Luxland Warnervale Pty Ltd v Central Coast Council

Texts Cited: Central Coast Development Control Plan 2022
NSW Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021
NSW Rural Fire Service, Planning for Bush Fire Protection, November 2019

Category: Principal judgment

Parties: Luxland Warnervale Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
A Knox (Applicant)
S Simington (Solicitor) (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/196133

Publication restriction: Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application DA/2443/2023 (Development Application) seeking consent for the construction of a two storey centre-based child care facility of 67 places, including at-grade carparking, landscaping and site works, on land legally described as Lots 136, 137, 138 and 139 in Deposited Plan 1283637 and known as 144-146 Warnervale Road, and 1-3 McEnery Close, Hamlyn Terrace (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 14 January 2024.

4. The Development Application was publicly exhibited between 25 January and 16 February 2024. One submission was received objecting to the proposal.

5. The Development Application was refused by the respondent on 26 March 2025.

6. On 22 May 2025, the applicant commenced proceedings in relation to the refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was terminated on 10 December 2025. Following this, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

8. Amended plans and further documents were provided to the Court on 19 and 20 March 2026 (Amended Development Application) cited at [45]. The amendments included:

9. amending the setback of the built form to 1m from the western boundary in order to move the outdoor play area and reduce acoustic and visual privacy impacts on the neighbouring property;

10. reducing the child care places by four children to facilitate a compliant outdoor area and remove the need for one car space;

11. lowering the height of the ceilings on the ground floor to reduce bulk and scale; and

12. changing the roof form and boundary fence.

13. The decision agreed upon by the parties is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

14. 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.

Jurisdictional considerations

11. 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 s34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owners’ consent

12. The applicant is the registered proprietor of the lots comprising the Subject Land (see Class 1 Application, tab 1).

13. Works are also proposed on adjacent public road reserve including:

14. removal of a street tree along McGeachie Drive;

15. construction of a new entrance driveway and crossover from McGeachie Drive; and

16. construction of a new exit driveway and crossover to Warnervale Road.

17. The respondent, as the relevant owner of the public road reserve, has provided its consent to the above works on the public road reserve through agreeing to the approval of the Amended Development Application.

Rural Fires Act 1997 (NSW)

15. The Amended Development Application comprises integrated development under s 4.46 of the EPA Act as it requires a bush fire safety authority, being development for a “special fire protection purpose”. Pursuant to s 100B of the Rural Fires Act 1997 (NSW) (RF Act), a person must obtain a bush fire safety authority before developing bush fire prone land for a purpose referred to in subs (1), which relevantly includes development for a special fire protection purpose.

16. Section 100B(2) of the RF Act relevantly provides:

100B Bush fire safety authorities

…

(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.

17. The proposed development was referred to the NSW Rural Fire Service (RFS) and on 24 February 2026, the RFS issued General Terms of Approval (RFS GTAs) which are incorporated in the agreed conditions of consent (see Condition 1.4).

Section 4.14 of the EPA Act

18. Section 4.14(1)(a) of the EPA Act relevantly provides that development consent cannot be granted for the carrying out of development on bush fire prone land, unless the consent authority is satisfied that the development conforms to the specifications and requirements of Planning for Bush Fire Protection (PBFP) that are relevant to the development.

19. Section 4.14(1) of the EPA Act applies to the Amended Development Application as the Subject Land is mapped as containing bush fire prone land. The parties agree that the requirements of s 4.14(1)(a) of the EPA Act have been met having regard to the findings in both the Bushfire Assessment Report prepared by Peak Land Management dated 7 October 2025 (Bushfire Assessment) and the RFS GTAs.

20. In determining the Development Application, I confirm that I am satisfied that the Amended Development Application complies with the relevant specifications and requirements of PBFP, having regard to the Bushfire Assessment, RFS GTAs, and conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

4.6 Contamination and remediation to be considered in determining development application

…

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

22. Section 4.6(2) of the RH SEPP provides that “[b]efore determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.” Relevantly, subs (4)(c) includes land to the extent to which it is proposed to carry out development for child care purposes in relation to which there is no (or incomplete) knowledge as to whether certain development for a purpose of carrying out activities that may cause contamination had been carried out and on which it would have been lawful to carry out such development.

