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[2026] NSWLEC 1443
General information, not legal advice.
Land and Environment Court (NSW)
2026-07-22
Swan AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Dellimanolis v Canterbury Bankstown Council [2026] NSWLEC 1443
Hearing dates: 4 June 2026
Date of orders: 22 July 2026
Decision date: 22 July 2026
Jurisdiction: Class 1
Before: Swan AC
Decision: The Court orders:
(1) The appeal is dismissed.
(2) Development Application No DA-68/2025 for the demolition of an existing dwelling, relocation of sewer and construction of a two-storey centre based child care facility for 65 children, over one level of basement car parking on land known as 8 Robertson Road, Chester Hill (Lot 2 DP444821) is refused.
(3) The Exhibits, other than Exhibit B, E, K, P, Q, 12 and 13, are returned.
Catchwords: APPEAL – development application – centre based child care facility – whether clause restricting vehicular access for child care facilities on a cul-de sac or on a road with carriageway width less than 10m is a development standard – clause 4.6 variation to cul-de-sac and road width control – appeal dismissed
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 1.4, 8.7
Canterbury Bankstown Local Environmental Plan 2023, cll 4.6, 6.13, Pt 2
North Sydney Local Environmental Plan 1989 (Repealed), cl 14A
State Environmental Planning Policy (Affordable Rental Housing) 2009 (Repealed), cl 30AA
Warringah Local Environmental Plan 1985 (Repealed), cl 28A
Cases Cited: Canterbury Bankstown v Dib [2022] NSWLEC 79
Inner West Council v XYZ Services Pty Ltd [2025] NSWLEC 68
Jeffrey v Canterbury Bankstown Council (2021) 250 LGERA 340; [2021] NSWLEC 73
Kruf v Warringah Shire Council [1988] NSWLEC 154
North Sydney Municipal Council v P D Mayoh Pty Ltd (No. 2) (1990) 71 LGERA 222
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited: Building Code of Australia 2022
Canterbury Bankstown Development Control Plan 2023
Education and Care Services National Regulations 2011
NSW Child Care Planning Guideline (October 2021)
Category: Principal judgment
Parties: Peter Dellimanolis (Applicant)
Canterbury Bankstown Council (Respondent)
Representation: Counsel:
R White (Applicant)
C Ireland (Respondent)
Solicitors:
Storey and Gough (Applicant)
Canterbury Bankstown Council (Respondent)
File Number(s): 2025/00214044
Publication restriction: Nil
This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the actual refusal of Development Application No DA-68/2025 (DA) by Canterbury Bankstown Council (Council). The Applicant (Peter Dellimanolis) seeks consent for the demolition of an existing dwelling, relocation of sewer and construction of a two-storey centre-based child care facility for 65 children, over one level of basement car parking on land known as 8 Robertson Road, Chester Hill (Lot 2 DP 444821) (the site).
The key issue in the proceedings is whether Clause 6.13 of Canterbury Bankstown Local Environmental Plan 2023 (CBLEP) is a development standard capable of variation under cl 4.6 of CBLEP. Clause 6.13 seeks to restrict approval for the development of centre-based child care facilities, where vehicular access is obtained from a classified road, cul-de-sac or a road where the carriageway between kerbs is less than 10m, in the area marked “Area 1” under CBLEP.
With consideration of the evidence and submissions, I find that cl 6.13 of CBLEP is not a development standard as defined under s 1.4 of the EPA Act and is therefore not capable of variation under cl 4.6 of CBLEP. Accordingly, I find that the DA should be refused.
The site comprises a regularly shaped lot with an area of 1,201m2. The site is zoned R2 Low Density Residential pursuant to CBLEP. Under the Land Use Table at the end of Pt 2 of CBLEP, centre-based child care facilities are permitted with consent in the R2 zone.
Clause 6.13 of CBLEP contains special provisions for centre-based childcare facilities and states:
6.13 Special provisions for centre-based child care facilities
Development consent must not be granted for the purposes of centre-based child care facilities on land identified as “Area 1” on the Clause Application Map if the vehicular access to the land is from—
(a) a classified road, or
(b) a cul-de-sac road or a road where the carriageway between kerbs is less than 10m.
The immediate vicinity of the site is zoned R2 Low Density Residential. Robertson Road is both a cul-de-sac and has a carriageway width of less than 10m between kerbs (being 9.2m) and the site is within the mapped area marked “Area 1” under CBLEP.
