Kingswood Stafford Street Pty Ltd v Penrith City Council

Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

Category: Principal judgment

Parties: Kingswood Stafford Street Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
A Kleiss (Solicitor) (Respondent)
Solicitors:
Macpherson Kelley (Applicant)
Penrith City Council (Respondent)

File Number(s): 2025/279944

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the deemed refusal of DA25/0352 for the demolition of existing structures, tree removal and construction of a two storey, 130 place child care centre with basement parking at 55 Stafford Street, Kingswood.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 26 November 2025. I presided over the conciliation conference. On 16 December 2025, the parties submitted a s 34 agreement.

3. The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending DA25/0352 in accordance with the documents listed below:

| Drawing No**.** and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No. A000 Issue F | Cover Page | Janssen Designs | 27 November 2025 | | Drawing No. A001 Issue F | Calculations and LEP Controls | 27 November 2025 | | Drawing No. A002 Issue F | Site Context Plan | 27 November 2025 | | Drawing No. A003 Issue F | Demolition Plan | 27 November 2025 | | Drawing No. A004 Issue F | Site Analysis Plan | 27 November 2025 | | Drawing No. A005 Issue F | Basement Plan | 27 November 2025 | | Drawing No. A006 Issue F | Ground Floor Plan | 27 November 2025 | | Drawing No. A007 Issue F | First Floor Plan | 27 November 2025 | | Drawing No. A008 Issue F | Roof Plan | 27 November 2025 | | Drawing No. A009 Issue F | Elevations 1 | 27 November 2025 | | Drawing No. A010 Issue F | Elevations 2 | 27 November 2025 | | Drawing No. A011 Issue F | Section | 27 November 2025 | | Drawing No. A011B Issue F | Sections 2 | 27 November 2025 | | Drawing No. A011C Issue F | Sections 3 | 27 November 2025 | | Drawing No. A011D Issue F | Sections 4 | 27 November 2025 | | Drawing No. A012 Issue F | Perspective Images 1 | 27 November 2025 | | Drawing No. A013 Issue F | Perspective Images 2 | 27 November 2025 | | Drawing No. A014 Issue F | Perspective Images 3 | 27 November 2025 | | Drawing No. A015 Issue F | Acoustic Barrier Detail - Ground Floor Plan | 27 November 2025 | | Drawing No. A016 Issue F | Acoustic Barrier Detail – First Floor Plan | 27 November 2025 | | Drawing No. A017 Issue F | Gross Floor Area Calculation Plan | 27 November 2025 | | Drawing No. A018 Issue F | Open Space Calculation Diagram | 27 November 2025 | | Drawing No. A019 Issue F | Shadow Diagram – 9am June 21st | 27 November 2025 | | Drawing No. A020 Issue F | Shadow Diagram – 12noon June 21st | 27 November 2025 | | Drawing No. A021 Issue F | Shadow Diagram – 3pm June 21st | 27 November 2025 | | Drawing No. A022 Issue F | Solar Access Diagram – 10am June 21st | 27 November 2025 | | Drawing No. A023 Issue F | Solar Access Diagram – 11am June 21st | 27 November 2025 | | Drawing No. A024 Issue F | Solar Access Diagram – 12 noon June 21st | 27 November 2025 | | Drawing No. A025 Issue F | Solar Access Diagram – 1pm June 21st | 27 November 2025 | | Drawing No. A026 Issue F | Covered Outdoor Area Diagram | 27 November 2025 | | Drawing No. A027 Issue F | Emergency Evacuation Diagram | 27 November 2025 | | Drawing No. A028 Issue F | Kitchen Details | 27 November 2025 | | Drawing No. A029 Issue F | Colour and Finishes Schedule | 27 November 2025 | | Drawing No. A030 Issue F | Outdoor Play Area Calculation Diagram | 27 November 2025 | | Drawing No. A031 Issue F | Site Coverage Area Calculation Plan | 27 November 2025 | | Landscape Plans | | 2 | Drawing No. 01 Issue G | Landscape Concept Ground + First Floor | Outside In Design Group | 3 December 2025 | | Drawing No. 02 Issue G | Plant Schedule + Typical Details | 3 December 2025 | | Drawing No. L - 03 Issue G | Eastern Boundary Deep