KDMC 22 Pty Ltd v Blacktown City Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Sydney Water Act 1994 (NSW), s 73
Education and Care Services National Regulations, regs 107, 108
Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 29
State Environmental Planning Policy (Housing) 2021, ss 147, 148, Sch 9
State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 7, ss 4.1AB, 4.1B, 4.3, 4.4, 4.6, 5.3, 6.1
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23

Texts Cited: Department of Planning, Industry and Environment, Apartment Design Guide (July 2015)
Department of Planning, Industry and Environment, Child Care Planning Guideline (September 2021)

Category: Principal judgment

Parties: KDMC 22 Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation: Counsel:
R Pellizzon (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
Colin Biggers & Paisley (Applicant)
Sparke Helmore (Respondent)

File Number(s): 2025/27438

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: Development comprising a residential flat building, childcare centre and basement carparking is proposed on a site at the intersection of Ayla Street and Reis Street, Tallawong.

2. The site on which development is proposed includes two parcels of land. The larger parcel is legally identified as Lot 4 in DP 1229154, and the smaller parcel that was formerly a road reserve, is Lot 21 in DP 1314467 (‘the former road reserve’).

3. The Applicant in these proceedings, KDMC 22 Pty Ltd (KDMC), lodged development application DA-24-00435 with Council on 17 June 2024, with written consent in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

4. As the DA was not otherwise determined, KDMC appealed its deemed refusal on 21 January 2025 under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

5. The matter was initially listed before me for hearing on 13-14 November 2025. However, on the eve of the hearing parties advised the Court that the contentions were resolved and so sought for the matter to be re-allocated for conciliation in accordance with s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), at which I presided.

6. Prior to the conciliation conference, the parties signed an agreement that was submitted to the Court on 12 November 2025, in accordance with s 34(10) of the LEC Act.

7. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by KDMC, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

8. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

State Environmental Planning Policy (Precincts – Central River City) 2021

10. The majority of the site is located within an area designated by Appendix 7 of the State Environmental Planning Policy (Precincts – Central River City) 2021 (Appendix 7 of the SEPP) to be R3 Medium Density Residential, in which the uses proposed are permitted with consent, where consistent with the following objectives for development in the zone:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To support the well being of the community, by enabling educational, recreational, community, and other activities where compatible with the amenity of a medium density residential environment.

11. The former road reserve is identified in the Appendix 7 of the SEPP to be zoned SP2 – Local Road, in which the objectives are:

• To provide for infrastructure and related uses.

• To prevent development that is not compatible with or that may detract from the provision of infrastructure.

12. The site is greater than the minimum lot size of 2,000m2 required by s 4.1AB(9) of Appendix 7 of the SEPP, and proposes a residential density greater than 25 dwellings per hectare as required by s 4.1B.

13. The proposed development exceeds the relevant height standard of 16m that applies to the site according to the relevant map at s 4.3 of Appendix 7 of the SEPP. A maximum height of 18.6m is proposed, and KDMC rely upon a written request prepared by Metris Urban Planning in accordance with s 4.6 of Appendix 7 of the SEPP, dated 3 November 2025.

14. The relevant elements of the proposal that exceed the height standard are tabulated in the written request at Table 1, otherwise summarised to include the lift overrun, the roof over the rooftop common open space and pergolas at the rooftop level, and visually depicted in Figure 10.

15. The written request asserts that compliance with the height standard is unreasonable or unnecessary because the proposed development is consistent with the objectives of the height standard non-compliance.

16. The objectives of the height standard are:

(a) to establish the maximum height of buildings for development on land within the Alex Avenue and Riverstone Precincts,

(b) to protect the amenity of adjoining development and land in terms of solar access to buildings and open space,

(c) to facilitate higher density development in and around the local centre, the neighbourhood centres and major transport routes while minimising impacts on adjacent residential, commercial and open space areas,

(d) to provide for a range of building heights in appropriate locations that provide a high quality urban form.

17. Consistency with the objectives is achieved for reasons summarised as follows:

18. Firstly, the maximum height of buildings standard is established, and the exceedance of that by operation of s 4.6 does not, of itself, diminish or contradict the establishment of that height.

19. Secondly, the objective to protect solar access amenity of adjoining development is achieved by the proposal conforming to the building setbacks required by the Apartment Design Guide, and by demonstrating a floor space ratio (FSR) that is less than the FSR permitted on the site. Furthermore, shadow diagrams demonstrate that the proposed shadows from the elements that exceed the height standard fall largely within the site until 3PM.

20. Thirdly, the exceedance is due to minor and discrete elements that provide communal amenity to residents so that higher density living is facilitated. Relatedly, the impacts of the higher density development are minimised in part by the setbacks that are achieved, and by virtue of the site being bound by streets on 3 sides to provide additional setback from adjacent areas.

21. Fourthly and finally, the objective to provide high quality urban form through a range of building heights is achieved, primarily, by considering the quality of the common open space, landscaping and quantum of car parking provided and by the majority of the proposed development complying with the height standard.

22. I am satisfied that compliance with the development standard is unreasonable or unnecessary pursuant to s 4.6(3)(a) of Appendix 7 of the SEPP because the development is substantially within the height standard but for those isolated elements depicted with Reduced Levels (RLs) on Figure 10 of the written request and because the areas of exceedance do not give rise to intensification of the development.