Section 1.4 of the EPA Act defines development standards as:
development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of—
(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,
(b) the proportion or percentage of the area of a site which a building or work may occupy,
(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,
(d) the cubic content or floor space of a building,
(e) the intensity or density of the use of any land, building or work,
(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,
(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,
(h) the volume, nature and type of traffic generated by the development,
(i) road patterns,
(j) drainage,
(k) the carrying out of earthworks,
(l) the effects of development on patterns of wind, sunlight, daylight or shadows,
(m) the provision of services, facilities and amenities demanded by development,
(n) the emission of pollution and means for its prevention or control or mitigation, and
(o) such other matters as may be prescribed.
Expert evidence on the town planning issues was given by Mr George Nehme, a town planner engaged by Dellimanolis. For the Council, expert evidence was given by Mr Robert Steedman, Council’s team leader development assessment. The final joint report dated 6 May 2026 was filed with the Court on 21 May 2026, and the experts also gave oral evidence at the hearing (Ex 4, (Planning Expert Joint Report)).
The town planning experts agree on contentions relating to FSR, insufficient information, compliance with the Education and Care Services National Regulations 2011, compliance with the NSW Childcare Planning Guideline, the basement projection of the building and the on-site parking provision.
The town planning experts remain in disagreement as to whether cl 6.13 of CBLEP is a development standard and whether approval of the development sets an undesirable precedent or is in the public interest.
The DA were publicly exhibited from 19 February 2025 to 12 March 2025 and eight objections were received. No residents gave oral evidence at the hearing. The issues raised in the written submissions can be summarised as follows:
Traffic
Safety risks
Deficient parking
Dysfunctional basement design
Acoustics
Number of child care facilities in the locality
Waste management
Inadequate infrastructure
In relation to the resident concerns, a number of contentions are resolved through the expert evidence, but the remaining key issue is addressed in this judgment below.
Council contends that cl 6.13 of CBLEP is a prohibition and not a development standard and hence is not a provision of the environmental planning instrument (EPI) which can be varied by cl 4.6 of CBLEP.
Council accepts that the primary point of reference for deciding whether a particular provision in an EPI is a development standard or not, is an examination of the provision against the definition of development standards in s 1.4 of the EPA Act. Council accepts this approach consistent with Inner West Council v XYZ Services Pty Limited [2025] NSWLEC 68 (XYZ).
Council contends that the provision of cl 6.13 of CBLEP means that development consent must not be granted for a centre based child care facility if the vehicle access for the facility is from a number of particularised types of road (classified road, cul-de-sac, or a road with a carriageway between kerbs of less than 10m), which is not an aspect of development listed in s 1.4 of the EPA Act. Council contends that the external road network to the site is also not within the ordinary meaning of the term “aspect of development”. Instead, Council submits that cl 6.13 is a clause identifying a pre-condition that requires the existence of a certain type of road to which the development has vehicular access to, and that either the type of road exists, or it does not.
Council points to the significant body of case law relating to the question of whether or not a particular provision of an EPI is a development standard. In particular, Council relies on and cites:
Strathfield Municipal Council v Poynting [2001] 116 LGERA 319 (Poynting), where the Court held that a clause providing a single building could not be erected on land within a particular zone where the land had an area of less than 560m2, was a development standard. More relevantly, in Poynting, the Court of Appeal suggested a two-step approach in determining whether a provision of an EPI acts as a development standard, summarised as:
(a) Step 1: determine whether the proposed development is prohibited under any circumstance. A provision prohibiting the development under any circumstances will be a provision controlling development, but it will not be a development standard. (b) Step 2: whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited development). Referring to the definition of ‘development standards’, there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect to an aspect of the development.
“That provision was similar in its effect to the provision considered in North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222. There, the provision precluded the erection of a residential flat building on land in residential zone 2(c) if “any principal building on adjoining land is less than three storeys measured vertically above any point at natural ground level”. The majority of the Court of Appeal interpreted this provision as prohibiting the erection of a residential flat building on land within the zone that has the characteristics specified in the provision: at 234 and 236. The provision was therefore not one “in relation to the carrying out of development”. As Mahoney JA noted at 234, there is a distinction between a provision in the form of: “On land of characteristic X no development may be carried out” and a provision in the form of: “On such land development may be carried out in a particular way or to a particular extent”: see also Clarke JA at 236. The provision in that case was of the former kind, not the latter kind, and hence not a development standard.”