Soil Section AA | 3 December 2025 | | Drawing No. L - 04 Issue G | Tree Shadow Study 22 Dec - Summer Solstice | 3 December 2025 | | Drawing No. L - 05 Issue G | Tree Shadow Study 30 June - Winter Solstice | 3 December 2025 | | Stormwater Plans | | 3 | Drawing No. S100 Rev. 03 | Cover Sheet | Deboke Engineering Consultants | 2 December 2025 | | Drawing No. S101 Rev. 03 | Specifications Sheet | 2 December 2025 | | Drawing No. S200 Rev. 03 | Basement Plan | 2 December 2025 | | Drawing No. S201 Rev. 03 | Ground Floor Plan 1 of 2 | 2 December 2025 | | Drawing No. S202 Rev. 03 | Ground Floor Plan 2 of 2 | 2 December 2025 | | Drawing No. S203 Rev. 03 | First Floor Plan | 2 December 2025 | | Drawing No. S204 Rev. 03 | Roof Plan | 2 December 2025 | | Drawing No. S300 Rev. 03 | Details Sheet 1 of 4 | 2 December 2025 | | Drawing No. S301 Rev. 03 | Details Sheet 2 of 4 | 2 December 2025 | | Drawing No. S302 Rev. 03 | Details Sheet 3 of 4 | 2 December 2025 | | Drawing No. S303 Rev. 03 | Details Sheet 4 of 4 | 2 December 2025 | | Drawing No. S400 Rev. 03 | Erosion and Sediment Control Plan | 2 December 2025 | | Drawing No. S500 Rev. 03 | Easement Calculation | 2 December 2025 | | Drawing No. S600 Rev. 03 | Bulk Earthworks Plan 1 of 2 | 2 December 2025 | | Drawing No. S601 Rev. 03 | Bulk Earthworks Plan 2 of 2 | 2 December 2025 | | Documents | | 4 | Updated Parking & Traffic Impact Assessment (Ref. 25-053-REP-6) | Stanbury Traffic Planning | 4 December 2025 | | 5 | Car Park Management Plan (Ref. 25-053-CPMP-4) | Stanbury Traffic Planning | 4 December 2025 | | 6 | Drawing No. 25-053-02-V10, Sheet 01 / 07 – Car Park Compliance Review – Basement Concept Layout | Stanbury Traffic Planning | 4 December 2025 | | Drawing No. 25-053-02-V10, Sheet 02 / 07 – Car Park Compliance Review – Basement Swept Path Assessment | 4 December 2025 | | Drawing No. 25-053-02-V10, Sheet 03 / 07 – Car Park Compliance Review – Basement Swept Path Assessment | 4 December 2025 | | Drawing No. 25-053-02-V10, Sheet 04 / 07 – Car Park Compliance Review – Basement Swept Path Assessment | 4 December 2025 | | Drawing No. 25-053-02-V10, Sheet 05 / 07 – Car Park Compliance Review – Basement Swept Path Assessment | 4 December 2025 | | Drawing No. 25-053-02-V10, Sheet 06 / 07 – Car Park Compliance Review – Main Access Ramp Vertical Clearance Assessment | 4 December 2025 | | Drawing No. 25-053-02-V10, Sheet 07 / 07 – Car Park Compliance Review – Main Access Ramp Vertical Clearance Assessment | 4 December 2025 | | 7 | ESD Assessment Report (Ref. 25120092) | Senica Consultancy Group | 4 December 2025 | | 8 | Environmental Noise Impact Assessment (Report No. 7655-7.1R Rev B) | Day Design Pty Ltd | 5 December 2025 | | 9 | Arboricultural Impact Assessment and Tree Management Plan (Version 3) | Horticultural Management Services | 20 November 2025 | | 10 | Plan of Management | Early Education Solutions | 3 December 2025 | | 11 | Waste Management Plan (Ref. 25NL099 – WMP4, Issue No.4) | Loka Consulting Engineers | 20 November 2025 | | 12 | Service Confirmation Letter | Waste-Free | undated | | 13 | Service Confirmation Letter | Waste Clear | 20 November 2025 | | 14 | Unencumbered Outdoor Space | Think Planners | 21 November 2025 | | 15 | NQF Assessment | Think Planners | 9 December 2025 |

4. Various changes have been made to the proposal, including a reduction in four child care places.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60]-[65].

8. I have carried out the required jurisdictional check: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]. For the reasons set out below, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions as required by s 34(3) of the LEC Act.

9. I am satisfied that owner’s consent has been provided for the DA, as the Applicant is the registered proprietor as set out at paragraph 6 of the jurisdictional statement and Tab 2 of the Class 1 Application.

