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[2025] NSWLEC 1849
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-03
Dickson 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: Childcare Developments Group Pty Ltd v Camden Council [2025] NSWLEC 1849
Hearing dates: 24 and 25 November 2025
Date of orders: 03 December 2025
Decision date: 03 December 2025
Jurisdiction: Class 1
Before: Dickson C
Decision: The Court orders that:
(1) By consent, the Applicant is granted leave to amend their development application DA2024/528/1 pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) in accordance with the amended plans and documents in Exhibit 1.
(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondents costs thrown away as a result of the amendments to the Development Application as agreed or assessed.
(3) The appeal is upheld.
(4) Development Application DA 2024/528/1, as amended, for the demolition of existing structure and construction of a 70 place child care centre including stormwater drainage construction, basement car parking, landscaping and associated site works at 9 Plane Tree Drive, Narellan Vale (Lot 13 DP 801976) is determined by the grant of consent subject to the conditions in Annexure A.
(5) The exhibits are returned with the exception of Exhibits 1, 10, A and B.
Catchwords: DEVELOPMENT APPLICATION – centre based childcare centre – amended plans and documents – some contentions resolved through amendments and expert evidence – community concerns and objection – whether the design of the centre provides adequate surveillance of children and educators – whether the construction traffic impacts are acceptable – consideration of the public interest – appeal upheld
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.13, 4.15, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Camden Local Environmental Plan 2010, cll 2.3, 2.7, 4.3, 6.2
Education and Care Services National Regulations 2011 (NSW)
Environmental Planning and Assessment Regulation 2021 (NSW), s 23
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.1, 6.6, 6.7, 6.8, 6.9, 6.10, Ch 6, Div 2
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.25, 3.26, 3.27, Ch 3
Cases Cited: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399
Entrepreneur Enterprises Pty Ltd v Lane Cove Municipal Council [2023] NSWLEC 1323
Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373
Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143
Texts Cited: Camden Development Control Plan 2019
Child care planning guideline 2021
Guideline for Child Care Centres Acoustic Assessment 2020
Noise Guide for Local Government 2023
Category: Principal judgment
Parties: Childcare Developments Group Pty Ltd (Applicant)
Camden Council (Respondent)
Representation: Counsel:
J Smith (Applicant)
R O’Gorman-Hughes (Respondent)
Solicitors:
Centurion Lawyers (Applicant)
Holding Redlich (Respondent)
File Number(s): 2025/36708
Publication restriction: Nil
COMMISSIONER: These proceedings are an appeal brought by Childcare Developments Group Pty Ltd (the Applicant) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the actual refusal of their development application, DA 2024/528/1. The development application, as amended, seeks consent for the demolition of existing structure and construction of a 70 place child care centre including stormwater drainage construction, basement car parking, landscaping, and associated site works. The development is proposed at 9 Plane Tree Drive, Narellan Vale (Lot 13 DP 801976).
The appeal was subject to conciliation on 23 June 2025, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). As agreement was not reached the conciliation was terminated and the matter listed for hearing.
In response to joint conferencing of experts, on 7 November 2025 the Court granted leave to the Applicant to amend the development application to rely on amended plans. Broadly the amendments to the application were:
A reduction in the childcare places from 80 to 70,
The removal of the first floor outdoor play space,
A reduction in the extent of the upper level from 22.61m to 13.16m,
Inclusion of a fencing plan to clarify fencing heights and retaining walls,
Internalisation of the stairs,
Increase in the front building setback.
By consent the Court also granted the Applicant leave to further amend their development application at the commencement of the hearing. The amendments included the provision of amended architectural plans, a Construction Traffic Management Plan (CTMP), and updated Plan of Management (POM), civil engineering plans, landscape plans and stormwater engineering plans. The further amended development application was subject to further joint expert conferencing and is the subject of this judgment.
As a result of the amendments and joint conferencing of experts a range of the Respondent’s contentions in the proceeding have been resolved. The Respondent confirmed that the following contentions are resolved:
Contravention of floor space ratio development standard,
Bulk, scale and character,
Adverse external privacy and amenity impacts,
Traffic and parking impacts and pedestrian circulation,
Insufficient front setback,
Height of building,
Stormwater, and
Insufficient Information.