“The Council argued that a textual contraindicator is that cl 30AA establishes a jurisdictional fact. It may be accepted that cl 30AA does establish a precondition that must be satisfied in order to enliven the power of a consent authority to grant development consent to a boarding house on land within the R2 Zone: the consent authority must be satisfied that the boarding house has no more than 12 boarding rooms before it can grant development consent to that boarding house. Nevertheless, the inclusion in a provision of an environmental planning instrument of a jurisdictional fact or criterion upon which the exercise of the power to grant development consent is conditioned does not necessarily cause the provision not to come within the definition of “development standards”. The test of whether provisions of an environmental planning instrument are development standards or not is simply whether they are “provisions in relation to the carrying out of development” and “provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development”. If the provisions answer those descriptions, they will be development standards regardless of whether or not the provisions do so by including a jurisdictional fact.”
Council outlines that if considering the two-step approach in Poynting, it their position that cl 6.13 of CBLEP prohibits the development under any circumstances on the site due to the nature of Robertson Road (that being a cul-de-sac and having a carriageway between kerbs of less than 10m). In Council’s view cl 6.13 does not pass the first step in Poynting for the identification of a development standard, as it is a prohibition rather than a standard in relation to the carrying out of development for the site.
Council submits that cl 6.13 of CBLEP does not satisfy the second step in Poynting as it is not a standard in relation to the aspect of the development. The dimensions of the road or whether it is a classified road or cul-de-sac are features of the surrounding landscape and road system. They are not aspects of the development, but external to that development (Poynting at [96]-[99]).
Council therefore submits that the proposed development must be refused as cl 6.13 of CBLEP is not a development standard capable of relaxation pursuant to a cl 4.6 objection. Further, Council notes that Robertson Road is a prohibition for two independent reasons – being a cul-de-sac and a road with a carriageway between kerbs of less than 10m.
Dellimanolis contends that cl 6.13 of CBLEP is a development standard within the definition of s 1.4(1) of the EPA Act, and as such can be varied using cl 4.6 of CBLEP.
Dellimanolis also responds to the significant body of case law relating to the question of whether or not a particular provision of an EPI is a development standard and draws attention the decision of Preston CJ in XYZ. Dellimanolis notes from XYZ, that case law does not and cannot replace the statutory test to determine whether a particular provision of an EPI is to be a development standard going to [36] and [37] of the Judgment where His Honour Preston CJ, states:
“The test for whether a provision of an environmental planning instrument is or is not a development standard is a statutory test, as “development standards” is a defined term in s 1.4(1) of the EPA Act. A provision that falls within the definition is a development standard whilst a provision that does not fall within the definition is not a development standard. There is no other test.
In particular, there is no alternative, judicially-developed test that replaces the statutory test. Courts, in categorising a particular provision of an environmental planning instrument as being or not being a development standard, have sought to explain how the definition of “development standards” may be applied. The Court of Appeal’s suggested two-step approach in Poynting is an example. But such judicial exegesis does not and cannot replace the statutory test. Rather, it provides guidance as to how to apply the statutory test to determine whether a particular provision of an environmental planning instrument is to be categorised as a development standard.”
Dellimanolis submits that in terms of the steps expressed in Poynting, as it relates to the current case, the development is for the purpose of a centre-based child care facility, which is permissible in the R2 zone under the CBLEP. The proposed development is therefore not prohibited on the site under any circumstances (XYZ at [42]).
Dellimanolis contends that cl 6.13 of CBLEP only operates to prevent development consent for a centre-based child care facilities if it proposes a vehicular access from a classified road, a cul-de-sac or a road with a carriageway between kerbs of less than 10m. Hence, if the development had no vehicular access at all (and relied on on-street parking), cl 6.13 would not operate to prevent development consent being granted for a centre based child care facility on the site. Alternatively, if the development proposed construction of a driveway across an adjoining property to another public road (which was not a classified road, a cul-de-sac or a road with a carriageway between kerbs of less than 10m) in order to obtain vehicular access, cl 6.13 would also not operate to prevent development consent to that said centre based child care facility.
