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[2025] NSWLEC 1791
General information, not legal advice.
Land and Environment Court (NSW)
2025-11-11
Washington C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: McCulloch Street Developments Pty Ltd v Blacktown City Council [2025] NSWLEC 1791
Hearing dates: Conciliation conference on 30 October 2025
Date of orders: 11 November 2025
Decision date: 11 November 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The applicant is to pay the respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $9,000 within 28 days of the date of these Orders.
(2) The appeal is upheld.
(3) Development consent is granted to Development Application DA/2024/00714 for demolition of all existing buildings and structures, tree removal, civil works and construction of a part 2 part 3 storey seniors housing development above a basement car park, in the form of an infill self-care housing, at Lots 93 and 94 in DP 291185 and Lot 347 in DP 238732, otherwise known as 99-101 Lock Street and 53 Pendant Avenue, Blacktown, subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPLICATION – in-fill self-care housing – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW) s 34
Blacktown Local Environmental Plan 2015 cll 2.7, 4.3, 4.6, 5.21, 7.5
Environmental Planning and Assessment Regulation 2021 (NSW) s 38
State Environmental Planning Policy (Housing) 2021 Ch 3 Pt 5 ss 84, 85, 88, 93, 95, 97, 108, Sch 4
State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6
Category: Principal judgment
Parties: McCulloch Street Developments Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation: Counsel:
V Conomos (Solicitor) (Applicant)
L Raffaele (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Bartier Perry (Respondent)
File Number(s): 2024/390875
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Blacktown City Council (the Council), of Development Application DA-24-00714 which seeks consent for the demolition of all existing buildings and structures, tree removal, civil works, and construction of a part 2 part 3 storey seniors housing development above a basement car park, in the form of an infill self-care housing development at 99-101 Lock Street and 53 Pendant Avenue, Blacktown, Lots 93 and 94 in DP 291185 and Lot 347 in DP 238732.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
Following an earlier unsuccessful conciliation conference, at the parties’ request a further conciliation conference was arranged by the Court under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 30 October 2025.
At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address their contentions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 27 September to 11 October 2024. Nine submissions were received in this time. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submission and the information contained in the Preliminary Site Investigation by NEO Consulting, dated 16 May 2025, I accept that the land has historically been used for residential purposes, is not likely to be contaminated and is suitable for the proposed development.
The proposed development, which incorporates 29 independent living units, is defined as ‘in-fill self-care housing’ pursuant to the State Environmental Planning Policy (Housing) 2021 (SEPP Housing), and accordingly Chapter 3 Part 5 of this SEPP applies. From the information contained in the Statement of Environmental Effects by CSK Planning & Associates dated 15 August 2024 (SEE), the amended architectural plans by VOARC dated 23 September 2025, and the parties’ submission, with reference to the relevant provisions of the Housing SEPP I accept the following:
The general development standards at s 84 are met with the proposed development (SEPP Housing s 84).
The development standards for independent living units set out in Sch 4 of the SEPP Housing are met (SEPP Housing s 85).
The proposed development is to provide housing for seniors or people who have a disability and is therefore permissible under this part (SEPP Housing s 88).
The development will provide adequate access to facilities and services for residents (SEPP Housing s 93).
The development will be connected to a reticulated water system, and will have adequate facilities for the removal of sewage (SEPP Housing s 95).
The design has been considered against the Seniors Housing Design Guide 2023 and is acceptable (Annexure 2 of the SEE) (SEPP Housing s 97).
Section 108 of the SEPP Housing relevantly provides that the floor space ratio (FSR) of the development must not exceed 0.5:1. The proposed development meets all other relevant standards in this section but exceeds the FSR control with a proposed FSR of 0.59:1. A written request to vary this control has been filed with the application, pursuant to cl 4.6 of the Blacktown Local Environmental Plan 2015 (BLEP). This request demonstrates that compliance with the FSR standard is unreasonable and unnecessary because the proposed development meets the objectives of the standard, and of the zone. Further, in demonstrating that the exceedance of FSR will not result in any unreasonable amenity impacts, and will result in a building that complies with all established urban design principles under the relevant instruments, the applicant provides sufficient environmental planning grounds to vary the FSR standard.
The subject site is zoned R2 Low Density under the BLEP, within which development for the purposes of a seniors housing is permissible with consent. The proposed development is consistent with the objectives of this zone.
Demolition is permitted with consent under cl 2.7 of the Blacktown Local Environmental Plan 2015 (BLEP).
BLEP cl 4.3 sets a maximum height of 9m to the site, with which this development complies.
The application is accompanied by a Flood Study by CK Engineering Services dated April 2025, which demonstrates that the proposed development meets the flood planning requirements of s 5.21 of the BLEP.
