) on the basis of the parties’ agreement, the stormwater drainage plans (Deboke Engineering Consultants, 13 February 2026), Stormwater Management Report (Deboke Engineering Consultants, 27 November 2025), (Geotechnical and Salinity Investigation Report (Australian Ground Services Pty Ltd, 19 September 2025) and the proposed conditions of consent.

State Environmental Planning Policy (Transport and Infrastructure) 2021

20. Chapter 3 Educational Establishments and Child Care Facilities of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies as the proposal is for a centre-based childcare facility. It contains specific provisions for centre based child care and requires consideration of the Child Care Planning Guideline (Department of Planning, Industry and Environment, September 2021). I am satisfied on the basis of the parties’ agreement, the amended plans and the Statement of Environmental Effects (Think Planners, 8 May 2025) that the proposal complies with the relevant provisions of the TI SEPP and has due regard to the Guideline.

21. Specifically I note as outlined above that s 3.25 of the TI SEPP provides that where a Local Environmental Plan does not prescribe a maximum FSR for a centre-based child care facility, development consent must not be granted for such a facility in the R2 Low Density Residential Zone if the FSR for the building exceeds 0.5:1. The PLEP does not prescribe a maximum FSR for the subject site. A maximum FSR of 0.5:1 therefore applies in accordance with s 3.25 of the TI SEPP. The amended proposal complies with this requirement having a maximum FSR of 0.37:1 as shown on the amended plans.

Other matters

22. The development application is made with the consent of the owners of the site in accordance with s 23 of the EPA Reg.

23. The Respondent notified the original development application between 2 and 15 June 2025. 14 submissions were received in response to the notification. Matters raised by way of objection include traffic parking and access, inappropriate location, safety, noise, privacy, inconsistency with local character, amenity impacts, excavation extent and risk to adjoining properties, lack of demand and solar access. The parties advise that the amended plans were further notified from 1 to 25 January 2026 and that a further 2 submissions were received generally raising similar issues. In addition, 6 parties addressed the Court onsite at the commencement of the hearing. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submissions.

Conclusion

24. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

25. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

26. The Court orders:

27. The appeal is upheld.

28. Development Application No. DA25/0331 for demolition of existing structures and construction of a 47 place centre based child care centre with basement parking and associated works on land legally described as Lot 228 in Deposited Plan 709443 and known as 94 Melville Road, St Clair, NSW 2759, is determined by the grant of development consent subject to the conditions at Annexure A.

H Miller

Acting Commissioner of the Court

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Annexure A (727 KB, pdf)