The Respondent argues that the following issues warrant the refusal of the amended development application:
That the amended development application provides inadequate surveillance of children and educators arising from the configuration of the play rooms,
The detrimental amenity impacts to neighbouring properties arising from the construction of the centre based childcare centre on the site, and
The public interest represented by the objections received from members of the public about the development application.
The site is legally described as Lot 13 in DP 801976, also known as 9 Plane Tree Drive, Narellan Vale (Site). The site currently contains a single storey dwelling house, an inground swimming pool and vegetation.
The lots immediately surrounding the site contain single storey and two storey dwellings. The Site is also within proximity of Mount Annan Marketplace, Mount Annan Central Shopping Centre, a local park known as Thornleigh Reserve and multiple childcare centres.
The following experts gave evidence in the proceedings:
Town Planning: Jonathan Wood (for the Applicant) and Brian McDonald (for the Respondent)
Traffic: Ramy Selim (for the Applicant) and Reyad Toufaili (for the Respondent)
Stormwater: Jo Bacha (for the Applicant) and Christian Cattarin (for the Respondent)
Each of the preceding pairs of experts prepared joint reports which were admitted into evidence. The experts were not required for oral evidence and cross examination.
Section 4.15(1) of the EPA Act requires that, in considering a development application, the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
Before addressing the merit issues raised by the Respondent as to whether development consent ought to be granted to the proposed development, it is necessary to demonstrate that the other jurisdictional preconditions to the Court having power to grant consent to the proposed development have been met.
For the purposes of s 4.13 of the EPA Act, the development application was publicly notified for a period of 14 days in accordance with Council’s Community Participation Plan from 8 November 2024 to 21 November 2024. Council received 93 submissions and a petition from the public during the public notification period.
Following the grant of leave of the Court on 7 November 2025, the plans the subject of the Applicant’s Notice of Motion were also provided by Council directly to the resident objectors.
In undertaking the evaluation under s 4.15 of the EPA Act, I am satisfied that the concerns raised by the objectors do not warrant the refusal of the application.
Chapter 3 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies as the development seeks consent for centre-based childcare. Pursuant to s 3.23 of SEPP TI, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines issued by the NSW Department of Planning, Industry and Environment in 2021 (Childcare Guidelines) before determining the application.
Section 3.26 of the SEPP TI specifies non-discretionary development standards that, if met, preclude more onerous standards from being used to refuse the development. It sets out:
3.26 Centre-based child care facility—non-discretionary development standards
(1) The object of this section is to identify development standards for particular matters relating to a centre-based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters.
(2) The following are non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of a centre-based child care facility—
(a) location—the development may be located at any distance from an existing or proposed early education and care facility,
(b) indoor or outdoor space
(i) for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies—the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or
(ii) for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies—the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause,
(c) site area and site dimensions—the development may be located on a site of any size and have any length of street frontage or any allotment depth,
(d) colour of building materials or shade structures—the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area.
(3) To remove doubt, this section does not prevent a consent authority from—
(a) refusing a development application in relation to a matter not specified in subsection (2), or
(b) granting development consent even though any standard specified in subsection (2) is not complied with.
The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by ss 3.22 and 3.26 of SEPP TI as shown on the architectural plans. The parties agree that the proposed development meets the requirements for the unencumbered area of indoor space and the unencumbered area of outdoor space in the Education and Care Services National Regulations 2011 (National Regulations), which are 3.25m2 of indoor space per child and 7m2 of outdoor space per child. This means that the concurrence of the regulatory authority is not required, as s 3.22 of the SEPP TI requires concurrence only if those area requirements are not met.
An assessment of the amended development application against the Childcare Guidelines was in part the subject of the joint planning expert report. Further, the Statement of Environmental Effects (SEE) lodged with the development application assesses the compliance of the development against the Childcare Guidelines. Having considered the SEE, the Childcare Guidelines, the amended plans and the plan of management for the operation of the centre, I find the development meets the Childcare Guidelines as required by s 3.23 of SEPP TI.
The proposed development complies with the indoor and outdoor space requirements of the of the Education and Care Services National Regulations 2011 (NSW), providing at least 3.25 square metres of unencumbered indoor play space and at least 7 square metres of unencumbered outdoor play; and comprising a total of 245 sqm across all indoor areas of unencumbered space and a total of 508 sqm unencumbered outdoor space. The non-discretionary standards at s 3.26 of SEPP TI are met.
