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[2025] NSWLEC 1727
General information, not legal advice.
Land and Environment Court (NSW)
2025-10-07
Horton C
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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: Australian Investments Blacktown Pty Ltd v Blacktown City Council [2025] NSWLEC 1727
Hearing dates: Conciliation conference on 24 September 2025
Date of orders: 07 October 2025
Decision date: 07 October 2025
Jurisdiction: Class 1
Before: Horton C
Decision: The Court orders that:
(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application as agreed or assessed.
(2) The appeal is upheld.
(3) Development consent is granted to Development application DA-24-00129, as amended, for the demolition of existing structures and construction of a five storey, one hundred and fifty-six (156) place child care facility with basement car parking for forty eight (48) vehicles at 6 Fourth Avenue, Blacktown NSW 2148 legally identified as Lot 144 in Deposited Plan 12410, subject to conditions in Annexure A.
Catchwords: DEVELOPMENT APPLICATION: centre-based child care development in R4 High Density Residential zone – groundwater assessment – conciliation conference – agreement between parties - orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 4.46, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Water Management Act 2000 (NSW), ss 89, 90, 91
Blacktown Local Environmental Plan 2015, cll 4.3, 4.4, 7.5, 7.7
Education and Care Services National Regulations 2011 (NSW), regs 107, 108
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, Ch 3, ss 3.1, 3.2
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23
Texts Cited: Blacktown Development Control Plan 2015
Blacktown Water Sensitive Urban Design Guidelines 2020
Department of Planning, Industry and Environment, Child Care Planning Guidelines, September 2021
Category: Principal judgment
Parties: Australian Investments Blacktown Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation: Counsel:
J Reid (Applicant)
N Hammond (Respondent)
Solicitors:
Fortis Law (Applicant)
Clayton Utz (Respondent)
File Number(s): 2024/189519
Publication restriction: Nil
COMMISSIONER: Development for the purpose of a five-storey centre-based childcare with basement parking is proposed on a site at No 6 Fourth Avenue, Blacktown NSW. In general terms, the proposal is for childcare administration, reception and associated functions at the ground floor, along with indoor and outdoor play areas for children 0-2 years of age, and 2-3 years of age. Indoor and outdoor play areas are then located on Level 1, 2, 3 and 4 for children aged 3-5.
A development application for such a proposal, DA-24-00129, was lodged by the Applicant in these proceedings, Australian Investments Blacktown Pty Ltd with Blacktown City council (the Council) on 20 February 2024 (the Original DA).
The Original DA was notified between 10 April and 24 April 2024, with 7 submissions received in response.
As the Original DA was not otherwise determined, the Applicant appealed its deemed refusal on 22 May 2024, in Class 1 of the Court’s jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
The Court granted the Applicant leave to amend the Original DA on 25 March 2025, after which I note the Council notified residents and received two further submissions.
The matter was initially listed before me for hearing on 28-30 May 2025, and was adjourned part heard, with directions for further joint expert conferencing that resulted in joint expert reports being filed with the Court on engineering filed 12 June 2025, and on geotechnical engineering on 18 September 2025.
At the resumption of the hearing on 24 September 2025, the parties advised that they had reached in-principle agreement and sought for the matter to be re-allocated under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act)
The matter was re-allocated to me, and the Court arranged a conciliation conference between the parties under s 34(1) of the LEC Act on 24 September 2025. I presided over the conciliation conference.
A signed agreement was submitted to the Court on 24 September 2025, in accordance with s 34(10) of the LEC Act. The agreement records the approval of the Council, as the relevant consent authority, to the amending of the application in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), and the filing of the amended application with the Court, in accordance with s 8.15(3) of the EPA Act, which were effected prior at the conciliation conference.
The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.
The parties have identified the jurisdictional pre-conditions that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act to dispose of these proceedings and grant the orders sought. In that regard, I note the jurisdictional preconditions that follow.
