Lilnance Holdings Pty Ltd v Penrith City Council [2025] NSWLEC 1097 | Case summary

Judgment (4 paragraphs)

[1]

Judgment

COMMISSIONER: This appeal concerns a development application lodged on 10 August 2023 for the demolition of existing structures and the construction of a two-storey centre based child care facility for 120 children at 196-198 Bennett Road, St Clair. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
Following an adjournment of the hearing, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 February 2025. I presided over the conciliation conference.
At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.
The agreement was provided on the same day, and follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments include a design change so that the built form is no longer within two buildings, but is instead one building with the outdoor play areas adjacent to the road and separated from the neighbouring dwellings by the built form of the proposed building. This design change also reduces the overall building footprint and facilitates the retention of a number of significant trees.
The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Jurisdictional Statement that sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

Notations

The Court notes that the Respondent, Penrith City Council, has approved, as the relevant consent authority under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA23/0697 to rely upon the following amended plans and documents (Amended Development Application), as filed with the Court on 10 February 2025: Tab Document Date

             Architectural Drawings (Prepared by Baini Design, Project No. 23031)                           6 December 2024

Drawing/Plan No. Issue 01 F 02 F 03 F 04 F 05 F 06 F 07 F 08 F 09 F 10 F 11 F 12 F 13 F 14 F 15 F 16 F 17 F 18 F 19 F 20 F 21 F 22 F 23 F 24 F 25 F 26 F 27 F 28 F 29 F 30 F 31 F 32 F 33 F 34 F 35 F 36 F 37 F 38 F 2. Drawing/Plan No. Issue SW001 J SW010 J SW020 J SW021 J SW022 J SW023 J SW024 J ER001 J 3. 113.24(23)/234 E 113.24(23)/235 D 113.24(23)/178 B Specialist Reports Tab 4. 5. 6. 7. 8. 9. F568 10. 11. 12. 13. 14. 15. Plan Title Compliance Table, Location Plan 06/12/2024 Location Analysis Plan 06/12/2024 Site Analysis Plan 06/12/2024 9am Shadow Diagram 06/12/2024 12pm Shadow Diagram 06/12/2024 3pm Shadow Diagram 06/12/2024 Demolition Plan 06/12/2024 Site Plan 06/12/2024 Basement Plan 06/12/2024 Ground Floor Plan 06/12/2024 First Floor Plan 06/12/2024 Roof Plan 06/12/2024 Elevations 06/12/2024 Elevations 06/12/2024 Sections 06/12/2024 Schedule of Finishes 06/12/2024 Callout Elevations 06/12/2024 Kitchen and Laundry Details 06/12/2024 Typical Bottle Prep Detail 06/12/2024 Typical Craft Bench Detail 06/12/2024 Typical Nappy Change 06/12/2024 Ground Floor Calculation Plan 06/12/2024 First Floor Calculation Plan 06/12/2024 Solar Access Plans 06/12/2024 Solar Access Plans 06/12/2024 Shading Plan 06/12/2024 0-2 Indoor Play Area Calculation 06/12/2024 2-3 Indoor Play Area Calculation 06/12/2024 3-5 Indoor Play Area Calculation GF 06/12/2024 3-5 Indoor Play Area Calculation FF 06/12/2024 Ground Floor Fencing Details 06/12/2024 First Floor Fencing Details 06/12/2024 3D Perspectives 06/12/2024 Existing Streetscape Elevations 06/12/2024 Proposed Streetscape Elevations 06/12/2024 Accessible Details - Basement Floor 06/12/2024 Accessible Details - Ground Floor 06/12/2024 Accessible Details - First Floor 06/12/2024 Stormwater Management Plan (Prepared by Capital Engineering Consultants, Project No. SW23042) 16/12/2024 Plan Title Cover Sheet 16/12/2024 Basement Floor Plan, Notes & Details 16/12/2024 Ground Floor Plan 16/12/2024 Stormwater Drainage Design Notes & Details 1 of 3 16/12/2024 Stormwater Drainage Design Notes & Details 2 of 3 16/12/2024 Stormwater Drainage Design Notes & Details 3 of 3 16/12/2024 Cut and Fill Plan 16/12/2024 Erosion and Sediment Control Plan, Notes & Details 16/12/2024 Landscape Drawings (Prepared by iScape Landscape Architecture) Landscape Plan 1 09/12/2024 Landscape Plan 2 14/11/2024 Landscape Sections 14/11/2024 Ref No. Issue Document Dated 7129-2.1R E Amended Noise Impact Assessment prepared by Day Design Pty Ltd 12/12/24 Addendum Traffic Report prepared by Hemanote Consultants 07/06/24 Addendum Traffic Report prepared by Hemanote Consultants 12/06/24 Addendum Traffic Report prepared by Hemanote Consultants 15/11/24 Amended Waste Management Plan prepared by Dickens Solutions December 2024 E Arboricultural Impact Assessment prepared by Creative Planning Solutions 17/12/24 24080001 B ESD Assessment Report prepared by Duncan Hope Senica Consultancy Group 17/12/24 GR24157 Geotechnical Investigation Report prepared by GEC Geotechnical 02/09/24 WSUD Letter prepared by Capital Engineering Consultants 2/08/2024 WSUD Letter prepared by Capital Engineering Consultants 24/01/25 Costs Report by QPC&C 03/02/25 Updated Plan of Management prepared by Think Planners 10/02/25

Orders

The Court orders that: 1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application in the amount of $15,000 within 21 days of these orders being made. 2. The appeal is upheld. 3. Development consent is granted to Development Application DA23/0697, as amended, for amalgamation of two separate land parcels, demolition of existing structures and removal of trees, and construction of a two storey centre-based child care facility for 120 children and associated works, at the property comprised in folio identified 1155/259309 and 1156/259309 and known as 196-198 Bennett Road, St Clair NSW 2759, subject to the conditions in Annexure A.

Lilnance Holdings Pty Ltd v Penrith City Council

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Judgment (4 paragraphs)

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