For the purposes of s 3.25 of SEPP TI the site is within a R2 Low Density Residential Zone. Accordingly, a floor space ratio (FSR) of 0.5:1 applies. The proposed development complies with an FSR of 0.41:1.
Pursuant to s 6.1 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Ch 6 ‘Water Catchments’ applies as the site is located within the Hawkesbury-Nepean Catchment. Division 2 of Ch 6 includes controls on development which a consent authority in determining the development application must consider.
By reference to the materials in the amended development application, in particular the amended stormwater plans, and the agreed evidence of the stormwater experts in the proceedings, I accept that the development will:
have a neutral effect on the quality of water entering any nearby waterway and will not have an adverse impact on waterflow of any nearby natural waterbody pursuant to s 6.6 of SEPP BC as demonstrated by the Applicant’s stormwater management plans;
not have a direct, indirect or cumulative adverse impact on any terrestrial, aquatic or migratory animals or vegetation or wetlands pursuant to s 6.7 of SEPP BC;
not impact any periodic flooding that benefits wetlands and other riverine ecosystems as the site is not flood affected pursuant to s 6.8 of SEPP BC;
unlikely to have an impact on recreational land uses in the regulated catchment or have any impact to public access to and around foreshores pursuant to s 6.9 of SEPP BC; or
not likely have any adverse environmental impact to any adjacent or downstream local government area pursuant to s 6.10 of SEPP BC.
I am satisfied that the preconditons to consent in Chapter 6 of SEPP BC are met.
The site is situated within R2 Low Density Residential Zone and centre-based childcare facilities are permissible with consent. In determining the development application, I have given consideration to the objectives of the zone as required by cl 2.3 of the Camden Local Environmental Plan 2010 (LEP 2010).
Development for the purposes of demolition is permissible with consent pursuant to cl 2.7 of LEP 2010.
Pursuant to cl 4.3(2) of LEP 2010, the maximum building height for the Site is 9.5 m and the proposed building complies with this development standard.
As required by cl 6.2 (Earthworks) of LEP 2010, in determining the development application, I have considered the matters listed at subcl (3). In considering those matters I am assisted by a Statement of Environmental Effects (SEE) and the architectural plans which confirm the scope of excavation works. I am satisfied that the earthworks proposed in the development application will not have a detrimental impact on existing drainage patterns and soil stability in the locality of the development, likely future use or redevelopment of the land, neighbouring amenity or uses, cultural or heritage items or features of the surrounding land.
Camden Development Control Plan 2019 (DCP 2019) applies to the site, except where those provisions are overridden by the application of s 3.27 of SEPP TI. The SEE filed with the application details the compliance of the proposed development with the applicable provisions of DCP 2019. In determining the development application, I have considered the provisions of the development control plan s 4.15(1) of the EPA Act.
“3. Playroom 2: BMcD notes the door has been aligned with the west wall and also notes that it is half glazed. While observation could be improved by having a glass side light, this will still not provide a big enough arc of view to see the north and south ends of the room from the front door.
4. Playroom 3: BMcD notes windows in the south and east walls of the staff room. This is not an ideal solution because educators will be working in the play rooms most of the time with nobody in the staff room.”
(Exhibit 4)
“39 Internal planning at both levels [of the childcare centre] is still unacceptable and unsafe. It is imperative that children’s play areas can be properly supervised with clear sight lines and play areas [that] can be clearly observed from outside through large glass windows. This is a serious matter revealed by recent ABC Four Corners programmes and a NSW Parliamentary Inquiry into child safety in child care centres.”
(Exhibit 3)
In the alternative, Mr Wood’s evidence is that the amendments made to the internal planning of the childcare centre in the amended development application have improved surveillance of children and caregivers. He concludes that, given each playroom will include multiple educators, there is general surveillance provided to the rooms (and other spaces such as nappy change areas) from both the hallways and within the rooms. It is Mr Wood’s evidence that the proposed childcare centre is designed in a way that facilitates supervision of children and care givers.
In their final joint report, the planning experts reached agreement that any consent granted by the Court should include the following condition to provide further assistance in addressing any remaining concerns about the surveillance of children and caregivers:
“CCTV Surveillance for the childcare centre
(a) Prior to the issue of a construction certificate a CCTV plan is to be prepared that demonstrates CCTV cameras are to be installed within the childcare centre in the following areas as a minimum:
(i) Basement entry and basement lift and fire stair area
(ii) Ground floor entry door and lobby area, Playroom 1 (including a camera in each cot room) and Playroom 2 and fire stair.