The site is located within an area identified as a R4 High Density Residential zone, according to the Blacktown Local Environmental Plan 2015 (BLEP), in which centre based childcare facilities are permitted with consent, where consistent with the objectives of development in the R4 zone, that are:
• To provide for the housing needs of the community within a high density residential environment.
• To provide a variety of housing types within a high density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.
• To permit residential flat buildings in locations close to public transport hubs and centres.
The proposal complies with the height of building standard of 20m at cl 4.3 of the BLEP. Relevantly, there is no floor space ratio standard applicable to the site under cl 4.4.
As the site is currently serviced by those services listed at cl 7.5 of the BLEP, and the agreed conditions of consent provide for connection of the same, I am satisfied that the services essential for the development are available.
The relevant experts agree that the proposal exhibits design excellence in accordance with cl 7.7 of the BLEP for reasons that are set out in the joint expert report of the planning and urban design experts. On the basis of the following, I also accept and am satisfied that the proposed development will exhibit design excellence:
It will achieve a high standard of architectural design, materials and detailing appropriate to the building type and location when the materials and finishes depicted in the architectural plans are understood (cl 7.7(4)(a)).
I also accept, on the basis of the landscape plans prepared by Canvas Landscape Architects that the form and external appearance of the development will improve the quality and amenity of the public domain when the degree of planting and landscape finishes in the front setback are understood. (cl 7.7(4)(b) and (f)(x))
I do not understand there to be any view corridors that are detrimentally impacted by the proposal, neither do I understand there to be any land protected by solar access controls within the Blacktown Development Control Plan 2015 (BDCP) (cl 7.7(4)(c) and (d)).
I have considered the requirements of the BDCP in terms of groundwater assessment. On the basis of the agreed position of the geotechnical experts in respect of the results of groundwater assessment, I find the requirements to be met (cl 7.7(4)(e)).
I also find the development satisfactorily addresses those matters at subcl (4)(f) of the BLEP for the reasons that follow:
(a) Firstly, the land is identified on the land use table for development for the purposes of a centre based child care facility, and the site is located within a zone designated R4 High Density Residential. As such, I consider the land suitable for development (subcl (f)(i)) and the proposed use acceptable in the area (subcl (f)(ii)). (b) Secondly, I agree with the experts that there are no specific heritage issues or streetscape constraints that are relevant in the circumstances of this case beyond those at [(2)] (subcl (f)(iii)), such as street frontage heights (subcl (f)(vi)), and as I have found the acoustic performance likely to be acceptable, I also consider the relationship of the proposal to surrounding development in terms of setback, separation and amenity to also be acceptable (subcl (f)(iv)) and the bulk, massing and modulation of the proposal to be compatible with adjoining development (subcl (f)(v)) (c) Thirdly, the environmental impacts such as overshadowing, wind and reflectivity are agreed by the experts to be acceptable (cl 7.7(4)(f)(vii)) and are not contested. Relatedly the proposal includes photovoltaic panels on the roof and the integration of landscape planting in the design of the building consistent with the principles of ecologically sustainable development (cl 7.7(4)(viii)). (d) Fourthly and finally, the separation of the pedestrian and vehicular access, and the legible delineation of both in the basement sufficiently addresses those matters at cl 7.7(4)(f)(ix).
I accept the architectural plans demonstrate compliance with regs 107 and 108 of the Education and Care Services National Regulations and so concurrence of the Regulatory Authority for the purpose of s 3.22 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Childcare SEPP) is not required.
The Child Care Planning Guidelines published by the Department of Planning, Industry and Environment, dated September 2021 (the Guidelines) are a matter for the consent authority, or the Court, to consider to the extent relevant according to s 3.23 of Childcare SEPP.
On the basis of the agreement between the relevant experts summarised below I accept the proposed development is consistent with the Guidelines as are relevant to the proposal that must be considered in accordance with 3.23 of the Childcare SEPP.