23. The Amended Development Application includes a Detailed Site Investigation prepared by Douglas Partners dated September 2023 (DSI) (see Class 1 Application, tab 15). The DSI undertakes a site investigation of the Subject Land and considers the analytical results of sampling undertaken on the Subject Land. The DSI concludes (at p 16) that “the site is suitable for the proposed childcare centre development subject to formal waste classification of soils proposed to be removed from site, implementation of an unexpected finds protocol (UFP)… and implementation of an imported materials protocol…”.

24. Conditions 1 and 5.2 of the agreed conditions relevantly require compliance with the recommendations of the DSI.

25. The parties agree that the requirements of s 4.6(1) and (2) of the RH SEPP are satisfied.

26. Having regard to the DSI and agreed conditions, I am satisfied that the Subject Land is suitable, or can be made suitable, for the purposes for which development consent is sought.

State Environmental Planning Policy (Transport and Infrastructure) 2021

27. Section 3.23 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP) relevantly provides that before determining a development application for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline (Guidelines) in relation to the proposed development.

28. The proposed development’s compliance with the Guidelines has been addressed in the Statement of Environmental Effects prepared by GAT & Associates dated December 2023 (SEE) (see pp 11 and App A), and through the Amended Architectural Plans prepared by Dreamscapes Architects dated 25 November 2025 (Amended Architectural Plans) and Amended Landscape Plans prepared by Package Landscapes Australia Pty Ltd dated 5 December 2025 (Amended Landscape Plans).

29. Section 3.26 of the Infrastructure SEPP sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) provides the requirements for indoor or outdoor space.

30. The Amended Development Application provides at least 3.25m2 of unencumbered indoor play space (see pp 12-13 of the SEE) and at least 7m2 of unencumbered outdoor play space (see Plan A120 of the Amended Architectural Plans), which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations (2011), which requires 3.25m2 of unencumbered indoor (play) space and 7m2 of unencumbered outdoor (play) space.

31. Chapter 3 of the Infrastructure SEPP is addressed at pp 10-13 of the SEE and through the Amended Architectural Plans and Amended Landscape Plans.

32. In determining the Amended Development Application, I am satisfied that the matters outlined in Ch 3 of the Infrastructure SEPP have been considered and addressed.

Education and Care Services National Regulations (2011 SI 653)

33. The Education and Care Regulations provide extensive controls and requirements in addition to that of the Infrastructure SEPP, Central Coast Local Environmental Plan 2022 (CLEP) and Central Coast Development Control Plan 2022 (CDCP).

34. Compliance with the Education and Care Regulations is assessed at pp 27-30 of the SEE and through the Amended Architectural Plans and Amended Landscape Plans.

Central Coast Local Environmental Plan 2022

35. The Subject Land is zoned R1 General Residential under the CLEP. Accordingly, the proposed development, being a “centre-based child care facility” is permissible with consent in the R1 zone. I have had regard to the zone objectives which are extracted below:

1 Objectives of zone

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To promote best practice in the design of multi dwelling housing and other similar types of development.

• To ensure that non-residential uses do not adversely affect residential amenity or place unreasonable demands on services.

36. The parties agree, and I accept, that there are no relevant height of buildings or floor space ratio development standards that apply to the Subject Land.

37. Pursuant to cl 6.2 of the CLEP relating to public utility infrastructure, development consent must not be granted for development on land in an urban release area unless the consent authority is satisfied of the matters set out in cl 6.2(1). The parties agree, and I accept, that all public utility infrastructure that is essential for the proposed development is available or adequate arrangements have been made to make that infrastructure available when it is required (see also p 32 of the SEE).