(iii) First floor circulation corridor and Playroom 3 and fire stair.
(b) Prior to the issue of a occupation certificate confirmation of the installation of the CCTV is to be provided by an appropriately qualified installer who is to hold a Class 2C Security License.”
(Exhibit 4)
Dr Smith, for the Applicant argues that the Respondent’s contention in relation to the lack surveillance of children and educators arising from the configuration of the playrooms does not warrant refusal of the application. He provides the following reasons:
Playroom 1: Has five educators in that room which accommodates 0-2 year olds. Whilst the wall alignment is not straight it does not contain blind corners or hidden areas noting the open nature of the room, W4, W5, W17, W16, W18, W19 and D3, D7, G1 all allowing views into the room from external corridors, and vision panels to the bathrooms.
Playroom 2: Has four educators in a room which accommodates 2-3 year olds. The room is rectangular in shape with no real blind corners. The entry a D3 (entry door) is a glazed door which enables external viewing and has been amended to remove any alleged point of concealment. W17 and W18 to the bathrooms and W7 and D7 and G1 provide additional surveillance.
Playroom 3: Has three educators and an open layout (noting the stair only has a 1200mm high wall). There is a clear glazed door D3 and gate G1, and W21. Further, it has a windows facing into the room from the staff room and W18 from the toilet. Whilst there is a minor L shape all areas are fully visible from the other end at all times.
Dr Smith argues that the cot rooms also have multiple windows consistent with figures from Part 4.7 of the Guideline. Given the multiple educators in each room, general surveillance from hallways, and the layout proposed the Applicant considers, consistent with the evidence of Mr Wood there is an acceptable level of supervisions proposed by the development.
Further Dr Smith argues that the use of CCTV in childcare centres is also a usual practice and will assist in dealing with concerns around surveillance more broadly. The parties have agreed that a condition of consent to be imposed to deal with CCTV for provide an additional safeguard.
Relying on the preceding reasoning Dr Smith submits that the contention raised by the Respondent is not made out on the evidence and would not warrant refusal of the application.
In the alternative, Mr O’Gorman-Hughes, for the Respondent, argues that the Court should accept the evidence of Mr McDonald and conclude that the amended development application does not meet the requirement of Regulation 115 of the Education and Care Services National Regulation (2011) (NSW) (the Childcare Regulation). He argues that, on the evidence of Mr McDonald, the Court should conclude that the premises of the proposed child care centre are not designed in a way that facilitates supervision of children and care givers at all times.
Mr O’Gorman-Hughes emphasises that there is no constraint, beyond poor design, on this childcare centre achieving rectilinear spaces which promote adequate supervision. Further, he submits that the poor design that results in the lack of adequate supervision is a problem that is required to be addressed at the time of approval of the facility and is not a matter that can be deferred for consideration of the regulator at the time of operational licensing. He argues that this distinguishes these proceedings from the reasoning of Commissioner Gray in Entrepreneur Enterprises Pty Ltd v Lane Cove Municipal Council [2023] NSWLEC 1323 at [16] where she highlighted that compliance with the Childcare Guidelines is not required by the EPA Act, except for the two regulations expressly noted in SEPP TI being those in relation to unencumbered play areas.
Finally, Mr O’Gorman-Hughes argues that the agreed condition in relation to CCTV is not a measure that assists in achieving adequate supervision, but rather a measure that acts after any opportunistic predatory or poor behaviour.
Mr. O’Gorman-Hughes concludes that the substandard architectural design, which leads to insufficient supervision of both children and caregivers, justifies the refusal of the development application.
A centre-based service must ensure that the rooms and facilities within the premises (including toilets, nappy change facilities, indoor and outdoor activity rooms and play spaces) are designed to facilitate adequate supervision of children at all times, having regard to the need to maintain their rights and dignity.
Child care facilities must also comply with any requirements regarding the ability to facilitate supervision that are contained in the National Construction Code
The parties agree that on its terms Regulation 115 requires an assessment of each room, but that supervision can be from both within the room and outside the room from another part of the centre. Further, it is clear that the Regulation requires a balancing of the provision of supervision with the dignity and rights of children.