Experts in air quality agree that the Air Quality Impact Assessment prepared by Benbow Environmental demonstrates that air quality standards in accordance with relevant legislation and guidelines are achieved, consistent with Consideration 27 of the Guidelines.
The parties agree that the design guidance in support of Consideration 4.11 encourages a correct balance of sunlight and shade to play areas, that is demonstrated by the area of sunlight depicted in the architectural plans between 8am-4pm at mid winter, subject to the final detail of privacy screens.
Having considered the amended Environmental Noise Impact Assessment (Acoustic Assessment) dated 13 May 2025, prepared by Mr Stephen Gauld, I accept that the adoption of all of the recommendations included in the Acoustic Assessment set out in Section 8, ‘Noise Control Recommendation’, appropriately respond to the acoustic and privacy considerations at Section 3.5 of the Guidelines. The relevant experts agree that the proposal will not generate adverse visual privacy impacts to adjoining properties by reason of the acoustic barriers and privacy screens shown on architectural plan DA8013.
The site is located within the catchment of the Hawkesbury-Nepean river system. As such, Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies controls, relevantly, as to water quality and quantity, aquatic ecology, flooding, and total catchment management.
On the basis of the amended stormwater plans prepared by Capital Engineering Consultants appended to the joint expert report on engineering, filed 12 June 2025, the experts agree that the post development discharge of stormwater to Fourth Avenue is less than pre-development discharge.
The experts also agree that optimum water conservation is achieved by use of a 40,000L subsurface rainwater tank proposed in the western setback and that when the small area of roof, and high demand for water use in the proposal is considered, a degree of water conservation is achieved that is consistent with the requirements of Section 11.14.5 of the Blacktown Water Sensitive Urban Design Guidelines 2020.
Finally, the experts also agree that the area draining to Third Avenue is reduced to an acceptable level such that no adverse impact results.
Furthermore, the engineering experts agree that the amended Stormwater Plans appended to the joint report and the Amended Water Quality and Quantity Assessment Report prepared by CEC dated 6 June 2025 demonstrate compliance with those matters at s 6.6(1)(a)-(d) of the Biodiversity SEPP. To this end, the Amended Stormwater Plans depict an onsite detention (OSD) tank fitted with water quality devices and the experts agree that DRAINS modelling demonstrates that stormwater runoff will be limited to pre-development conditions in the post development scenario, and will be of higher water quality than pre-development quality. As such, I am satisfied that the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial impact, in accordance with s 6.6(2)(a), and that water flow in or to a natural waterbody will be minimised, pursuant to s 6.6(2)(b) of the Biodiversity SEPP.
For similar reasons I have also considered those matters at s 6.7(1) of the Biodiversity SEPP and am satisfied there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation, and result in no adverse impact on aquatic reserves, or in terms of erosion.
I note that the site is not identified as flood liable land to which s 6.8 of the Biodiversity SEPP is directed and so does not apply.
Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.
I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP).
A Preliminary Site Investigation undertaken by CEC Geotechnical dated 11 December 2023 (Exhibit N) concluded the site is suitable for the proposed development. Nonetheless, a Detailed Site Investigation by the same authors, dated 2 February 2024 (DSI), and also contained within Exhibit N, was also undertaken. On the basis of twelve soil samples taken from eight locations on the site, levels of certain contaminants were found, but determined to be within the adopted human health criteria.
The DSI concludes the site is suitable for the development proposed, subject to recommendations that are incorporated in agreed conditions of consent.
On the basis of the investigations undertaken and conclusions contained in the DSI, and the agreed conditions of consent, I am satisfied the site can be made suitable, following remediation, for the purpose for which development is proposed to be carried out.
State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) provides standards for non-residential development at Chapter 3 with an estimated development cost of $5m or more (s 3.1(1)(a)).
