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[2025] NSWLEC 1910
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-23
Espinosa 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: Boctor v Georges River Council [2025] NSWLEC 1910
Hearing dates: Conciliation conference held on 16 September, 7 and 22 October and 5 November 2025
Date of orders: 23 December 2025
Decision date: 23 December 2025
Jurisdiction: Class 1
Before: Espinosa C
Decision: The Court orders:
(1) 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 (NSW) in the agreed sum of $12,000, payable within 28 days of these orders.
(2) The appeal is upheld.
(3) Development Application No. DA2024/0618, as amended, for lot consolidation, tree removal, demolition of the existing structures and construction of a 2 storey centre-based child care facility accommodating 72 children with associated basement parking and landscaping on land legally described as Lots 5 & 6 in DP35165 and known as 19-21 Argyle Street, Penshurst NSW 2222, and Lot 35 Section 5 in DP3446 and known as 21R Argyle Street, Penshurst NSW 2222, is determined by the grant of development consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL — centre based child care facility — drainage upgrade works on adjacent drainage reserve — deferred commencement conditions — conciliation conference — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Local Government Act 1993 (NSW)
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Education and Care Service National Regulations 2011
Georges River Local Environmental Plan 2021, cll 2.7, 4.3, 4.4, 5.21, 5.22, 6.1, 6.2, 6.3, 6.9, 6.12
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 2.48, 3.23, 3.26
Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guidelines (September 2021)
Georges River Development Control Plan 2021
Category: Principal judgment
Parties: Andrew Boctor (First Applicant)
Sam Hanna (Second Applicant)
Georges River Council (Respondent)
Representation: Counsel:
E Flemming (Solicitor)(Applicant)
A Foley (Solicitor)(Respondent)
Solicitors:
Macpherson Kelley (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2025/134281
Publication restriction: Nil
COMMISSIONER: This is a Class 1 Development 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 DA2024/0618 seeking consent for the lot consolidation, tree removal, demolition of the existing structures and construction of a 2 storey centre-based child care facility accommodating 72 children with associated basement parking and landscaping (Proposed Development) at 19-21 Argyle Street, Penshurst, NSW, 2222 legally described as Lot 5 and Lot 6 in Deposited Plan 35165 (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 16 September, 7 and 22 October and 5 November 2025. I presided over the conciliation conference.
In response to the public notification of the DA, 79 submissions were received by the Council. The matters raised in the submissions relate to:
Site suitability noting the Site is located in a low density residential zone rather than commercial and not in close proximity to train stations.
Acoustic impacts resultant from numbers of children and associated traffic.
Traffic congestion and impacts to on-street parking caused by the development, including pick-up and delivery requirements.
Limiting access to footpath in Argyle Street.
Increase in noise and pollution during construction.
Safety concerns for residents.
Social impact noting that there are at least 9 child care centres in Penshurst.
Four (4) objectors made submissions at the Site visit component of the conciliation conference on 16 September 2025.
The Respondent has approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant amending the DA in accordance with the amended plans and documents as set out at [41] (Amended DA).
The Court can be satisfied that the issues raised by the objectors, where appropriate, have been particularised in the Statement of Facts and Contentions filed by the Respondent and have been adequately addressed in the Amended DA and Agreed Conditions. The Amended DA was not renotified consistent with par (b) on p 44 of the Respondent’s Community Engagement Strategy.