38. Clause 7.6 of the CLEP relevantly provides that development consent must not be granted to development unless the consent authority is satisfied that all of the services essential for the development are available or that adequate arrangements have been made to make them available when required. Having regard to pp 32-33 of the SEE and agreed conditions, I am satisfied of the matters set out in cl 7.6 of the CLEP.

Central Coast Development Control Plan 2022

39. The parties are satisfied that all relevant provisions of the CDCP have been taken into consideration in the assessment and determination of the Amended Development Application (see also pp 34-37 of the SEE).

Remaining matters under s 4.15(1) of the EPA Act

40. The parties agree that the matters listed in s 4.15(1)(b), (c) and (e) are considered generally in the SEE (see pp 15-16).

41. In respect of s 4.15(1)(d) of the EPA Act, the Development Application was publicly exhibited between 25 January and 16 February 2024. One submission was received objecting to the proposal raising concerns including:

42. a restriction on title that restricts the use of the land to residential purposes; and

43. noise levels.

44. I am satisfied that the written submission has been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

43. 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.

44. 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.

45. The Court notes that:

46. The respondent, as the relevant consent authority for the purposes of s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), approves the amendment to Development Application No DA/2443/2023 to rely on the following amended plans and documentation:

(a) Architectural plans prepared by Dreamscapes Architects Pty Ltd as follows:

| Sheet Number | Sheet Name | Date | Revision | | A-000 | Cover Page | 25-11-2025 | 7 | | A-100 | Site Plan | 25-11-2025 | 7 | | A-101 | Context Map | 25-11-2025 | 7 | | A-102 | Site Analysis | 25-11-2025 | 7 | | A-103 | Shadow Diagram | 25-11-2025 | 7 | | A-104 | Shadow Diagram | 25-11-2025 | 7 | | A-105 | Shadow Diagram | 25-11-2025 | 7 | | A-120 | Area Plan | 25-11-2025 | 7 | | A-130 | Evacuation Plan | 25-11-2025 | 7 | | A-140 | Waste Management Plan | 25-11-2025 | 7 | | A-201 | Ground Floor Plan | 25-11-2025 | 7 | | A-202 | First Floor Plan | 25-11-2025 | 7 | | A-203 | Roof Plan | 25-11-2025 | 7 | | A-310 | Elevations | 25-11-2025 | 7 | | A-311 | Elevations – Fence | 25-11-2025 | 7 | | A-320 | Sections | 25-11-2025 | 7 | | A-700 | Finish Schedule | 25-11-2025 | 7 | | A-710 | Perspective | 20-10-2025 | 6 | | A-711 | Perspective | | |

(b) Acoustic report prepared by Day Design Pty Ltd dated 26 November 2025 (c) Landscape Plan prepared by Package Landscapes Australia Pty Ltd dated 5 December 2025 (d) 3D image – Warnervale Road (e) 3D image – McEnery Close (f) 3D image – McGeachie Drive (g) Operational Plan of Management prepared by Dreamscapes Architects Pty Ltd dated 11 November 2025 (h) Overshadowing Letter prepared by GAT & Associates Pty Ltd dated 12 November 2025 (i) Road Safety Audit prepared by Traffic Works Pty Ltd dated 30 October 2025 (j) Traffic and Parking Impact Assessment (Revision E) prepared by Transport Strategies Alliance Pty Ltd dated November 2025

2. The applicant provided the amended plans and documents outlined above with the Court on 19 March 2026.

Orders

46. The Court orders that:

47. The applicant is to pay the respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed.

48. The appeal is upheld.

49. Development Application No DA/2443/2023, as amended, for the construction of a two-storey centre-based child care facility of 63 places, including at-grade carparking, landscaping and site works at 144-146 Warnervale Road, and 1-3 McEnery Close, Hamlyn Terrace, is determined by the grant of consent subject to the conditions at Annexure A.

N Targett

Commissioner of the Court

Annexure A (555 KB, pdf)

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