23. I am also satisfied that there are sufficient environmental planning grounds to justify the non-compliance for the reasons set out in the written request, summarised as follows:

24. The proposal predominantly complies with the height standard, but for those areas of exceedance that are limited in size and location within the site.

25. The exceedance is associated with elements that provide amenity to residents in a location that achieves good solar access without imposing unacceptable adverse impacts on surrounding development and the public domain.

26. The orientation of the proposed development permits a range of communal open space suited to summer and winter sun access, and where amenities for residents is made available.

27. As I am satisfied the height request demonstrates those matters required to be demonstrated at s 4.6(3) of Appendix 7 of the SEPP, I find the written request should be upheld.

28. According to the calculations contained within the architectural plans prepared by Architext, the proposed development complies with the maximum permitted floor space ratio (FSR) of 1.75:1 that applies to the site at s 4.4 of Appendix 7 of the SEPP.

29. As stated at [2], the site includes the former road reserve, which includes land zoned SP2. That land is within 30m of land zoned R3. Section 5.3 of Appendix 7 of the SEPP has the objective of permitting a use allowed on the other side of a zone boundary where that enables a more logical and appropriate development of the site and where that is compatible with the planning objectives and land uses for the adjoining zone. As development on the former road reserve is proposed to be primarily landscape use to the south-west of the site, I am satisfied that the development is not inconsistent with those objectives at [10] at [11] and that the carrying out of the development is desirable due to the compatible land use planning and infrastructure capacity of the area.

30. I am also satisfied that public utility infrastructure of a kind described at s 6.1 of Appendix 7 of the SEPP will be available to the site when required by reference to the following:

31. The realignment of Boundary Road has been completed by the Council, and includes stormwater infrastructure.

32. A Certificate of Compliance has been issued for Potable Water and Sewer by Sydney Water in accordance with s 73 of the Sydney Water Act 1994 (NSW).

33. A notice of arrangement for provision of High Voltage power has been issued by Endeavour Energy.

34. Agreed conditions of consent in respect of relevant approvals, the transfer of title for land that comprises the site to which services are required to be made available, and provisions as to costs for those services.

The design of residential apartment development

24. As the proposed development is residential apartment development, the Court is required by s 147 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) to consider the quality of the design of the development, evaluated in accordance with the design principles at Sch 9.

25. I am assisted in so doing by a statement dated 31 October 2025 and prepared in accordance with s 29 of the EPA Regulation that attests Mr Victor Alcami (Arch Reg No. 9785) directed the design of the proposal, and sets out the means by which the design principles have been applied in the proposed development, and how the objectives in Pts 3 and 4 of the Apartment Design Guide are addressed.

26. On the basis of the statement at [28], I am also satisfied the development as proposed meets the requirements set out in s 148 of the Housing SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

27. I accept the architectural plans demonstrate compliance with regs 107 and 108 of the Education and Care Services National Regulations and so concurrence of the Regulatory Authority for the purpose of s 3.22 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Childcare SEPP) is not required.

28. The Child Care Planning Guideline published by the Department of Planning, Industry and Environment, dated September 2021 (the Guidelines) are a matter for the consent authority, or the Court, to consider to the extent relevant according to s 3.23 of Childcare SEPP.

29. On the basis of the Certification and Assessment for a New Child Care Centre prepared by Mr Victor Alcami dated 25 June 2025, I accept the proposed development is consistent with the Guidelines as are relevant to the proposal that must be considered in accordance with 3.23 of the Childcare SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

30. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP).

31. On the basis of the Stage 2 Detailed Site Investigation (DSI) Contamination Assessment prepared by CEC Geotechnical Pty Ltd dated 15 January 2024 that records results from twenty discrete soil samples collected from 11 sampling locations, and the recommendations contained therein that are cited in the agreed conditions of consent at Condition 7.1.2, I am satisfied the site can be made suitable, following remediation, for the purpose for which development is proposed to be carried out.

State Environmental Planning Policy (Sustainable Buildings) 2022

32. The application is accompanied by a BASIX certificate for 50 dwellings (Cert No. 1729820M_04 prepared by Building & Energy Consultants Australia and dated 11 September 2025) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

33. A NABERS assessment prepared by OP&C dated 7 March 2024 quantifies the embodied emissions such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

34. 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.

35. 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.

Orders

36. The Court orders that:

37. The Applicant’s written request, pursuant to s 4.6 of Appendix 7 Alex Avenue and Riverstone Precincts Plan 2010 to the State Environmental Planning Policy (Precincts—Central River City) 2021 (AARPP), seeking to vary the development standard for height of buildings as set out at s 4.3 of AARPP, is upheld.

38. The appeal is upheld.

39. Development Consent is granted to Development Application No. DA-24-00435 for the consolidation of land, construction of a 5-storey residential apartment building containing residential apartments, basement car parking, childcare centre at ground level, external landscaping, roof-level common open space, public domain and strata subdivision at 2 Ayla Street, 40 Reis Street, Tallawong NSW, being Lot 4 DP 1229154, and the adjacent road reserve within Boundary Road which is proposed Lot 21, subject to the conditions in Annexure 'A'.

T Horton

Commissioner of the Court

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Annexure A (230 KB, pdf)