The Proposed Development includes a proposal to carry out drainage works on adjacent land at Lot 35 Section 5 in Deposited Plan 3446 (Lot 35), also known as 21R Argyle Street, Penshurst, which is owned by the Council. Lot 35 is identified as a drainage reserve on the Deposited Plan and is classified as Operational Land under the Local Government Act 1993 (NSW). An existing pipe is located within Lot 35. An assessment of the condition of the existing pipe within Lot 35 has been performed. Arising from that assessment, the Respondent has determined that the Applicant must undertake pipe upgrade works entailing either:
Replacement of a portion of the existing pipe (being a portion of the pipe located downstream of the proposed pit connection) (Option A); or
relining the existing pipe between Argyle Street and Stephen Street (Option B)
The Pipe Upgrade Works are detailed in the Stormwater Management Plans, Drawing No. SW07. The Respondent is satisfied that either Option A or Option B can be carried out as part of the Proposed Development. Condition 47 of the Agreed Conditions require the Pipe Upgrade Works to be completed as part of the Proposed Development, prior to works otherwise commencing. This condition is imposed pursuant to s 4.17(1)(f) of the EPA Act.
In addition to the Pipe Upgrade Works, a 1.5 metre drainage easement will be created over 21R Argyle Street (Drainage Easement) to benefit the Site. The easement width and location are noted on Stormwater Management Plans, Drawing No. SW04 and SW07. Condition 17 of the Agreed Conditions requires the Drainage Easement to be created prior to the issue of a construction certificate. The Respondent has provided a letter confirming it would be willing to provide an easement over 21R Argyle Street subject to specified conditions.
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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
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. 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 parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
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 to be various provisions in the Georges River Local Environmental Plan 2021 (GRLEP) and in a number of environmental planning instruments detailed below. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.
The Applicants are the owners of the Site, specifically by Andrew Boctor (Lot 5) and Sam Micheal Hanna (Lot 6).
The Site is zoned R2 Low Density Residential under the GRLEP. “Centre-based child care facilities” are nominated as development which is permissible with consent in the R2 Zone.
Demolition and earthwork are permissible with consent under cll 2.7 and 6.2 respectively of the GRLEP.
The Site is the subject of a maximum height of building (HOB) development standard of 9 metres pursuant to cl 4.3(2) of the GRLEP. The Proposed Development has a compliant maximum HOB of 8.8 metres as set out in Drawing No. DA1.06 of the Architectural Plans.
The Site is the subject of a maximum floor space ratio (FSR) development standard of 0.55:1 pursuant to cl 4.4(2) of the GRLEP. The Proposed Development has a compliant FSR of 0.363:1 as set out in Drawing No. DA1.02A of the Architectural Plans.
The flood planning provisions of cll 5.21 and 5.22 of the GRLEP do not apply because the Site is not identified in the Overland Flow Floodplain Risk Management Study and Plan for Hurstville, Mortdale, and Peakhurst Wards, prepared by WMA Water dated 2023 to be affected by 1% AEP and probable maximum flood (PMF) as per the Former Hurstville flow flood study 2023 prepared by WMA water.
For clarity, an assessment of the 1% AEP and PMF has been prepared only in relation to potential flooding of the proposed basement and only in respect of the Respondent’s stormwater pipe which traverses the adjoining parcel of land to the Site, as required in the Respondent’s Stormwater Management Policy.
The Site is not mapped on Council’s Acid Sulphate Soils Map. Therefore, the provisions of cl 6.1 of the GRLEP relating to managing Acid sulphate soils does not apply.
In relation to stormwater management, cl 6.3(2) of the GRLEP requires that, in deciding whether to grant development consent for development, the consent authority must be satisfied that the development achieves all of the provisions set out in subcl (a) to (d) which are addressed and explained by the parties as follows.
Firstly, the Court must be satisfied that the Proposed Development is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water: cl 6.3(2)(a), GRLEP. The parties explain that the Proposed Development maximises the pervious areas of the Site at the outdoor play areas as shown in Drawing No. SW06 of the Stormwater Management Plans. The storage volume and orifice sizing of the on-site detention (OSD) has been calculated to ensure compliance with the Respondent’s permeability factors.
Secondly, the Court must be satisfied that the Proposed Development includes, if required by the Georges River Stormwater Management Policy, on-site stormwater detention or retention to minimise stormwater runoff volumes and reduce the development’s reliance on mains water, groundwater or river water: cl 6.3(2)(b), GRLEP. The parties explain that the stormwater drainage design for the proposed development adopts an OSD which has been designed in accordance with the Respondent’s Stormwater Management Policy. The Proposed Development also includes a 2000L rainwater tank for stormwater conservation as shown in Drawing No. SW04 of the Stormwater Management Plans.