Dellimanolis therefore contends that cl 6.13 of CBLEP specifies a requirement or fixes a standard in respect of the location or siting of vehicular access to the building and/or the provision of facilities (vehicular access) for the moving of vehicles onto the site for a purpose permitted with consent under the Land Use Table (XYZ at [44]). Dellimanolis submits that the location or siting of vehicular access falls within paragraph (c) of the definition of development standards, as it establishes a standard which regulates the location of the land use or alternatively paragraph (g) of the definition of development standards, with the vehicular access from the cul-de-sac, being the provision of facilities for the manoeuvring of vehicles and vehicular access the site.
Dellimanolis submits that applying this construction of cl 6.13 of CBLEP and the definition of development standards to the proposed development, that cl 6.13 specifies a requirement or fixes a standard in respect of the location or siting of vehicular access, or the means of movement of vehicles onto the site (to the building proposed to be erected as a centre-based child care facility). The requirement or the fixing of a standard is that the buildings cannot be accessed by vehicles from a classified road, cul-de-sac or a road with a carriageway between kerbs of less than 10m (XYZ at [45]).
Dellimanolis submits that from Poynting at [99], that the "list of aspects in paras A to N of the definition of development standards of the Act shows that a broad view of what is an aspect of a development should be taken” and there may be other items that may fall within the list of inclusions, and that the list at s 1.4 of the EPA Act does limit the generality and that a broad reading of what forms a development standard can be made.
Dellimanolis submits that the case law relied on by Council has limitations in the context of the current case and that:
Different facts occurred in Kruf, and hence the case is not automatically analogous to the circumstances of the case.
As noted in Poynting at [40], the decision of Holland J in Kruf did not receive universal acceptance. Similarly, in Mayoh, Kirby P noted cases in which His Honour said, the then permanent judges of the Land and Environment Court had declined to follow the reasoning of Holland J in Kruf.
With respect to Mayoh, Dellimanolis submits that Council’s construction that cl 6.13 prohibits the development in any circumstances is wrong and inconsistent with the findings of His Honour Preston CJ in XYZ.
Dellimanolis therefore submits that as cl 6.13 of CBLEP is a development standard, there is no legal restriction on the grant of development consent for the DA, subject to the consent authority’s satisfaction of the adequacy of the cl 4.6 variation request.
The proposed development is for the erection of a building for the purpose of a centre-based child care facility. Development for that purpose is permissible with consent on the site, which is zoned R2 Low Density Residential, under the Land Use Table in Pt 2 of the CBLEP. The proposed development, therefore, is not prohibited on the site under any circumstances, thereby answering the first question in Poynting and following the reasoning of His Honour Preston CJ in Dib at [42]. I accept Dellimanolis’s construction of how the first step is interpreted for the site and note this is contrary to the position of Council who take the position that because of cl 6.13 of CBLEP, the DA also fails the first step in Poynting.
However, in addressing the second step in Poynting consistent with His Honour Preston CJ’s reasoning in Dib at [66], cl 6.13 of CBLEP also establishes a precondition that must be satisfied in order to enliven the power of a consent authority to grant development consent to a centre-based childcare facility on land within “Area 1”. Whilst His Honour Preston CJ noted in the case of Dib that a jurisdictional fact or criterion upon which the exercise of the power to grant development consent is conditioned does not necessary cause the provision not to come within the definition of “development standards”, His Honour Preston CJ still had primary regard to examining the definition of development standards under s 1.4 of the EPA Act, and in that case His Honour Preston CJ concluded that the number of rooms in the boarding house under cl 30AA of State Environmental Planning Policy (Affordable Rental Housing) 2009, was a development standard.
In my consideration, the counter factual can also be true. Whilst a jurisdictional precondition can fall within the definition of a development standard as per the conclusions and circumstances of Dib, then so too a jurisdictional precondition might also not fall within the definition of development standards. As noted by His Honour Preston CJ at [36] of XYZ (cited at [27] of this judgment) there is no other test to determine a development standard than to examine the definition of development standards under s 1.4 of the EPA Act.
I have therefore approached the interpretation of cl 6.13 of CBLEP to that test (XYZ at [36]). I accept the submissions of Council that the dimensions of the nearby road or whether it is a classified road or a cul-de-sac are not in any ordinary or available meaning of the phrase an “aspect of that development”. They are features of the surrounding landscape and road system. They are not aspects of the development, but external to that development. This conclusion also follows the reasoning in Dib behind the distinction of what constitutes does or does not constitute a development standard as identified in Mayoh (Dib at [60]) (referred to at [22(4)] in this judgment).
