La Luce 82 Pty Ltd v Shoalhaven City Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Education Care Services National Regulations, regs 107, 108
Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38
Shoalhaven Local Environmental Plan 2014, cll 2.3, 2.7, 6.1, 6.2, 6.9
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, s 4.9, Sch 2
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 3.23

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223

Texts Cited: Department of Planning, Industry and Environment, Child care planning guideline (September 2021)
Shoalhaven Development Control Plan 2014

Category: Principal judgment

Parties: La Luce 82 Pty Ltd (Applicant)
Shoalhaven City Council (Respondent)

Representation: Counsel:
A Johnson (Solicitor) (Applicant)
J Kingston (Solicitor) (Respondent)
Solicitors:
Miller Prince (Applicant)
Urban Legal (Respondent)

File Number(s): 2025/300411

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by La Luce 82 Pty Ltd (the Applicant) against the actual refusal of development application DA2024/1248. As amended the development application seeks consent or removal of trees, the demolition of all existing structures and the construction of a two storey, 60 place centre-based childcare facility with parking and associated engineering and landscape works. The development is proposed at 22 McMahons Road, North Nowra (Lot 8 DP 26653).

2. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference was held on 17 November 2025. The conciliation conference was adjourned to provide the parties the opportunity to seek to resolve their dispute, but the conciliation was ultimately terminated and the matter listed for hearing.

3. Prior to the commencement of the hearing, the parties advised the Court they had reached agreement following an adjournment of the hearing, the Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 6 March 2026. I presided over the further conciliation conference. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMillan) at [51].

4. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions: see McMillian at [51]. I form this state of satisfaction based on the following:

5. The development application is lodged by Charlie Baini of Baini Design performing the function as agent for La Luce 82 Pty Ltd and with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation). In accordance with the decision in Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223 the Applicant has standing to commence these proceedings under s 8.7(1) of the EPA Act.

6. The development application was notified by the Respondent between 27 June and 11 July 2024. One submission was received. The amended development application was renotified between 2 and 31 January 2025 No submissions were received. With the assistance of the amended development application documents filed in the proceedings I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or by the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

7. Chapter 4 (Remediation of Land) of State Environmental Planning Policy (Resilence and Hazards) 2021 (SEPP RH) applies to the land. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. The development application includes a Preliminary Environmental Site Assessment (PSI) which confirms the site is suitable for the proposed development. Compliance with the PSI is required by the conditions in Annexure A. With the assistance of the PSI I am satisfied that the site will be suitable for the purpose of the development application.

8. Chapter 4 of State Environmental Planning Policy (Biodiversity Conservation) 2021 (SEPP BC) applies to the development as City of Shoalhaven local government area is listed in Sch 2 of SEPP BC. There is no approved Koala Plan of Management for the site. Further, the provisions of s 4.9 do not apply as the site has a land area of less than 1 hectare. I accept the agreed submission of the parties that the site is not core koala habitat as the is not listed by the NSW Government Biodiversity Values tool as land with a high biodiversity value and the Council has not identified the Site as containing core koala habitat. The requirements of Ch 4 of SEPP BC are met.

9. The development application involves ground penetration within 2 m of an electricity distribution pole. Pursuant to s 2.48(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) the consent authority is required to firstly give written notice to the electricity supply and secondly take into account any comments received within 21 days. The Development Application was referred to Endeavour Energy, who raised no objections to the proposal subject to appropriate conditions of consent in their response. These conditions have been included within the agreed conditions of consent in Annexure A.

10. Further, pursuant to s 3.23 of SEPP TI, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines issued by the NSW Department of Planning, Industry and Environment in 2021 (CC Guidelines) before determining the application. The Statement of Environment Effects (SEE) accompanying the development application includes analysis demonstrating how the DA complies with the CC Guidelines.

11. Section 3.26 of SEPP TI 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 2011 (the CC Regulation) provides the requirements for indoor or outdoor space. I note that pursuant to reg 107 of the CC Regulation, education and care service premises must have at least 3.25 m2 of unencumbered indoor space per child. The proposed development complies with this clause. Further, I note that pursuant to reg 108 of the CC Regulation, education and care service premises must have at least 7 m2 of unencumbered outdoor space per child. The proposed development complies with this regulation.

12. I accept the parties' agreed submission that the development application complies with the relevant matters under the CC Planning Guidelines and the Childcare Regulation, as demonstrated by the SEE.

13. The Shoalhaven Local Environmental Plan 2014 (LEP 2014) applies to the land. Pursuant to LEP 2014 a centre based childcare centre is permissible with consent in the R3 Medium Density Residential zone. As required by cl 2.3 of LEP 2014, in determining the development application, I have given consideration to the objectives of the zone.