10. The Respondent notified the DA between 9 June 2025 to 22 June 2025. Seven submissions were received. A number of concerned residents spoke at the beginning of the conciliation conference. As the parties have reached agreement, the Court is not able to consider the merits of the DA, only if the Court has power to issue a consent that is acceptable to both parties. I accept that the parties have adequately considered the concerns raised in the objections.

Penrith Local Environmental Plan 2010

11. The subject site is zoned MU1 Mixed Use, where the proposed use for a centre-based child care facility is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

12. Clause 2.7 demolition permits demolition with consent, as sought by the amended DA.

13. Clause 4.3 height of buildings applies and allows a maximum of 12m. The proposal complies, at 9.95m at the highest point, as demonstrated by the architectural plans.

14. Clause 4.4 floor space ratio (FSR) permits a maximum of 2:1. The proposal is well underneath the maximum FSR, at 0.45:1.

15. Clause 7.1 earthworks applies to the site. The DA is accompanied by Stormwater Plans prepared by Deboke Engineering Consultants dated 2 December 2025, Preliminary Site Investigation Report prepared by GCA dated 28 November 2022 (PSI) and Geotechnical Investigation Report prepared by CEC Geotechnical dated 26 March 2024 (Geotechnical Report) that adequately address the provisions of cl 7.1. The jurisdictional statement details that the provisions have been considered and met, which I accept.

16. Clause 7.4 sustainable development applies to the proposal. On the basis of the ESD Assessment Report prepared by Senica, Landscape Plans prepared by Outside in Design Group dated 3 December 2025, Updated Parking & Traffic Impact Assessment prepared by Stanbury Traffic Planning dated 4 December 2025 and Waste Management Plan prepared by Loka Consulting dated 20 November 2025 and the parties detailed submissions at paragraph 31-32 of the jurisdictional statement, I accept that the principles of sustainability have been addressed.

17. Clause 7.6 salinity applies to the proposal. On the basis of the Geotechnical Report which concludes that the soils are non-aggressive towards the proposed materials and that the proposed works will not impact the subject site or adjoining sites, I accept that the provisions have been satisfied.

18. Clause 7.7 servicing applies to the proposal. As detailed in the jurisdictional statement, all services are currently provided and will continue. Vehicular access is safely provided by the amended DA and the proposed stormwater works will utilise the existing inter-allotment easement to drain water.

19. Clause 7.30 urban heat applies to the site. On the basis of the ESD Report, Statement of Environmental Effects and NQF Assessment both prepared by Think Planners with various dates (SEE) and jurisdictional statement, I accept that the planning and design measures have been incorporated to reduce the urban heat island effect. Such measures include passive cooling through the building’s design, appropriate building materials and extent of proposed tree canopy.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

20. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the site is located in the Hawkesbury-Nepean Catchment. I accept the parties’ agreement the provisions have been satisfied on the basis of the:

21. Stormwater Plans (including corresponding catchment modelling and reuse of water on site).

22. PSI.

23. Waste Management Plan.

24. Geotechnical Report.

25. Jurisdictional Statement (paragraphs 45-44).

26. I accept the parties’ agreement that ss 6.6, 6.7, 6.8, 6.9 are satisfied in that there will be a neutral or beneficial impact on water quality and that there will be minimal or no impacts on natural waterbodies, aquatic ecology, wetlands and recreational areas.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site in relation to contamination. The amended DA is accompanied by a PSI that details the site is suitable for the proposed works, subject to recommendations that have been included in the conditions of consent. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

23. Chapter 3 Educational establishments and childcare facilities of SEPP TI applies to the proposed development.

24. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 and 3.26 of SEPP TI as shown on the architectural plans and outlined in the jurisdictional statement. Further, based on the agreed submissions from the parties in the jurisdictional statement and SEE, I have considered the provisions of ss 3.22, 3.23, 3.26, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.

Heads of consideration

25. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

26. 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.

27. 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.

28. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

29. The Court orders:

30. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $12,000, payable within 28 days of receiving a tax invoice for payment.

31. The appeal is upheld.

32. Development Application No DA25/0352, as amended, for the demolition of existing structures, tree removal, and construction of a two-storey 126 place centre based child care facility with associated site works at 55 Stafford Street, Kingswood, is determined by the grant of development consent subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

Annexure A (342 KB, pdf)

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