Referring to Mayoh, the restriction of vehicular access to a centre-based child care facility from a cul-de-sac or road with a carriageway between kerbs of less than 10m follows the format of “On land of characteristic X no development may be carried out”**. It is not a provision which specifies “On such land development may be carried out in a particular way or to a particular extent” (Dib at [60]).
Dellimanolis submissions provide an expanded consideration of whether vehicular access from Robertson Road establishes a development standard by citing subclause (c) and (g) of the development standards definition. I do not accept Dellimanolis’s case that 6.13 of CBLEP specifies a development standard with respect to:
(c) the character, location*, siting, bulk, scale, shape, size, height, density,*
design or external appearance of a building or work*,*
(g) the provision of facilities for the standing, movement, parking, servicing,
manoeuvring*, loading or unloading of vehicles.* (my emphasis)
In terms of location, s 1.4(c) of the EPA Act specifies standards for the location of a building or work. I have accepted Council’s submissions that the road network external to the site is a feature of the surrounding landscape and road system, is an existing independent condition external to the development and is not an aspect of the development. I do not consider that the precondition restricting vehicular access from the existence of a certain road or not, is a provision specifying a requirement or fixing a standard for the location of a building or work.
With respect to s 1.4(g), I interpret the provision of facilities for to be something provided by the development (i.e. the provision of something part of the development), or using the development standards definition an “aspect of the development” and that standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicle**s are the requirements being specified or the standards are being fixed for an aspect of the development. I interpret that the provision of facilities for manoeuvring is not a reference to obtaining vehicular access from a pre-existing condition of the landscape external to the site, being the road hierarchy/designation or road type external to the site.
Whilst I have accepted Council’s evidence that cl 6.13 of CBLEP does not fit within the chapeau of the definition of development standards, I also have considered Dellimanolis’s submissions on s1.4(c) and (g) and I reject that cl 6.13 sets a development standard pursuant to those subclauses of s1.4 of the EPA Act.
In the alternative consideration and if cl 6.13 of CBLEP were a development standard, Council presses that the cl 4.6 request is inadequate as it does not establish that there are sufficient environmental planning grounds to justify a departure from the development standard, nor has it demonstrated that compliance with it is unreasonable and unnecessary.
On Dellamanolis’s case, the cl 4.6 variation request suitably demonstrates the required matters set out in cl 4.6(3) of CBLEP and as such flexibility should be afforded to the strict application of cl 6.13 of CBLEP.
It was agreed between the parties that cl 6.13 of CBLEP does not specify objectives. It was also common ground that in order to demonstrate if compliance with the development standard is unreasonable and unnecessary because the objectives of the development standard are achieved notwithstanding the non-compliance (Wehbe v Pittwater Council [2007] 156 LGERA 446 (Wehbe). “test 1”), then the “assumed objectives” of the development standard would need to be discerned as per the reasoning provided by His Honour, Preston CJ in Jeffrey v Canterbury Bankstown Council [2021] NSWLEC 73 at [15] (Jeffrey).
The Planning Experts Joint Report (Ex 4) is accompanied by a cl 4.6 written request prepared by Pivotal Planning dated April 2026 (Ex K) (Pivotal Planning cl 4.6 request). The Court understands that this is the first time a cl 4.6 written request was provided by the Applicant, as an attachment to the Planning Expert’s Joint Report. The adequacy of the cl 4.6 request and the assumed objectives of cl 6.13 of CBLEP was therefore a key feature in the oral evidence of the planning experts.
The Council submits the Pivotal Planning cl 4.6 variation request does not properly identify the objectives of the standard. Council submits that the cl 4.6 variation request is not well founded as it omits to refer to an assumed objective to be discerned as a proper construction of cl 6.13 of CBLEP, which is avoiding adverse amenity impacts on surrounding residents, and ensuring the development is compatible with the surrounding residential development. Council submits that the assumed objectives identified in the Pivotal Planning cl 4.6 incorrectly stops at vehicular and pedestrian safety and impact on local road networks.