The issue of supervision of children is also the subject of s 4.7 of the Childcare Guidelines, which restates the terms of Regulation 115 and provides the following design guidance:
Design considerations should include:
- solid walls in children’s toilet cubicles (but no doors) to provide dignity whilst enabling supervision.
- locating windows into bathroom or nappy change areas away from view of visitors to the facility, the public or neighbours.
- avoiding room layouts with hidden corners where supervision is poor, or multi activity rooms for single groups of children.
- avoiding multi-level rooms which compromise, or require additional staffing, to ensure adequate supervision. If multi-level spaces are proposed, consideration should be given to providing areas that can be closed off and only used under supervision for controlled activities.
In addition to the evidence of the town planners, the amended development application includes a final POM for the centre. The POM addresses supervision of children. The POM emphasises that children attending the centre require active supervision from educators and carers who are physically proximate to them. Further, the POM underlines the need for carers to be ambulant and to view play areas from different angles.
I am not persuaded that the architectural plans, which form part of the amended development application, contain concealed areas or hidden corners which provide spaces away from view or where supervision will be poor. Rather, I am satisfied that the design facilitates surveillance by staff within the specific spaces and surveillance by staff moving through the centre from areas such as hallways or outdoor play spaces. These sightlines are enhanced by the appropriate use of permeable barriers, such as glazed openings, the use of gates to toileting and bottle preparation rooms. The adoption of CCTV is not a substitute for good design, passive surveillance or the active supervision of children by caregivers, but in my view will act as a further level of assurance.
On this basis I prefer and adopt evidence of Mr Wood at [31] and the reasoning of Dr Smith at [34] – [35]. For these reasons, and having given due regard to the Childcare Guidelines, I find that the Respondents contention is not made out on the evidence, and the internal design of the childcare centre is acceptable.
The development application was notified for a period of fourteen days from 8 November 2024. The Respondent received 93 submissions and a petition with 81 signatures. All the submissions objected to the proposed development. The issues raised in the submissions can be summarised as follows:
Traffic generation and pedestrian safety,
Inconvenient car parking,
Insufficient road width for on-street car parking,
Lack of pedestrian infrastructure,
Incompatibility with the character of the area and streetscape,
Overlooking and privacy impacts to adjoining properties,
Site suitability,
Lack of local support,
Noise generation,
risk to locality in case of emergency requiring evacuation,
Offensive odour generation from waste management,
Safety and security,
Loss in property value, and
Disruption during construction stage.
At the commencement of the hearing on site the Court was also addressed by a number of residents who detailed their ongoing concerns with regard to the development application, despite the amendments made. A summary of their concerns was tendered as Exhibit 9.
At the hearing the Court was assisted by traffic engineering experts who addressed, among other issues, the matters raised in issues one through four in the preceding. Their agreed conclusions can be summarised as follows:
No issue is raised in relation to the quantum of traffic generated by the proposed development. Under the earlier form of the development which proposed 80 children the quantum of additional traffic was estimated in the Traffic and Parking Assessment (TPA) as:
(a) 64 morning peak trips (32 in and 32 out trips); and (b) 56 afternoon peak trips (28 in and 28 out trips).
With the subsequent reduction in child places to 70 spaces the parking generation would be concordantly reduced.
Further, the TPA identified no changes to intersection levels of service arising from the proposed childcare centre.
The experts agree that the proposed on-site tandem car parking arrangements are acceptable and that, subject to the POM, the proposed visitor car parking spaces will be sufficient for the drop-off and pick-up of children. Further they agree that the allocated visitor car spaces in the basement car park are adequate for the proposed childcare places, with no need to rely on parking on the street.
In relation to the adequacy of pedestrian access, the traffic experts agree that an external concrete footpath can be provided on the eastern side of Plane Tree Drive, along the frontage of the subject site and extending by approximately 20 metres to the north, to take advantage of the existing opening in the central median island on the road, for pedestrians to cross from the other side if needed. I note that the requirement to provide this footpath as part of the development is incorporated in the conditions of consent annexed to the judgment.
