Lilnance Group Pty Ltd v Penrith City Council

Texts Cited: Department of Planning, Industry and Environment, Child care planning guideline (September 2021)

Category: Principal judgment

Parties: Lilnance Group Pty Ltd (First Applicant)
Lilnance Investment Pty Ltd (Second Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
B Collingwood (Applicants)
B Gallifuoco (Respondent)
Solicitors:
Centurion Lawyers (Applicants)
Penrith City Council (Respondent)

File Number(s): 2025/36709

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 Lilnance Group Pty Ltd (the Applicant) against the Penrith City Council’s (the Respondent) deemed refusal of Development Application DA24/0757 which was lodged on 4 October 2024. The Development Application was subsequently refused on 11 July 2025.

2. The Development Application seeks development consent for the demolition of existing structures on the site and construction of a two storey “centre-based childcare facility”. The proposed development is to be undertaken on land legally described as Lots 364 and 365 in Deposited Plan 713863, and known as 1 and 3 Pheonix Cresent, Erskine Park NSW 2759 (the Site).

3. This matter was listed for hearing on 10 February 2026. After the commencement of the hearing, the matter was adjourned as the parties had come to an agreement and had lodged that agreement with the Court. The matter was subsequently allocated to me as a s34 conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (the LEC Act).

4. 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 conditions. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court.

5. 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, subject to 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 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. The consent of the Owners has been provided.

9. Pursuant to the Penrith Local Environmental Plan 2010 (PLEP), the subject site is zoned R2 Low Density Residential. Centre-based child care facilities are permissible, with development consent, within this zone. In determining the development application, regard has been paid to the objectives of the zone.

10. Pursuant to cl 7.1 of the PLEP, the consent authority is required to be satisfied that the matters outlined in the clause have been considered. The parties agree that the extent of the earthworks by the Proposed Development will have minimal adverse environmental or amenity impacts. This is supported by a Preliminary Site Investigation Report dated 28 June 2024 prepared by Geotechnical Consultants Australia. The proposed excavation will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability in the area and is consistent with the current and future use of the land and will develop the site into context with its surrounds and in accordance with Councils current and proposed planning strategies. I am satisfied that the matters requiring consideration have been dealt with.

11. The matters in cl 7.4 of the PLEP relating to Sustainable Development are relevant and require the consent authority to have regard to the principles of sustainable development as they relate to the development based on a “whole of building” approach. The proposal incorporates design elements to support the principles of sustainable design. The parties agree that the proposal has adequately demonstrated how the building meets the sustainable development criteria. This includes, but is not limited to, assessing energy conservation, solar access, ventilation, waste minimisation, reduction of dependency on vehicles and potential for adaptive re-use. I am satisfied that the requirements of cl 7.4 have been met and that proper regard has been paid to the principles of sustainable development.

12. The requirements of cl 7.7 of the PLEP, that require the consent authority to be satisfied that certain services will be met, has been adequately considered and satisfied. The Site contains existing residential dwellings in an established residential area which are serviced by all essential services. Appropriate conditions ensuring the required outcomes are included in the Development Consent attached in Annexure A.

13. Pursuant to cl 7.30 of the PLEP (Urban Heat) the consent authority must be satisfied that planning and design measures are incorporated to reduce the urban heat island effect. The Amended Application is compliant with the applicable setback controls. As a result, the parties agree that those areas are appropriately used for green space and landscaping and that this requirement has been met by the provision of suitable canopy trees to the north and west to provide natural shade. The proposal includes provision for 36 new trees across the site and these outcomes are documented in the Arboricultural and landscaping outcomes. I am satisfied that the relevant planning and design measures are incorporated in the proposal and that the requirements of cl 7.30 have been met.

14. The development application was notified for 14 days from 21 October 2024 to 3 November 2024. Council received a total of eight (8) submissions in response to the public notification. The proposal was notified in various form on two more occasions and further submissions were received. Oral submissions were also made as part of the hearing process that commenced on site. The parties have considered these submissions in the finalisation of this matter.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

8. Consideration has been given to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). The parties have considered the Arboricultural Impact Assessment (AIA) and Tree Management Plan (TMP) dated 27 January 2026 prepared by Creative Planning Solutions. The report concludes, based on site investigations, that 8 existing trees must be removed and landscaping embellishing works which will improve and enhance the Site within the existing residential character. The AIA and TMP also aim to reduce the physical bulk and scale of the development and integrate the proposal within the context of the site and its surrounds. These reports are further supplemented by both the Aboricultural and Landscaping outcomes.

9. Chapter 6 of the BC SEPP applies to the Proposed Development as the Site is located within the Hawkesbury-Nepean Catchment. The parties agree that the various document that comprise the stormwater, erosion and sediment solutions and the preliminary site investigation have demonstrated a neutral effect on the quality of water entering the catchment. These documents include the Stormwater and Water Sensitive Urban Design Joint Report prepared by Andrew Arisa (Applicant) and Tim Gowing and Ganesh Bista (both for the Respondent) filed on 23 January 2026.

10. The parties agree that the requirements of the SEPP BC have been appropriately assessed as satisfactory. I am also satisfied that the required considerations have been undertaken.

State Environmental Planning Policy (Resilience and Hazards) 2021

11. Consideration has been given to whether the Site is contaminated as required by cl 4.6 of State Environmental Planning Policy (SEPP RH) 2021. The applicant provided a Preliminary Site Investigation Report dated 28 June 2024 prepared by Geotechnical Consultants Australia and a Geotechnical Investigation Report dated 2 July 2024 prepared by Geotechnical Consultants Australia. The reports affirm that the Site is suitable for the proposed development. Appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

State Environmental Planning Policy (Transport and Infrastructure) 2021

12. The required consideration has been given to State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI). The SEPP TI, in Chapter 3 - Educational Establishments and Child Care Facilities, also has various requirements for consideration in respect to centre based child care facilities. The parties agree that the development application has considered the relevant controls, as required under cl 3.23 of the SEPP TI.

13. A further consideration is the proposals compliance, or otherwise, with the Education and Care Services National Regulations (the Regulations). The parties agree that compliance is achieved with these guidelines as set out in the statement of environmental effects accompanying the application.

14. The application has also been assessed by the parties against the NSW Childcare Planning Guidelines (CCPG). Clause 3.23 of the SEPP TI requires consideration of applicable provisions in the CCPG. The parties agree that the proposal meets the objectives of the CCPG and that the proposal is compatible with the local character. Issues such as design, visual and acoustic privacy and parking have all been considered and found satisfactory. I am satisfied that the child care aspects of the SEPP TI and the Regulations have been met.

15. 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.

16. 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.

17. The Court notes that:

18. The Respondent has agreed, as the Consent Authority, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant’s amendment of Development Application No. 24/0757 in accordance with the following plans and documents:

| Architectural Plans prepared by Playoust Churcher | | Plan No. | Revision | Title | Dated | | 001 | D | Cut & Fill Plan | 30 January 2026 | | 100 | D | Demolition Plan | 30 January 2026 | | 101 | D | Site & Roof Plan | 30 January 2026 | | 102 | D | Ground, Site & Basement Floor Plan | 30 January 2026 | | 103 | D | First Floor Plan | 30 January 2026 | | 200 | D | Elevations | 30 January 2026 | | 201 | D | Elevations | 30 January 2026 | | 202 | D | Sections | 30 January 2026 | | DA1000 | D | External Finishes | 30 January 2026 | | Landscape Plans prepared by Landsberg Garden Design | | Plan No. | Revision | Title | Dated | | L001 | C | Overview | 10 January 2026 | | L100 | C | Landscape Plan | 10 January 2026 | | L101 | C | Sections – Back Garden | 10 January 2026 | | L102 | C | Landscape Plan – First Floor | 10 January 2026 | | L200 | C | Planting Plan | 10 January 2026 | | L201 | C | Tree Plan | 10 January 2026 | | L202 | C | Planting Plan – First Floor | 10 January 2026 | | L400 | C | Landscape Details | 10 January 2026 | | L401 | C | Landscape Specifications | 10 January 2026 | | Stormwater Management Plans prepared by AMUNA Civil Engineering | | Plan No. | Revision | Title | Dated | | S1 | 5 | Title Page & Notes | 30 January 2026 | | S2 | 5 | Management of Stormwater Plan – Basement Floor | 30 January 2026 | | S3 | 5 | Management of Stormwater Plan – Ground Floor Page 1 of 2 | 30 January 2026 | | S4 | 5 | Management of Stormwater Plan – Ground Floor Page 2 of 2 | 30 January 2026 | | S5 | 5 | Management of Stormwater Details Page 1 or 2 | 30 January 2026 | | S6 | 5 | Management of Stormwater Details Page 2 of 2 | 30 January 2026 | | S7 | 5 | Management of Stormwater Calculations Page 1 of 2 | 30 January 2026 | | S-S8 | 5 | Management of Stormwater Calculations Page 2 of 2 | 30 January 2026 | | ES1 | 5 | Erosion and Sediment Control Plan | 30 January 2026 | | ES2 | 5 | Erosion and Sediment Control Notes and Details | 30 January 2026 | | Civil and Driveway Plans prepared by AMUNA Civil Engineering | | Plan No. | Revision | Title | Date | | D1 | 5 | Title Page & Notes | 30 January 2026 | | D2 | 5 | Driveway – Plan – Page 1 of 2 | 30 January 2026 | | D3 | 5 | Driveway – Plan – Page 2 of 2 | 30 January 2026 | | D4 | 5 | Driveway – Long Section – MC1 | 30 January 2026 | | D5 | 5 | Driveway – Cross Sections – MC1 | 30 January 2026 | | D6 | 5 | Driveway – Swept Paths – Entry | 30 January 2026 | | D7 | 5 | Driveway – Swept Paths – Exit | 30 January 2026 | | D8 | 5 | Driveway – Details | 30 January 2026 | | Construction Traffic Management Plan prepared by PDC Consultants dated 28 October 2025 | | Statement of Design Compliance – Pool Fencing prepared by Buildcert dated 10 October 2025 | | Basix certificate No. 1787354S_03 dated 12 January 2026 | | NatHERS Summary Report and Certificate prepared by Energy Rating Group Ref: ERG1094 dated 1 October 2025 |

Orders

18. The Court orders that:

19. The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $4,000 within 28 days from receipt of an invoice.

20. The appeal is upheld.

21. Development Application No. 24/0757, for the demolition of existing structures and construction of a two-storey child care centre with associated works, at the property comprised in folio identifiers 364/713863 and 365/713863 and known as 1-3 Phoenix Cresent, Erskine Park NSW 2750, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

S Harding

Acting Commissioner of the Court

**********

Annexure A (445 KB, pdf)