Council submits that the obvious purposes and objectives of the standard have not been addressed, namely protecting the amenity of adjoining residences along the cul-de-sac. Council submits that the objectives are not achieved because of the additional trip generation that must enter and exit past the same residences on Robertson Road (right in, left out to the centre-based childcare facility) or requiring child care facility traffic to travel along the cul-de-sac and turn around and again pass by all residences along Robertson Road.
The Council submits that a further reasonable assumed objective of the cul-de-sac restriction is ensuring emergency vehicle access from both directions, and that this is not considered in the Pivotal Planning cl 4.6.
Council’s expert Mr Steedman agreed with his own counsel during oral evidence regarding the additional assumed objectives put to him.
Council submits that the Pivotal Planning cl 4.6 variation request does not demonstrate that the development standards purpose or objective will be achieved and no other way of demonstrating that compliance is unreasonable and unnecessary in Wehbe is utilised in the cl 4.6 variation request.
Council submits that the Pivotal Planning cl 4.6 variation request has not grappled with these assumed objectives and that the Court cannot be satisfied that departure from the control will achieve the underlying objectives. Council submits that this is fatal to the cl 4.6 variation request (Wehbe at [70]).
Council submits that the Pivotal Planning cl 4.6 variation request does not establish sufficient environmental planning grounds. However, further elaboration on this point was limited in the joint report, during oral evidence and in Council’s submissions.
Council submits that the Pivotal Planning cl 4.6 variation request does not meet the objectives of cl 4.6, in that departure from the minimum 10m carriageway and cul-de-sac requirement does not lead to a better outcome for the development. Council also submits that there is no demonstration that the DA will achieve the same level of residential amenity or facility of emergency access, as if the requirement of the control were observed. Council submits that there is no demonstration that it's better not to comply with the clause in its requirement then comply with it.
The Pivotal Planning cl 4.6 variation request is authored by Dellimanolis’s planning expert, being Mr Nehme. The grounds articulated in the cl 4.6 variation request are summarised below.
The Pivotal Planning cl 4.6 variation request discerns the following assumed objectives of cl 6.13 of CBLEP as:
To ensure that development for the purpose of a centre-based child care centre facility:
(a) Occurs on land which is suitable for the use in terms of vehicular and pedestrian safety. (b) Does not adversely impact on local road networks.
Mr Nehme generally maintains his position in the oral evidence that the principal objective of cl 6.13 of CBLEP is vehicular and pedestrian safety and impact on local road networks. Mr Nehme rejects that the assumed objectives needed to include the additional considerations put to him by Council in cross examination.
Mr Nehme relies on the addendum traffic assessment of Hemanote (dated 1 May 2026) (Ex L) in the Pivotal Planning cl 4.6 written request. The Hemanote report concludes that the approval of the centre-based childcare facility will not compromise the operation and safety of Robertson Road, and in particular:
The new access driveway allows for two-way traffic; a B99 vehicle can pass at the same time as a B85 vehicle, and all vehicles can enter and exit in a forward direction.
The estimated traffic generation from the development is low and will not have any adverse impacts on the traffic flow or performance of Robertson Road, surrounding streets or nearby intersections. The existing levels of service and environmental capacity of Robertson Road will be maintained, and surrounding intersections will maintain a Level A service.
Whilst a cul-de-sac, Robertson Road is a relatively long street (at 350m in length) and the proposed development is 250m away from the end of the cul-de-sac. Therefore, the traffic generated by the centre-based child care facility will not need to travel through the remaining two thirds of the road or near the cul-de-sac end. There will be no adverse impact on Robertson Road, as the traffic volumes from the proposal are low and the traffic does not need to travel the entire road.
The 9.2m carriageway and the proposal’s driveway does not impede two-way traffic flow and on street parking on Robertson Road.
The swept path analysis demonstrates that the proposed driveway crossing allows adequate right in, left out movements, with impact on only one on-street car parking space, which would occur even if the carriage between kerbs were 10m.
Compliant on-site parking is provided, with safe and compliant vehicular access and egress, with no adverse impact on the operation of Robertson Road.
The Pivotal Planning cl 4.6 identifies the element of the proposed development which causes the contravention to cl 6.13 of CBLEP, being the vehicular access. Mr Nehme also argued that if the centre-based child care facility did not have vehicular access onto Robertson Road (and relies on on-street parking), the development would not contravene cl 6.13.
The environmental planning grounds provided in the Pivotal Planning cl 4.6 to justify the contravention of cl 6.13(b) of CBLEP are summarised as:
The contravention facilitates the provision of safe and convenient off-street parking, which removes the need for vehicles to use the local road network for parking, loading and drop offs.
The provision of a driveway and vehicular access onto the site does not adversely impact on the safety of Robertson Road or the public domain. The vehicular access allows users of the centre-based child care facility to access and egress the site in a safe and convenient manner.
The extent of non-compliance to cl 6.13 of CBLEP is minor, as the roadway is 801mm-858mm below the 10m road carriageway width in cl 6.13. The minor variation does not inhibit the safe and efficient operation of the centre-based child care facility.
The development maintains consistency with the objectives of the R2 zone, particularly in relation to non-residential uses in the R2 zone. The proposal provides childcare services to meet the day-to-day needs of residents; the centre limits adverse impacts on adjoining properties in relation to overshadowing and privacy; the centre provides the required landscaping and deep soil zones; the centre accommodates the required parking rates and will not create an adverse impact on Robertson Road. As a result, the Pivotal Planning cl 4.6 concludes the proposal is in alignment with the objectives of the R2 zone and advances this as an environmental planning ground.
The environmental planning grounds are relevant to objective 1.3 (g) and (k) of the EPA Act relating to good design, amenity and proper construction and maintenance of built environments (s 1.3(g)), and the orderly and economic use and development of the land (s 1.3(k)).
Dellimanolis submits that there are sufficient environmental planning grounds in support of the cl 4.6 variation, including a comprehensive analysis of the traffic impacts of this development on the environment and the safety aspects of Robertson Road and there is no issue raised by the Council in respect of the traffic impact assessment (Ex 3 Statement of Facts and Contentions).
Mr Nehme outlines that the provision of vehicular access to the site is the better outcome achieved through applying flexibility to cl 6.13 of CBLEP. This is outlined in the oral evidence, as follows:
"IRELAND: And you don't include any reasoning in your clause 4.6 objection explaining why there is a better outcome from this development because it's being located on a cul-de-sac road, do you?
WITNESS NEHME: In terms of a better outcome, in terms of demonstrating the centre achieves the required solar - sorry, not solar access, vehicle access, to and from the site without compromising the efficiency of the road, the other matter which I think is important to imply flexibility is in the reading of that control. If vehicle access was not to be provided, we'd technically comply with that control.
IRELAND: But you can't have a childcare centre without vehicle access, can you?
WITNESS NEHME: Based on the wording of this clause, you can.
IRELAND: No. You can't have a childcare centre without vehicle access because would for example breach council's DCP requirements amongst other things for parking onsite. One parking space per four child.
WITNESS NEHME: That is a DCP requirement which can be varied. It is a guideline.
IRELAND: So in other words, you've identified a better outcome, have you, by assuming a contrary case of a childcare centre with no basement parking and no vehicular access, is that the counterfactual - you've engaged it?
WITNESS NEHME: Yes. So in reading of the clause in it's plain terms, if no vehicle access was provided, we've complied with that clause.
IRELAND: I suggest to you, you haven't approached clause 6.13 or indeed the objective in clause 4.6B being to achieve better outcomes from the flexibility in the way required by that objective, rather, you've regarded the better outcome as the ability to establish this development on this site. That's what you've regarded as the better result our outcome, isn't it?
WITNESS NEHME: No, the establishment of vehicle access to ensure parking is the flexibility and the better outcome.
IRELAND: You've regarded the establishment of this childcare centre in this location as the better outcome, I suggest to you.
WITNESS NEHME: No, the establishment of vehicle access to this childcare centre is the better outcome."
(Transcript 4 June 2026, pp 40-41 p.40 (15)-(49), p 41(1)-(8)).
The consent authority, or Court on appeal, must be satisfied that the Applicant has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of the CBLEP).
Dellimanolis relies on one of the common ways to establish whether compliance is unreasonable or unreasonable in the circumstances, through the “first test” from Preston CJ’s decision in Wehbe. The written request also seeks to discern the assumed objectives of cl 6.13 of CBLEP and demonstrate that the objectives of the development standard are achieved notwithstanding the non-compliance as per the reasoning in Jeffrey.