14. Pursuant to cl 2.7 ‘Demolition’, demolition is permitted with consent in the zone.

15. The amended development application is compliant with the height and floor space ratio development standards in LEP 2014.

16. Clause 6.1 (Acid Sulfate Soils) provides that development consent is required for the carrying out of works described in the Table at cl 6.1(2) on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. The Site is identified as containing Class 5 acid sulfate soils. The SEE confirms the proposed development is not located within 500 m of Class 1, 2, 3 or 4 land, it is not likely to lower the water table below 1 m Australian Height Datum. Further, the PSI confirms that there is a low likelihood of encountering acid sulfate soils on the site. Therefore, I accept the agreement of the parties that an acid sulfate soils management plan is not required. The proposed development complies with cl 6.1 of LEP 2014

17. Clause 6.2 'Earthworks' in LEP 2014 applies as the development application involves cut and fill as required to create the parking level for the building. The excavation works are relatively minor in nature. The development application is accompanied by Stormwater Drainage Plans, Erosion and Sediment Control Plans and a Waste Management Plan. With the assistance of these components of the development application and the SEE I accept the agreement of the parties that cl 6.2 of LEP 2014 is met. Further, appropriate conditions of consent have been included to address required earthworks and the potential impacts of the same. In determining whether to grant development consent, I have given consideration to the matters at cl 6.2 and find that none warrant the refusal of the applicant.

18. Pursuant to cl 6.9 ‘Essential services’ in LEP 2014 a consent authority must be satisfied that the services essential to the development are available, or that adequate arrangements have been made to make them available when required. Based on the SEE, the civil and architectural plans and the fact that there are existing sewer and water supply services to the site, I am satisfied of the matters in cl 6.9 of LEP 2014.

19. The Shoalhaven Development Control Plan 2014 (DCP 2014) applies to the site. The SEE filed with the application details the compliance of the proposed development with DCP 2014. In determining the development application, I have considered the provisions of the development control plan pursuant to s 4.15(1) of the EPA Act.

20. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act in s 34(3)(b) also requires me to “set out in writing the terms of the decision”.

21. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

7. The Court notes that:

8. The Respondent, as the relevant consent authority, has approved under s 38(1) of the EPA Regulation, to the Applicant amending Development Application No. DA2024/1248 in accordance with the following amended plans and documents

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No. 00, Revision H | Cover Page | Baini Design | 19 January 2026 | | Drawing No. 01, Revision H | Compliance Table, Location Plan | | Drawing No. 02, Revision H | Location Analysis Plan | | Drawing No. 03, Revision H | Site Analysis Plan | | Drawing No. 04, Revision H | Shadow Diagrams | | Drawing No. 05, Revision H | Site Plan | | Drawing No. 06, Revision H | Demolition Plan | | Drawing No. 07, Revision H | Ground Floor Plan | | Drawing No. 08, Revision H | First Floor Plan | | Drawing No. 09, Revision H | Roof Plan | | Drawing No. 10, Revision H | Elevations | | Drawing No. 11, Revision H | Elevation, Section | | Drawing No. 12, Revision H | Callout Elevations | | Drawing No. 13, Revision H | Kitchen & Laundry Details | | Drawing No. 14, Revision H | Typical Nappy Change | | Drawing No. 15, Revision H | Typical Bottle Prep Detail | | Drawing No. 16, Revision H | Typical Craft Bench Detail | | Drawing No. 17, Revision H | Schedule Of Finishes | | Drawing No. 18, Revision H | Shading Devices Plans | | Drawing No. 19, Revision H | Solar Access Plans - GF | | Drawing No. 20, Revision H | Solar Access Plans - FF | | Drawing No. 21, Revision H | Calc. Plan - GF Floor Space and OPA | | Drawing No. 22, Revision H | Calc. Plan - FF Floor Space and OPA | | Drawing No. 23, Revision H | Indoor Calc. Plan - 0-2 & 2-3 | | Drawing No. 24, Revision H | Indoor Calc. Plan - 3-5 | | Drawing No. 25, Revision H | Fencing Detail - Ground Floor | | Drawing No. 26, Revision H | Fencing Detail - First Floor | | Drawing No. 27, Revision H | 3D Perspectives | | Drawing No. 28, Revision H | Streetscape Elevation | | Drawing No. 29, Revision H | Accessible Details - Ground Floor | | Drawing No. 30, Revision H | Accessible Details - First Floor | | Drawing No. 32, Revision H | Electronic Parking Plan & Sign Elevation | | Landscape Plans | | 2 | Drawing No. 01, Issue D | Landscape Concept Ground Floor | Outside In Design Group Pty Ltd | 13 January 2026 | | Drawing No. L - 02, Issue D | First Floor + Plant Schedule | | Swept Paths | | 3 | Drawing No. 23–194 –02–V10, Sheet No. 01 / 12 | Concept Layout Ground | Stanbury Traffic Planning | 8 December 2025 | | Drawing No. 23–194 –02–V10, Sheet No. 02 / 12 | Swept Path Assessment Ground | | Drawing No. 23–194 –02–V10, Sheet No. 03 / 12 | Swept Path Assessment Ground | | Drawing No. 23–194 –02–V10, Sheet No. 04 / 12 | Swept Path Assessment Ground | | Drawing No. 23–194 –02–V10, Sheet No. 05 / 12 | Swept Path Assessment Ground | | Drawing No. 23–194 –02–V10, Sheet No. 06 / 12 | Swept Path Assessment Ground | | Drawing No. 23–194 –02–V10, Sheet No. 07 / 12 | Swept Path Assessment Ground | | Drawing No. 23–194 –02–V10, Sheet No. 08 / 12 | Swept Path Assessment Ground | | Drawing No. 23–194 –02–V10, Sheet No. 09 / 12 | Swept Path Assessment Ground | | Drawing No. 23–194 –02–V10, Sheet No. 10 / 12 | Swept Path Assessment Ground | | Drawing No. 23–194 –02–V10, Sheet No. 11 / 12 | Vertical Clearance Assessment Main Access Ramp | | Drawing No. 23–194–02 –V10, Sheet No. 12 / 12 | Vertical Clearance Assessment Main Access Ramp | | Stormwater Drainage Plans | | 4 | Drawing No. S100, Revision 05 | Cover Sheet | Deboke Engineering Consultants | 9 February 2026 | | Drawing No. S101, Revision 05 | Specifications Sheet | | Drawing No. S200, Revision 05 | Ground Floor Plan | | Drawing No. S201, Revision 05 | First Floor Plan | | Drawing No. S202, Revision 05 | Roof Plan | | Drawing No. S300, Revision 05 | Details Sheet 1 of 4 | | Drawing No. S301, Revision 05 | Details Sheet 2 of 4 | | Drawing No. S302, Revision 05 | Details Sheet 3 of 4 | | Drawing No. S303, Revision 05 | Details Sheet 4 of 4 | | Drawing No. S400, Revision 05 | Erosion and Sediment Control Plan | | Civil Plans | | 5 | Drawing No. S100, Revision 02 | Cover Sheet | Deboke Engineering Consultants | 17 December 2025 | | Drawing No. S101, Revision 02 | Specifications Sheet | | Drawing No. S200, Revision 02 | General Arrangement Plan | | Drawing No. S301, Revision 02 | Slope Analysis Plan | | Drawing No. S302, Revision 02 | Bulk Earthwork Plan | | Drawing No. S400, Revision 02 | Driveway Long Sections | | Drawing No. S500, Revision 02 | Council Standard Drawings | | Drawing No. S501, Revision 02 | Council Standard Drawings | | Drawing No. S502, Revision 02 | Council Standard Drawings | | Reports | | 6 | Plan of Management | | 18 December 2025 | | 7 | SOFAC Response (Ref 20230454-L02) | Deboke Engineering Consultants | 12 November 2025 | | 8 | Stormwater Response Letter | Deboke Engineering Consultants | 28 January 2026 | | 9 | BCA Compliance Assessment Report | Absolute BCA & Accessibility Consulting Pty Ltd | 28 November 2025 | | 10 | Waste Management Plan | Dickens Solutions Pty Ltd | November 2025 | | 11 | Waste Management Process Letter | Capital City Waste Services | 20 November 2025 | | 12 | Landscape Specification + Maintenance Program | Outside In Design Group | 04 December 2025 | | 13 | Environmental Noise Impact Assessment | Day Design Pty Ltd | 11 November 2025 | | 14 | Updated Parking & Traffic Impact Assessment | Stanbury Traffic Planning | 7 November 2025 | | 15 | Car Park Management Plan | Stanbury Traffic Planning | 7 November 2025 | | 16 | Groundwater Infiltration Assessment Report | Geotechnical Consultants Australia Pty Ltd | 22 September 2025 |

Orders

8. The Court orders:

9. The appeal is upheld.

10. Development consent is granted to Development Application No. DA2024/1248 (as amended) for removal of trees, the demolition of all existing structures and the construction of a two-storey, 60 place centre-based child care facility with parking and associated engineering and landscaping works, on land legally described as Lot 8 in Deposited Plan 26653 and known as 22 McMahons Road, North Nowra NSW 2541, subject to the conditions at Annexure A.

11. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

D Dickson

Commissioner of the Court

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Annexure A (436 KB, pdf)