“First, where land by its zoning has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to whether development is appropriate. As has been frequently stated by this Court, whilst the fact that a particular use may be permissible is generally a neutral factor, a planning decision must generally reflect an assumption that development which is consistent with the zoning will be permitted. This is because the Act provides a complex regime, including extensive public participation, to determine the nature and intensity of development which may be appropriate at any site, and accordingly weight should be given to the outcome of this process (see BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 at [117]-[118] per McClellan CJ of LEC).
Second, the above does not mean that the Court must not give close consideration to all matters otherwise required pursuant to s 79C of the Act. Whilst I take account of the fact that many of the issues initially identified by Council are no longer pressed, each of the issues that are now before the Court require consideration based upon the evidence now available.
Third, the extensive and well-considered objections to the proposal are clearly indicative of extensive local community concerns. While these concerns are understandable, they must be closely considered in the context of the amended application and the evidence now before the Court, particularly the expert evidence.”
I respectfully adopt the preceding reasoning of Robson J. In considering the residents’ concerns I have given weight to the permissible uses outlined in the R2 Low Density Residential zone in LEP 2010. This instrument codifies the strategic planning intent of the Council and is part of the influence on the future character of the zone. Further, in regard to the street presentation and size of the proposed development, the town planners have reached agreement that the proposed development is acceptable.
A number of objections raise concerns about compatibility of the proposed development, and the use of the site as a child care centre, with the existing residential character of Plane Tree Drive and its low-density zoning. In considering these objections I note that the proposed development is compliant with the controls in LEP 2012 that are relevant to bulk, scale and intensity of development, see pars [24] and [25]. Further, the proposed use of the site for the purpose of centre-based childcare is a permitted use in the R2 Low Density Residential zone. These two factors point towards a conclusion that the development proposed is reflective of the character anticipated by the planning controls and are planned for elements in the locality. However, a development may be held to be incompatible due to its impacts. In this case, on the evidence such impacts are, in my view, acceptable. Applying the principle in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [117] it is appropriate to give weight to the planning instruments, and where environmental impacts are determined to be acceptable, grant consent to an application for a use that is permitted in the zone. I agree with and accept the conclusion of the planning experts that the amended architectural design is not incompatible with the character of the area and streetscape.
The planning experts agree, and I accept, that the privacy concerns raised by adjoining property owners have been addressed by conditions detailing the requirements of the CCTV camera orientation (Condition 3.5(18)) as well as treatment of the proposed upper storey windows to obscure overlooking.
Further, I note that the amended development application deleted the previously proposed upper floor outdoor play area.
The development application is accompanied by detailed background acoustic testing and noise modelling by Renzo Tonin & Associates. Further, updated POM includes an updated Acoustic Report to reflect the proposed number of children in the amended development application. The Acoustic Report demonstrates that the proposed centre will comply with the criteria set out in the Association of Australian Acoustic Consultants Guideline for Child Care Centres Acoustic Assessment (2020) which is endorsed by the NSW EPA in the Noise Guide for Local Government (2023).
The annexed conditions include two important conditions in relation to noise generated from the proposed development. Firstly, prior to construction, the conditions require an acoustic compliance report to be prepared by an independent acoustic consultant and submitted to Council confirming that the development can meet acoustic criteria. Secondly, the conditions require that prior to the issue of an Occupation Certificate a report is prepared confirming that the operational noise levels will comply with the approved acoustic report. I am satisfied that these conditions will ensure that the noise generated from the proposed development will meet the nominated acoustic criteria. The noise impacts arising from the development are acceptable.
The amended development application is supported by a detailed Construction Traffic Management Plan (CTMP), the content of which was the subject of the parties Supplementary Traffic Joint Expert Report. In their joint report the traffic experts agreed that the CTMP is acceptable and has satisfactorily addresses the Respondent’s feedback in relation to:
The proposed maximum daily vehicle trips during construction,
The practicality of the promotion of construction workers utilising public transport,
Parking of construction vehicles, and
Whether an 8.8m MRV can safely access the site and the proposed haulage route.
The Respondent maintains its contention that the detriment impacts to neighbouring properties arising from the construction of the centre based childcare centre on the site warrants the refusal of the development application. The Respondent relies on the expert town planning evidence of Mr McDonald to ground this contention. That evidence is:
“63. A construction traffic management plan by Hemanote Consultants was provided on 14 November 2025.I understand that the traffic experts are to file a supplementary joint experts report. However, based on my experience as both a planner and an architect, I have an opinion on the impacts in the immediate locality arising from excavation.