I accept Council’s submissions that the assumed objectives of cl 6.13 of CBLEP are wider than a consideration of vehicular and pedestrian safety and impact on local road networks. I accept that a consideration of residential amenity as it relates to childcare facility traffic is a relevant assumed objective and that a cul-de-sac and/or narrower carriageway (less than 10m) exacerbates the impacts of cars and traffic from a resident’s perspective. Council expresses that the traffic entering and exiting past the same houses (as the cul-de-sac is closed at one end) as an inconvenience impacting on amenity. I would also categorise the impact as an inconvenience or nuisance impacting on residential amenity for those properties between the Mark Street intersection and the site, as all the child care facility traffic must pass by these residential properties rather than be dispersed between two choices of entry, which would be available on a road other than a cul-de-sac. The alternate, as expressed by Council, is that drivers will travel to the end of the cul-de-sac and turn around in order to double back and exit Robertson Road via Mark Street, which I also accept as a possible outcome and an inconvenience or nuisance for the residents of Robertson Road.
As Dellimanolis has relied on one of the pathways in Wehbe, and I find that the assumed objectives of the standard have not been achieved, I do not accept the compliance with cl 6.13 is unreasonable or unnecessary in the circumstances.
Mr Nehme’s argues that the provision of vehicular access to the site is an improved environmental outcome that enlivens cl 6.13 of CBLEP. He considers the provision of vehicular access to the site is better than not providing vehicular access at all. Mr Nehme suggests it is possible to have a centre-based child care facility on a cul-de-sac with no vehicular access, and in that instance cl 6.13 would not be enlivened. Hence, the provision of the vehicular access to the site creates the issue in dispute (i.e. is cl 6.13 a development standard capable of relaxation via cl 4.6?), but Mr Nehme considers that providing vehicular access to the child care facility is an improved environmental outcome and an environmental planning ground to justify the cl 4.6 variation request.
I accept Council’s submissions that it is “nonsense to say that cl 6.13 distinguishes between childcare centres that have vehicular access and childcare centres that don’t and that it is not realistic to contemplate childcare centres that don’t have vehicular access” (Transcript 4 June 2026, p 58 (4)-(7)). I accept Council’s submissions, given that Canterbury Bankstown Development Control Plan 2023 (DCP 2023) has car parking rates for centre-based child care facilities of one car space per four children. It is highly unlikely, nigh impossible, that Council would permit on street parking as the sole means of meeting the parking needs of a commercially operated child care facility on a cul-de-sac. I consider it is a spurious environmental ground and a circular argument to advance that the provision of vehicular access to the site enlivens cl 6.13 of CBLEP (whereas a centre-based child care facility with no vehicular access from a cul-de-sac, does not), and then advance this as an environmental planning ground that justifies a cl 4.6 variation request.
Assisted by the traffic report of Hemanote (Ex L), Mr Nehme considers that the vehicular and pedestrian safety and impact on local road networks is a sufficient environmental ground to justify the cl 4.6 variation request. I do not agree that sufficient environmental grounds have been provided to justify the contravention of cl 6.13 of CBLEP. In particular, I accept Council’s position that a focus on the technical aspects of the traffic safety and road network capacity is not sufficient in this instance and that the impact on residential amenity requires consideration. I also accept Council’s submissions that no site-specific grounds are provided to justify why a centre-based child care facility on a cul-de-sac with a carriageway between kerbs of less than 10m is necessary and appropriate when compared to a development that complies with cl 6.13.
I therefore find that the cl 4.6 request has not adequately demonstrated that compliance with cl 6.13 of CBLEP is unreasonable and unnecessary in the circumstances and has not demonstrated sufficient environmental planning grounds to justify the contravention of cl 6.13.
The Court orders that:
The appeal is dismissed.
Development Application No DA-68/2025 for the demolition of an existing dwelling, relocation of sewer and construction of a two storey centre based child care facility for 65 children, over one level of basement car parking on land known as 8 Robertson Road, Chester Hill (Lot 2 DP444821) is refused.
The Exhibits, other than Exhibit B, E, K, P, Q, 12 and 13, are returned.
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Coversheet correction: added "appeal dismissed" to the Catchwords
Dellimanolis
Canterbury Bankstown Council
(2021) 250 LGERA 340
(1990) 71 LGERA 222
(2001) 116 LGERA 319
(2007) 156 LGERA 446