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[2025] NSWLEC 1854
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-04
Targett 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: Eschol Park Holdings Pty Ltd v Campbelltown City Council [2025] NSWLEC 1854
Hearing dates: Conciliation Conference 25 November 2025
Date of orders: 4 December 2025
Decision date: 04 December 2025
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Application 2360/2023/DA-C, as amended, for internal and external alterations and additions to Eschol Park House including partial demolition works, tree removal, associated civil works, provision of parking, driveway reconfiguration and landscaping works, and change of use to a 124 place child care facility at 14 Eschol Park Drive, Eschol Park NSW 2558, is determined by the grant of development consent subject to the conditions at Annexure A.
Catchwords: APPEAL — development application — childcare centre — conciliation conference — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.10, 8.15
Land and Environment Court Act 1979 (NSW), ss 17, 34
Campbelltown Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 7.1, 7.4, 7.10
Education and Care Services National Regulations 2011, cll 107, 108
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.25, 3.26
Texts Cited: Campbelltown Development Control Plan 2015
Child Care Planning Guideline 2021
Category: Principal judgment
Parties: Eschol Park Holdings Pty Ltd (Applicant)
Campbelltown City Council (Respondent)
Representation: Counsel:
B Salon (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)
Solicitors:
The Law Salon (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2025/156426
Publication restriction: Nil
This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s refusal of the applicant’s Development Application No 2360/2023/DA-C (Development Application) seeking consent for the use of the land and the existing building located at “Eschol Park House” as a centre based child care facility and food and drink premises on land legally described as Lot 22 in Deposited Plan 545718 and known 14 Eschol Park Drive, Eschol Park (Subject Land).
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).
The Development Application was lodged with the respondent on 21 July 2023.
The Development Application was publicly notified between 15 August and 14 September 2023. Three objections were received during the notification period, with two further submissions being received outside of the notification period.
Following multiple requests for, and the provision of, information, the Campbelltown Local Planning Panel refused the Development Application on 27 November 2024.
On 23 April 2025, the applicant commenced proceedings in relation to the refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.
The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was terminated on 21 August 2025. The matter was then set down for hearing.
On 25 September 2025, the applicant was granted leave to amend its application (September Amendments), to amongst other things:
remove the food and drink premises (café) component from the application;
reduce the child care places from 129 to 123 (although I note the final plans depict 124 places which has been agreed to by the respondent);
provide an addendum Traffic and Parking Impact Assessment prepared by McLaren Traffic Engineering dated 9 September 2025 (Addendum Traffic Report);
provide a revised Heritage Impact Statement prepared by Architectural Projects dated September 2024 (Revised Heritage Impact Statement);
update the architectural and landscaping plans;
provide a revised Statement of Environmental effects prepared by Michael Brown Planning Strategies dated 15 September 2025 (Supplementary SEE); and
provide amended Stormwater Drawings prepared by Rafeletos Zanuttini dated 16 September 2025, specifically Sheet 1 and Sheet 2 (Amended Stormwater Drawings).
Prior to the hearing, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement reached is for consent to be granted to the Development Application as amended by the September Amendments and further modified, subject to conditions of consent (Amended Development Application). The signed agreement is supported by an agreed jurisdictional statement.
The agreed final amendments primarily include amendments to parking.
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.
Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the proposed development as the Subject Land is located within the Georges River catchment. Part 6.2 of Ch 6 sets out various matters in relation to which the consent authority must be satisfied, or must consider, before granting development consent.
The parties submit, and I accept, that:
the Amended Development Application will not have any detrimental impact on the environmental quality of the Georges River catchment;
post development flows are equal or less than pre-development flows; and
stormwater quality post development is the same or improved from pre-development; and
the matters for consideration and satisfaction under Pt 6.2 have been addressed in the Stormwater Plans prepared by Rafeletos Zanuttini dated 16 September 2025 (see Exhibit BMS-1, tab 13) (Stormwater Plans).
Section 3.23 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) relevantly provides that before determining a development application for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline 2021 (Guidelines) in relation to the proposed development.
The proposed development’s compliance with the Guidelines has been addressed in the Supplementary SEE (see pp 17-34).
In determining the Amended Development Application, I confirm that I have taken into consideration the applicable provisions of the Guidelines in relation to the proposed development for the purpose of s 3.23 of the TI SEPP.
The parties agree that s 3.25 of the TI SEPP does not apply to the proposal due to cl 4.4(2A) of the Campbelltown Local Environmental Plan 2015 (CLEP) setting a maximum floor space ratio (FSR) for centre-based child care facilities on the Subject Land, being 0.55:1.
Section 3.26 of the TI SEPP sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) provides the requirements for indoor and outdoor space.
The parties agree that the Amended Development Application provides at least 3.25m2 of unencumbered indoor play space and at least 7m2 of unencumbered outdoor play space per child (see pp 33 and 35 of the Supplementary SEE) which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Services National Regulations.
In determining the Amended Development Application, I am satisfied that the matters outlined in Ch 3 of the TI SEPP have been considered and addressed.
• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To enable development for purposes other than residential only if that development is compatible with the character of the living area and is of a domestic scale.
• To minimise overshadowing and ensure a desired level of solar access to all properties.
• To facilitate diverse and sustainable means of access and movement.
The parties agree that the Amended Development Application is consistent with the objectives of the R2 zone insofar as they are relevant.
The parties agree, and I accept, that the height standard in cl 4.3 of the CLEP is not relevant to the Amended Development Application as the proposal does not propose any changes in height to the existing building other than by partial demolition.