The SEE confirms that the subject land has been utilised for residential purposes for many years and is within a suburban locality. From this, and from the amended architectural and stormwater drawings, I accept that all the essential services listed at BLEP cl 7.5 are available, or that adequate arrangements have been made to make them available when required
For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
Blacktown City Council, as the relevant consent authority, approves under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the amendment of development application DA-24-00714 in accordance with the following documents:
(a) Architectural plans:
| DA110 Issue B2 – Basement Design Floor Plan | Vourtzoumis Architects | 4/06/2025 | | DA111 Issue B2- Ground Design Floor Plan | Vourtzoumis Architects | 4/06/2025 | | DA112 Issue B2– First Floor Design Plan | Vourtzoumis Architects | 4/06/2025 | | DA113 Issue B2- Roof Design Plan | Vourtzoumis Architects | 4/06/2025 | | DA140 Issue B2 – Areas Calculation Table | Vourtzoumis Architects | 22/05/2025 | | DA141 Issue B2– GFA Calculation Plan – Basement Floor | Vourtzoumis Architects | 22/05/2025 | | DA142 Issue B2- GFA Calculation Plan – Ground Floor | Vourtzoumis Architects | 22/05/2025 | | DA143 Issue B2- GFA Calculation Plan – Level 01 | Vourtzoumis Architects | 22/05/2025 | | DA201 Issue B2– Proposed Floor Plan - Basement Floor– BLDG A & B | Vourtzoumis Architects | 10/06/2025 | | DA202 Issue B2 - Proposed Floor Plan - Basement Floor– BLDG C | Vourtzoumis Architects | 10/06/2025 | | DA203 Issue B2 – Proposed Floor Plan - Ground – BLDG A & B | Vourtzoumis Architects | 10/06/2025 | | DA204 Issue B2– Proposed Floor Plan - Ground - BLDG C | Vourtzoumis Architects | 10/06/2025 | | DA205 Issue B2 – Proposed Floor Plan – First Floor – BLDG A & B | Vourtzoumis Architects | 10/06/2025 | | DA 206 Issue B2 – Proposed Floor Plan – First Floor – BLDG C | Vourtzoumis Architects | 10/06/2025 | | DA207 Issue B2- Proposed Floor Plan - Roof – | Vourtzoumis Architects | 10/06/2025 | | DA208 Issue B2 – Proposed Roof Plan - BLDG C | Vourtzoumis Architects | 10/06/2025 | | DA311 Issue B2 – East & West Elevations | Vourtzoumis Architects | 4/06/2025 | | DA312 Issue B2– North & South Elevations | Vourtzoumis Architects | 4/06/2025 | | DA313 Issue B2– East & West Elevations – Building C | Vourtzoumis Architects | 4/06/2025 | | DA314 Issue B2 – East & West Elevations – Building C | Vourtzoumis Architects | 4/06/2025 | | DA411 Issue B2– Long Sections | Vourtzoumis Architects | 10/06/2025 | | DA412 Issue B2– Long Sections | Vourtzoumis Architects | 10/06/2025 | | DA413 Issue B2– Cross Sections | Vourtzoumis Architects | 10/06/2025 | | DA414 Issue B2 – Cross Sections | Vourtzoumis Architects | 10/06/2025 |
(b) BASIX Certificate
| Certificate | Dated | | BASIX Certificate No. 1752774M_02 | 08/10/2025 |
(c) Landscape Plans
| Plan | Drawn by | Dated | | DA 122 Issue B2 – Landscape Plan Overall | Irene Thanogiannis AILA | 22/05/2025 | | DA 122A Issue B2 – Landscape Plan Overall – Roof Top | Irene Thanogiannis AILA | 22/05/2025 | | DA 134 Issue B2 – Landscape Planting Schedule | Irene Thanogiannis AILA | 22/05/2025 |
(d) Stormwater Plans
| Plan | Drawn by | Dated | | Index, Issue 2. | C.K. Engineering Services | 16/04/2025 | | Stormwater Detail Plan, Issue 2. | C.K. Engineering Services | 16/04/2025 | | Basement, Issue 2. | C.K. Engineering Services | 16/04/2025 | | First Floor Plan, Issue 2. | C.K. Engineering Services | 16/04/2025 | | Roof Plan, Issue 2. | C.K. Engineering Services | 16/04/2025 | | On-Site Detention Tank Details, Issue 2. | C.K. Engineering Services | 16/04/2025 | | Pumpout Tank Details, Issue 2. | C.K. Engineering Services | 16/04/2025 | | Erosion and Sediment Control Plan, Issue 2. | C.K. Engineering Services | 16/04/2025 | | