La Luce 78 Pty Ltd V The Hills Shire Council

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

Category: Principal judgment

Parties: La Luce 78 Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation: Counsel:
A Johnson (Solicitor)(Applicant)
K Law (Solicitor)(Respondent)
Solicitors:
Miller & Prince Lawyers (Applicant)
Matthews Folbigg Lawyers (Respondent)

File Number(s): 2025/167195

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by La Luce 78 Pty Ltd (the Applicant) against the deemed refusal of Development Application No. 879/2025/HA, lodged with The Hills Shire Council (the Respondent), on 29 November 2024.

2. The development application seeks development consent for the demolition of existing structures, removal of trees, and the construction of a two-storey, 100 place, centre based childcare facility and associated works at 9 Cook Street, Baulkham Hills NSW 2153. The proposed development is on land legally described as Lot B in Deposited Plan 372086.

3. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the of the Land and Environment Court Act 1979 (NSW) (the LEC Act). The conciliation conference commenced on 8 September 2025.

4. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to agreed outcomes and conditions.

5. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

8. Pursuant to The Hills Local Environmental Plan 2019 (THLEP 2019), the subject site is zoned R3 Medium Density Residential. The proposed demolition of existing structures, removal of trees, and the construction of a two-storey 100 place centre based childcare facility, and associated works, are permissible in this zone. Regard has been given to the R3 zone objectives in determining the application.

9. Pursuant to cl 4.3 of the THLEP 2019, the maximum building height permissible for the site is 9m. There is no contention in respect to building height.

10. Pursuant to cl 7.2 of the THLEP 2019 ‘Earthworks’, the consent authority is required to be satisfied that the matters outlined in the clause have been considered. The extent of the earthworks proposed by the development relates to the excavation for the basement, which is detailed on the Bulk Earthworks Plans, Drawing No. S400 and S401, prepared by Deboke Engineering Consultants and dated 2 October 2025.

11. In accordance with the Statement of Environmental Effects (SEE) prepared by Think Planners Pty Ltd, dated 20 November 2024, and Stormwater Drainage Plans:

(a) the proposed development will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability in the area. (b) the proposed excavation is consistent with the Site’s context and is in accordance with the Council’s current and proposed planning strategies.

5. The parties have agreed conditions of development consent that seek to manage the destination of any excavated material. The parties agree that it is unlikely that excavation will lead to the disturbance of relics as the Site is not known to be situated within an area of archaeological significance. The earthworks are unlikely to impact on any watercourse, drinking water catchment or environmentally sensitive areas due to the location of the Site. I am satisfied that the requirements of cl 7.2 of THLEP 2019 have been considered.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. The site is located within the Sydney Harbour Catchment pursuant to Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP). The parties have undertaken the required assessments in respect to the proposed development including preparing and assessing the following documentation:

(a) The SEE. (b) Stormwater Drainage Plans prepared by Deboke Engineering Consultants, dated 1 October 2025.

2. The parties agree that the assessments demonstrate that the proposed development is satisfactory. I agree that the required matters have been considered.

State Environmental Planning Policy (Transport and Infrastructure) 2021

1. Chapter 2 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) provides a consistent planning regime for infrastructure and the provision of services across the State, along with providing for consultation with relevant public authorities during the assessment process.
2. Section 2.48 applies to the Site as the amended DA involves penetration of ground within 2m of an underground electricity power line. s 2.48(2) requires that the Respondent must notify the electricity supply authority for the area in which the development is to be carried out, being Endeavour Energy, inviting comments about potential safety risks, and take into consideration any response to the notice. Endeavour Energy has been notified and does not object to the proposed development.
3. Section 3.23 of the TI SEPP requires a consent authority to consider the Child Care Planning Guideline when determining a development application. The matters for consideration under the Child Care Planning Guideline have been addressed in the SEE which includes a table at page 29 - 34 demonstrating how the amended DA complies with the Guideline.
4. Section 3.26 of the TI SEPP sets out non-discretionary development standards for the purpose of s 4.15 of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, regs 107 or 108 of the Education and Care Services National Regulations provides the requirements for indoor or outdoor space. The proposed development provides 327m² of unencumbered indoor play space and 700m² of unencumbered outdoor play space per child which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations.
5. The parties agree that the matters for consideration under the Child Care Planning Guideline have been addressed in the SEE which includes a table at page 34 - 58 demonstrating how the amended DA complies with the Guideline.
6. The parties also agree, and I am satisfied, that the required matters in the TI SEPP have been assessed and that the proposal is satisfactory in this regard.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Chapter 4 (Remediation of Land) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) also applies to the Site. Section 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated. If it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.
2. The DA was accompanied by a Preliminary Site Investigation Report (the PSI) prepared by Environmental Consulting Services Pty Ltd dated 6 November 2024 which confirms that the Site is considered suitable for the proposed redevelopment and the sensitive land use provided that the following recommendations in the PSI are implemented:

(a) A hazardous building materials survey should be undertaken by a suitably qualified consultant prior to the demolition of buildings. Asbestos containing material (ACM) identified during the building survey, should be dismantled by an appropriately licensed asbestos removalist in such a manner that does not impact the ground surface; (b) The preparation of a waste classifications for any material to be excavated and disposed of off-site. The waste classifications must be prepared in accordance with EPA guidelines; and (c) All waste must be managed and disposed of in accordance with current guidelines and regulations.

3. The parties agree that the proposed conditions 54, 55, 56 and 78, in Annexure A, ensure that the above recommendations are implemented. I am satisfied that the requirements for consideration of the RH SEPP have been met.

4. The proposal was notified from 3 December 2024 and 15 January 2025. 49 submissions were received. The respondent notes that the issues raised, where appropriate, have been particularised in the statement of facts and contentions. They also have been adequately addressed in the amended development application and/or the proposed conditions of consent at Annexure ‘A’.

5. 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’ agreement.

6. I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court notes that:

8. The Hills Shire Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending the Development Application No. 879/2025/HA in accordance with the following amended plans:

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No. 00, Revision F | Cover Page | Baini Design | 30 September 2025 | | Drawing No. 01, Revision F | Compliance Table, Location Plan | | Drawing No. 02, Revision F | Site Context Plan | | Drawing No. 03, Revision F | Site Analysis Plan | | Drawing No. 04, Revision F | 9am Shadow Diagram & Calcs. | | Drawing No. 05, Revision F | 10am Shadow Diagram & Calcs. | | Drawing No. 06, Revision F | 11am Shadow Diagram & Calcs. | | Drawing No. 07, Revision F | 12pm Shadow Diagram & Calcs. | | Drawing No. 08, Revision F | 1pm Shadow Diagram & Calcs. | | Drawing No. 09, Revision F | 2pm Shadow Diagram & Calcs. | | Drawing No. 10, Revision F | 3pm Shadow Diagram & Calcs. | | Drawing No. 11, Revision F | Tree Management Plan - Basement Floor | | Drawing No. 12, Revision F | Tree Management Plan - Ground Floor | | Drawing No. 13, Revision F | Demolition Plan | | Drawing No. 14, Revision F | Site Plan | | Drawing No. 15, Revision F | Basement Floor Plan | | Drawing No. 16, Revision F | Ground Floor Plan | | Drawing No. 17, Revision F | First Floor Plan | | Drawing No. 18, Revision F | Roof Plan | | Drawing No. 19, Revision F | Elevations 01 | | Drawing No. 20, Revision F | Elevations 02 | | Drawing No. 21, Revision F | Sections 01 | | Drawing No. 22, Revision F | Sections 02 | | Drawing No. 23, Revision F | Schedule of Finishes | | Drawing No. 24, Revision F | Callout Elevations | | Drawing No. 25, Revision F | Kitchen & Laundry Details | | Drawing No. 26, Revision F | Typical Nappy Change | | Drawing No. 27, Revision F | Typical Bottle Prep Detail | | Drawing No. 28, Revision F | Typical Craft Bench Detail | | Drawing No. 29, Revision F | Calc. Plan - Play Areas & FSR - GF | | Drawing No. 30, Revision F | Calc. Plan - Play Areas & FSR - FF | | Drawing No. 31, Revision F | Calc. Plan - Landscape Area - GF | | Drawing No. 32, Revision F | Calc. Plan - Landscape Area - FF | | Drawing No. 33, Revision F | Calc. Plan - 0-2 Indoor Play Area | | Drawing No. 34, Revision F | Calc. Plan - 2-3 Indoor Play Area | | Drawing No. 35, Revision F | Calc. Plan - 3-5 Indoor Play Area | | Drawing No. 36, Revision F | Solar Access Plan - 11am | | Drawing No. 37, Revision F | Solar Access Plan - 12pm | | Drawing No. 