Thirdly, the Court must be satisfied that the Proposed Development avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland, receiving waters and the downstream stormwater system or, if the impact cannot be reasonably avoided, minimises and mitigates the impact: cl 6.3(2)(c), GRLEP. The parties explain that the stormwater design does not have any adverse impacts of stormwater runoff on adjoining properties. The proposed development includes an OSD so that stormwater management can occur on the Site, and the OSD is connected directly to the Respondent’s drainage system. The Site is not located within the vicinity of native bushland nor receiving bushlands.
Fourthly, and lastly, the Court must be satisfied that the Proposed Development is designed to minimise the impact on public drainage systems: cl 6.3(2)(d), GRLEP. The parties explain that the Proposed Development includes an OSD so that stormwater management can occur on the Site before gradually releasing into the local drainage system at a controlled rate to reduce the impact on the Respondent’s drainage system. The OSD outlet to the Respondent’s drainage system is connected with an adequate grade, which has been confirmed by the survey obtained of the Respondent’s existing drainage pipe.
The Court is satisfied that the services listed in cl 6.9 of the GRLEP that are essential for the development are available or that adequate arrangements have been made to make them available when required for the following reasons:
the Site is adjoined by existing residential dwellings in an established residential area which are currently serviced by all essential services, including water, electricity, telecommunications, sewage.
There is adequate stormwater drainage for the Proposed Development.
The vehicular access to the proposed development is by way of a driveway ramp to a basement car park. The Traffic & Parking Assessment Report filed with the Class 1 Application at Tab 9, and the swept paths, confirm that the driveway is acceptable from a traffic perspective.
The Agreed Conditions require the relevant certificates to be obtained.
There are landscaping provisions in cl 6.12 of the GRLEP that require satisfaction because the Proposed Development involves the erection of a new building resulting in an increased building footprint on land in the R2 Zone: cl 6.12(2)(a), GRLEP. Clause 6.12(4) provides that consent must not be granted unless the consent authority is satisfied that the development:
(a) allows for the establishment of appropriate plantings—
(i) that are of a scale and density commensurate with the height, bulk and scale of the buildings to which the development relates, and
(ii) that will maintain and enhance the streetscape and the desired future character of the locality, and
In response, the parties explain that the Proposed Development proposes landscaping embellishment to the Site and includes a variety of plantings and canopy trees. The existing trees in the front setback of the Site are maintained, whilst additional landscaping is proposed to further embellish and enhance the streetscape.
The second element of cl 6.12 of the GRLEP provides that consent must not be granted unless the consent authority is satisfied that the development:
(b) maintains privacy between dwellings, and
In response, the parties explain that the Proposed Development includes a landscaping strip along the boundaries to adjoining neighbours to provide a privacy buffer.
The third element of cl 6.12 of the GRLEP provides that consent must not be granted unless the consent authority is satisfied that the development:
(c) does not adversely impact the health, condition or structure of existing trees, tree canopies or tree root systems that are to be retained as part of the development on the land or adjacent land, and
In response the parties explain that the Proposed Development retains a number of existing trees at the Site. The Arboricultural Impact Assessment and Tree Management Plan confirms that such trees can be appropriately maintained and includes tree protection measures, which have been included in the Agreed Conditions.
The fourth element of cl 6.12 of the GRLEP provides that consent must not be granted unless the consent authority is satisfied that the development:
(d) enables the establishment of indigenous vegetation and habitat for native fauna, and
In response the parties explain that the Proposed Development is designed to provide a significant area of deep soil in the outdoor play area. There is significant opportunity for vegetation which is appropriate for the child care centre development to be planted.