As set out above, cl 4.4(2A) of the CLEP provides a maximum FSR for the proposed development at 0.55:1 and the parties agree that the proposal complies with this standard. Further, the parties agree that the proposal actually reduces the existing FSR on the Subject Land.
For the purpose of cl 5.10 of the CLEP relating to heritage, the parties agree that the Subject Land is listed as an item of local heritage under the CLEP. The Amended Development Application includes a Statement of Heritage Impact prepared by Architectural Projects dated September 2025 (see Exhibit BMS-1, tab 4) which relevantly concludes:
given the heritage significance of the building and its condition, options for retention and adaptive re-use of the building with changes to non-original fabric are most appropriate; and
the amended plans retain the original buildings of high significance and moderate significance.
Therefore, in determining the Amended Development Application, I confirm that I have considered the effect of the proposed development on the heritage significance of the item concerned and am satisfied that development consent can be granted having regard to cl 5.10 of the CLEP, having regard to the:
Statement of Heritage Impact;
Heritage Landscape Analysis prepared by Architectural Projects dated August 2022 (Class 1 Application, tab 10)
Heritage Interpretation Strategy prepared by Architectural Projects dated January 2023 (Class 1 Application, tab 11);
Heritage Conservation Management Plan prepared by Architectural Projects dated August 2022 (Class 1 Application, tab 12);
Heritage Conservations Works and Management Plan prepared by Architectural Projects dated June 2022 (Class 1 Application, tab 13);
Aboriginal Heritage Due Diligence Report prepared by Kayandel Archaeological Services dated August 2025 (Exhibit BMS-1, tab 11); and
Archaeological Assessment prepared by Kayandel Archaeological Services dated August 2025 (Exhibit BMS-1, tab 12).
Pursuant to cl 7.1 of the CLEP relating to earthworks, the consent authority must consider specified matters before granting development consent. The parties agree, and I accept, that the matters listed in cl 7.1(3) of the CLEP have been adequately considered, having regard to the matters set out in the Stormwater Plans, Jurisdictional Statement, and Agreed Conditions.
Pursuant to cl 7.4 of the CLEP relating to salinity, the consent authority must be satisfied of, and consider, specified matters before granting development consent. The parties agree, and I accept, that the:
proposal is unlikely to be affected by salinity given the elevation of the Subject Land as detailed in the Statement of Environmental Effects prepared by Michael Brown Planning Strategies dated June 2023 (see Class 1 Application, tab 3, p 65) (SEE); and
the development is designed, sited and will be managed to avoid any significant adverse environmental impact.
In determining the Amended Development application, I confirm that I have considered the matters in cl 7.4(3) and am satisfied of the matters in cl 7.4(4) of the CLEP.
Pursuant to cl 7.10 of the CLEP relating to essential services, development consent must not be granted to development unless the consent authority is satisfied that any of the services that are essential for the development are available or adequate arrangements have been made to make them available when required. The parties agree, and I accept, that the Subject Land is in an established residential area and has an existing building that is already serviced by the essential services listed in cl 7.10 of the CLEP.
The matters listed in s 4.15(1)(b), (c) and (e) are considered generally in the Supplementary SEE (see pp 49-53) and there is no impediment to the approval of the Amended Development Application having regard to those matters.
In respect of s 4.15(1)(d) of the EPA Act, as set out above at [4], the Development Application was publicly notified between 15 August and 14 September 2023. Three objections were received during the notification period, with two further submissions being received outside of the notification period.
The Court also heard from one resident at the commencement of the s 34 conference on 25 November 2025 who raised concerns regarding traffic generation, parking, and vehicular conflict between the existing and proposed child care centre.
In respect of these concerns, I note that the parties agree, and I accept that:
the proposal complies with the relevant parking requirements set out in the CLEP;
manoeuvring concerns have been addressed via the removal of the food and drink premises component of the proposal;
the potential for vehicular conflict between the two child care centres is low given the existence of a median isle; and
the Addendum Traffic Report has assessed the traffic and parking impacts and concluded that there will be no adverse impacts as a result of the proposal.
Therefore, I am satisfied that the written and oral submissions received have been taken into consideration and addressed in the assessment and determination of the Amended Development Application.
As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The Court notes that:
The respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the applicant amending Development Application 2360/2023/DA-C in accordance with the following documents:
| Item | Date | | Amended Architectural Drawings (Project 19-315), prepared by PR-A, Rev J: - A-101, Site Plan / Site Analysis Plan; - A-102, Existing Building Plans; - A-103, Demolition Plan; - A-104, Cut and Fill Plan; - A-201, Lower Ground Plans; - A-202, Ground Floor Plans; - A-203, Level 1 Plans; - A-301, Elevations; - A-302, Elevations; - A-401, Sections; - A-501, Area Calculations; and - A-601, Shadow Diagrams | 17 Oct 2025 | | Amended Landscape Drawings (Job: 200407), prepared by Dapple Designs, Rev H: - Landscape Plan, Sheet 1 of 2 - Plant List and Details, Sheet 2 of 2 | 14 Nov 2025 | | Amended Cost Report, prepared by Peter Roppolo | 28 Oct 2025 |
The Court orders that:
The appeal is upheld.
Development Application 2360/2023/DA-C, as amended, for internal and external alterations and additions to Eschol Park House including partial demolition works, tree removal, associated civil works, provision of parking, driveway reconfiguration and landscaping works, and change of use to a 124 place child care facility at 14 Eschol Park Drive, Eschol Park NSW 2558, is determined by the grant of development consent subject to the conditions at Annexure A.
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Eschol Park Holdings Pty Ltd
Campbelltown City Council [2025] NSWLEC 1854