38. Revision F | Solar Access Plan - 1pm | | Drawing No. 39, Revision F | Shading Diagram Plans | | Drawing No. 40, Revision F | Fencing Details - Ground Floor | | Drawing No. 41, Revision F | Fencing Detail - First Floor | | Drawing No. 42, Revision F | Streetscape Elevation | | Drawing No. 43, Revision F | 3D Perspectives | | Drawing No. 44, Revision F | Accessible Details - Basement Floor | | Drawing No. 45, Revision F | Accessible Details - Ground Floor | | Drawing No. 46, Revision F | Accessible Details - First Floor | | Landscape Plans | | 2 | Drawing No. 01, Revision D | Landscape Concept Ground & First Floor | Outside In Design Group Pty Ltd | 01 October 2025 | | Drawing No. L - 02, Revision D | Plant Schedule & Typical Details | | Stormwater Drainage Plans | | 3 | Drawing No. S100, Revision 03 | Cover Sheet | Deboke Engineering Consultants | 01 October 2025 | | Drawing No. S101, Revision 03 | Specifications Sheet | | Drawing No. S200, Revision 03 | Basement Plan 1 of 2 | | Drawing No. S201, Revision 03 | Basement Plan 2 of 2 | | Drawing No. S202, Revision 03 | Ground Floor Plan 1 of 2 | | Drawing No. S203, Revision 03 | Ground Floor Plan 2 of 2 | | Drawing No. S204, Revision 03 | First Floor Plan 1 of 2 | | Drawing No. S205, Revision 03 | First Floor Plan 2 of 2 | | Drawing No. S206, Revision 03 | Roof Plan | | Drawing No. S300, Revision 03 | Details Sheet 1 of 4 | | Drawing No. S301, Revision 03 | Details Sheet 2 of 4 | | Drawing No. S302, Revision 03 | Details Sheet 3 of 4 | | Drawing No. S303, Revision 03 | Details Sheet 4 of 4 | | Drawing No. S400, Revision 03 | Erosion and Sediment Control Plan | | Civil Plans | | 4 | Drawing No. S100, Revision 04 | Cover Sheet | Deboke Engineering Consultants | 02 October 2025 | | Drawing No. S101, Revision 04 | Specifications Sheet | | Drawing No. S200, Revision 04 | Site Plan | | Drawing No. S201, Revision 04 | General Arrangement Plan 1 of 2 | | Drawing No. S202, Revision 04 | General Arrangement Plan 2 of 2 | | Drawing No. S300, Revision 04 | Slope Analysis Plan 1 of 2 | | Drawing No. S301, Revision 04 | Slope Analysis Plan 2 of 2 | | Drawing No. S400, Revision 04 | Bulk Earthwork Plan 1 of 2 | | Drawing No. S401, Revision 04 | Bulk Earthwork Plan 2 of 2 | | Drawing No. S500, Revision 04 | Driveway Long Sections | | Drawing No. S600, Revision 04 | Council Standard Drawings | | Longsections | | 5 | Drawing No. HC024/2425-1, Sheet No. 1/3 | Longitudinal Section Plan - Curved Ramp (Outer Edge) - Part 1 | Hemanote Consultants | 27 August 2025 | | Drawing No. HC024/2425-2, Sheet No. 2/3 | Longitudinal Section Plan - Curved Ramp (Outer Edge) - Part 2 | | Drawing No. HC024/2425-3, Sheet No. 3/3 | Longitudinal Section Plan - Curved Ramp (Inner Edge) | | Reports | | 6 | Updated SIDRA Intersection Traffic Analysis Report | Hemanote Consultants Pty Ltd | 1 October 2025 | | 7 | Updated Addendum Traffic & Parking Report – Post Section 34 | Hemanote Consultants Pty Ltd | 01 October 2025 | | 8 | Plan of Management | | 1 October 2025 | | 9 | Arboricultural Impact Assessment and Tree Management Plan | Horticultural Management Services | 1 October 2025 | | Model | | 10 | MUSIC Model | Deboke Engineering Consultants | |

Orders

12. The Court Orders that:

13. The appeal is upheld.

14. Development Application No. 879/2025/HA, for the demolition of existing structures, removal of trees, and the construction of a two-storey 100 place centre based childcare facility and associated works on land legally described as Lot B in Deposited Plan 372086 and known as 9 Cook Street, Baulkham Hills NSW 2153, is determined by the grant of development consent subject to the conditions set out in Annexure ‘A’.

Stuart Harding

Acting Commissioner of the Court

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Annexure A (644 KB, pdf)