The fifth element of cl 6.12 of the GRLEP provides that consent must not be granted unless the consent authority is satisfied that the development:
(e) integrates with the existing vegetation to protect existing trees and natural landscape features such as rock outcrops, remnant bushland, habitats and natural watercourses.
In response the parties explain that the Proposed Development has retained the existing vegetation on the Site, where feasible.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The Court is satisfied that the Site is considered suitable for its proposed use because the Site has a historical residential use and is located within a well-established residential locality. There is no suggestion that the Site would have been contaminated, nor are there any immediate site conditions which would require remediation of the Site. If in the unlikely event contamination is found during construction, the Agreed Conditions provide measures to safely manage the contamination in accordance with the relevant legislative requirements and guidelines.
The Proposed Development is not for integrated development. The Proposed Development was referred to Ausgrid pursuant to s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) as the development is to be carried out within 5 metres of an exposed overhead electricity power line. Ausgrid raised no objections to the DA, subject to advisory comments and conditions.
Chapter 3 of the Transport and Infrastructure SEPP provides a consistent planning regime for the effective delivery of education establishments and early education and care facilities across the State. As required by s 3.23 of the Transport and Infrastructure SEPP, the parties have taken into consideration the applicable provisions of the Child Care Planning Guidelines (CCPG), which is addressed in the Statement of Environment Effects at pp 32 - 56 filed with the Class 1 Application.
Section 3.26 of the Transport and Infrastructure SEPP sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority from requiring more onerous standards for those matters.
Section 3.26(2) sets out non-discretionary development standards for the purpose of ss 4.15(2) and 4.15(3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, section 3.26(2)(b) of the Transport and Infrastructure SEPP provides the requirements for indoor or outdoor space. The Amended DA provides at least 3.25 square metres of unencumbered indoor play space and at least 7 square metres of unencumbered outdoor play space per child, which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations 2011 (National Regulations).
The National Regulations provides extensive controls and requirements in addition to that of the Transport and Infrastructure SEPP, the GRLEP and the Georges River Development Control Plan 2021 (GRDCP) and includes:
licensing and approvals processes, including documentation requirements;
facilities and equipment requirements;
staffing requirements;
child number requirements;
operational requirements;
administrative requirements;
probity check requirements; and
various miscellaneous requirements.
Compliance with the National Regulations is assessed as part of the assessment against the CCPG in the Statement of Environmental Effects at pp 57 - 59.
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. I adopt the reasons given by the parties as set out above.
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.
| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No: DA0.01 Revision B | Site Analysis Plan | Building Design and Technology Pty Ltd | 9 October 2025 | | Drawing No: DA0.02 Revision A | Streetscape Analysis | 18 October 2024 | | Drawing No: DA 1.01 Revision E | Basement Plan | 29 September 2025 | | Drawing No: DA 1.02 Revision H | Ground Floor Plan | 9 October 2025 | | Drawing No: DA 1.02A Revision B | Floor Area Calc Plan | 2 September 2025 | | Drawing No: DA 1.02B Revision E | Ground Floor Fence Plan | 9 October 2025 | | Drawing No: DA 1.02C Revision A | Ground Floor Fence Elevations | 9 October 2025 | | Drawing No: DA 1.03 Revision E | First Floor Plan | 29 September 2025 | | Drawing No: DA 1.04 Revision F | Roof Plan | 29 September 2025 | | Drawing No: DA 1.05 Revision H | Elevations 1 | 9 October 2025 | | Drawing No: DA 1.06 Revision H | Elevations & Sections | 9 October 2025 | | Drawing No: DA 1.07 Revision D | 9AM Exist & Proposed Winter Shadow Plan | 29 September 2025 | | Drawing No: DA 1.08 Revision D | Noon Exist & Proposed Winter Shadow Plan | 29 September 2025 | | Drawing No: DA 1.09 Revision C | 3PM Exist & Proposed Winter Shadow Plan | 29 September 2025 | | Drawing No: DA 1.10 Revision B | Site Management Plan | 9 October 2025 | | External Montage | | undated | | Landscape Plans | | 2 | Drawing No C0 Rev I | Cover Sheet | Contour Landscape Architecture | 10 October 2025 | | Drawing No C1 Rev I | Landscape Plan | 10 October 2025 | | Drawing No C2 Rev I | Playground Inclusions | 10 October 2025 | | Drawing No C3 Rev I | Shade Cover Plan | 10 October 2025 | | Drawing No C4 Rev I | Planting Plan - First Floor | 10 October 2025 | | Drawing No C5 Rev I | Plant Schedule & Landscape Details | 10 October 2025 | | Drawing No C6 Rev I | Irrigation Plan | 10 October 2025 | | Drawing No C7 Rev I | Maintenance Plan | 10 October 2025 | | Survey Plans | | 3 | Drawing No: P20145 & P20441 Revision B Sheet 1 of 1 | Lots 5 & 6 DP 35165 - 19&21 Argyle Street, Penshurst NSW | Metropolis City Surveyors Pty Ltd | 1 July 2025 | | Stormwater Management Plans | | 4 | Drawing No. SW01 Revision 4 | Cover Sheet | Cane Consulting | 26 November 2025 | | Drawing No. SW02 Revision 3 | Sediment and Erosion Control Plan | 3 October 2025 | | Drawing No. SW03 Revision 3 | Sediment and Erosion Control Details | 3 October 2025 | | Drawing No. SW04 Revision 4 | Stormwater Management Plan Sheet 1 | 3 November 2025 | | Drawing No. SW05 Revision 3 | Stormwater Management Plan Sheet 2 | 3 October 2025 | | Drawing No. SW06 Revision 3 | Stormwater Management Details | 3 October 2025 | | Drawing No. SW07 Revision 1 | External Works | 26 November 2025 | | Civil Driveway Plan | | 5 | Drawing No: CV01 Revision 3 | Driveway Plan and Longsection | Cane Consulting | 17 September 2025 | | Documents | | 6 | Stormwater Management Letter (Rev 2) | Cane Consulting | 1 October 2025 | | 7 | Survey of Drainage Levels - Drawing No: 14792ts Sheet 1 of 1 | Asher Silcock Consulting Pty Ltd | 5 August 2025 | | 8 | OSD Operations and Maintenance Manual | Cane Consulting | Undated | | 9 | Service Protection Report | Brian O’Mara & Partners | 4 July 2025 | | 10 | Acoustic Impact Assessment | Acoustic Dynamics | 8 October 2025 | | 11 | Revised Response to Traffic and Parking Contentions | CJP Consulting Engineers | 2 October 2025 | | 12 | Private Waste Service Letter and Waste Free Brochure | Waste Free | | | 13 | Arboricultural Impact Assessment and Tree Management Plan (Version 3) | Horticultural Management Services | 3 October 2025 | | 14 | Operational Waste Management Plan (Revision D) | Elephants Foot Consulting | 3 September 2025 | | 15 | Plan of Management (Revision 4) | | 9 October 2025 | | 16 | Landowner’s consent to grant an easement | Georges River Council | 5 December 2025 |
The Court orders:
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 (NSW) in the agreed sum of $12,000, payable within 28 days of these orders.
The appeal is upheld.
Development Application No. DA2024/0618, as amended, for lot consolidation, tree removal, demolition of the existing structures and construction of a 2 storey centre-based child care facility accommodating 72 children with associated basement parking and landscaping on land legally described as Lots 5 & 6 in DP35165 and known as 19-21 Argyle Street, Penshurst NSW 2222, and Lot 35 Section 5 in DP3446 and known as 21R Argyle Street, Penshurst NSW 2222, is determined by the grant of development consent subject to the conditions at Annexure A.
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Annexure A (385 KB, pdf)
Boctor
Georges River Council [2025] NSWLEC 1910