In my view, the arrangements for onsite retention and reuse of water at [25], use of photovoltaic panels for generation of renewable energy and the Amended Waste Management Plan prepared by Dickens Solutions dated March 2025, demonstrate that the development is designed to enable those matters at s 3.2(1) of the Sustainable Buildings SEPP:
A NABERS Embodied Emissions Report prepared by Certified Energy dated 2 February 2024 supports the development application, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 3.2(2) of the Sustainable Buildings SEPP.
The proposed development is ‘integrated development’ as defined at s 4.46 of the EPA Act. As such, the proposal was referred to Water NSW and a response was received on 13 June 2024, seeking additional information in respect of the proposed drained basement.
Groundwater monitoring for a period of 3 months is set out in the letter prepared by PSM dated 23 September 2025, stating that the construction phase will likely encounter a quantum of groundwater within the range generally regarded as minimal impact. That said, the ongoing groundwater disposal will require approvals under ss 89, 90 and 91 of the Water Management Act 2000 (NSW).
Public submissions received by the Council in response to notification of the original DA and the Amended DA are contained in the Council’s bundle of documents.
In addition to these written submissions, the Court heard an oral submission from a resident of the adjoining property to the east noting concerns as to on-street car parking, noise disturbance, waste collection and potential impacts arising from excavation.
As those matters have ben considered by the parties, I consider the submissions adequately addressed in the terms of the development as amended.
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.
Blacktown City Council, as the relevant consent authority, has approved under s 38(1) of the EPA Regulation, the amending of Development Application No. DA-24-00129 in accordance with the following amended plans and other documents (the Amended DA):
| Document | Ref No. | Prepared by | Rev | Date |
| Stormwater Management Plan | | Cover Sheet | SW001 | Capital Engineering Consultants (CEC) | H | 06 Jun 2025 | | Notes & Details | SW002 | CEC | H | 06 Jun 2025 | | Basement 03 Floor Plan, Notes & Details | SW010 | CEC | H | 06 Jun 2025 | | Basement 02 & 01 Floor Plan, Notes & Details | SW011 | CEC | H | 06 Jun 2025 | | Ground Floor, Plan, Notes & Details | SW020 | CEC | H | 06 Jun 2025 | | On-Site Detention Plan, Notes & Details 1/2 | SW021 | CEC | H | 06 Jun 2025 | | On-Site Detention Plan, Notes & Details 2/2 | SW022 | CEC | H | 06 Jun 2025 | | Catchment Plan | SW023 | CEC | H | 06 Jun 2025 | | Stormwater Layout Plan S3QM | SW024 | CEC | H | 06 Jun 2025 | | Erosion and Sediment Control Plan, Notes & Details | ER001 | CEC | H | 06 Jun 2025 | | Water Quality and Quantity Assessment Report | SW23321 | CEC | B | 06 Jun 2025 | | Geotechnical Factual Investigation Report | PSM5810-005R | PSM | - | 16 Jul 2025 | | Groundwater Assessment Report | PSM5810-007R | PSM | - | 16 Jul 2025 | | Concept Shoring Plans | | Shoring Plan | S1 | CEC | A | 24 Jun 2025 | | Shoring Details | S2 | CEC | A | 24 Jun 2025 | | A****ddendum Groundwater and High-Level Impact Assessment | PSM5810-008L | PSM | - | 17 Sep 2025 | | Letter addressing Groundwater Monitoring Results | PSM5810-009R | PSM | - | 23 Sep 2025 |
The Court orders that:
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application as agreed or assessed.
The appeal is upheld.
Development consent is granted to Development application DA-24-00129, as amended, for the demolition of existing structures and construction of a five storey, one hundred and fifty-six (156) place child care facility with basement car parking for forty eight (48) vehicles at 6 Fourth Avenue, Blacktown NSW 2148 legally identified as Lot 144 in Deposited Plan 12410, subject to conditions in Annexure A.
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Australian Investments Blacktown Pty Ltd
Blacktown City Council [2025] NSWLEC 1727