- I had calculated conservatively that the excavation may generate about 200 trips. Additionally, there will be trips to bring excavation machinery to the ste and [to] take it away.
65. Trucks can only make a left turn out of the site and are unlikely to be able to negotiate the break in the median strip further up the street meaning they would travel to the point where Plane Tree Drive splits to turn around the roundabout. The construction traffic management plan confirms this.
- The construction traffic management plan reveals that the MRV 8.8 metre trucks proposed for the project would make 16 trips per day (2 every hour) over the excavation period of 16 weeks making the total number of trips 256, this is more than I estimated.
67. The impacts on the residential amenity of adjacent properties and properties along Plane Tree Drive during this process would be severe.
68. In my opinion, this issue makes the site unsuitable for the proposed development.”
(Exhibit 3)
Mr McDonalds concerns in relation to the adverse amenity impacts arising from the development are focussed on the impacts experienced during the excavation phase. By reference to the CTMP that period of the construction has a duration of 16 weeks within a construction program of some 12 months.
In relation to his evidence, extracted at par [68], I make the following findings:
His calculation of approximately 200 vehicle trips for the excavation phase is discounted in preference of the agreed evidence of the traffic engineers. That evidence is that, with the use of the MRV proposed, the vehicle movements attributable to excavation will be a maximum of 16 a day over a duration of 16 weeks (maximum of 256 trips). I accept and prefer the agreed evidence of the traffic engineers that this quantum of vehicle movements is acceptable and can be accommodated in the street network. In making this finding I recognise that noise, dust or traffic impacts arising from excavation are transitory and will cease once the excavation phase of the development. I acknowledge that ongoing noise, traffic and other impacts will arise throughout the remaining period of construction, but as demonstrated by the CTMP these impacts are of lesser quantum than those experienced during the excavation phase. These impacts experienced by adjoining residents need to be considered in the context of these time periods and the mitigation and management measure proposed in the CTMP and the annexed conditions.
In the supplementary joint report of the traffic engineers, they agree that the updated swept paths diagram of the MRV truck demonstrates that the MRV can safely utilise the roundabout in Plane Tree Drive.
I accept the submissions of Dr Smith, for the Applicant, that the expert evidence of Mr McDonald in relation to the adverse amenity impacts arising from the construction of the development lacks explicit analysis or reasoning. He submits that as such his evidence is unfounded assertion and should be given little weight.
Construction impacts are a usual part of development, and they are a necessary, but transient, aspect of development. The CTMP sets out how this will be appropriately managed and mitigated. The transitory nature of the impacts is a relevant consideration in determining the weight to be given to these impacts in the evaluation of the development application.
In undertaking the evaluation under s 4.15 of the EPA Act, I am satisfied that the concerns raised by the objectors do not warrant the refusal of the application.
For the reasons expressed above, each of the contentions raised by the Respondent on the appeal have been adequately addressed through additional information and amendments to the development application. As such, there is no reason advanced that could form a basis upon which development consent should be refused.
The proposed development is permissible on the site, the jurisdictional preconditions have been met, and it complies with the relevant development controls. Having considered the evidence from the experts engaged in the proceedings I am not persuaded that there are any merit reasons which would support the refusal of the application. Further, I am satisfied that the matters raised by the objectors have been satisfactorily addressed either through amendments to the development application or conditions of consent.
It is therefore appropriate to grant development consent in the circumstances, subject to the conditions agreed by the parties.
The Court orders that:
By consent, the Applicant is granted leave to amend their development application DA2024/528/1 pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) in accordance with the amended plans and documents in Exhibit 1.
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondents costs thrown away as a result of the amendments to the Development Application as agreed or assessed.
The appeal is upheld.
Development Application DA 2024/528/1, as amended, for the demolition of existing structure and construction of a 70 place child care centre including stormwater drainage construction, basement car parking, landscaping and associated site works at 9 Plane Tree Drive, Narellan Vale (Lot 13 DP 801976) is determined by the grant of consent subject to the conditions in Annexure A.
The exhibits are returned with the exception of Exhibits 1, 10, A and B.
Annexure A (362 KB, pdf)
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Childcare Developments Group Pty Ltd
Camden Council [2025] NSWLEC 1849
(1997) 93 LGERA 373
(2004) 138 LGERA 237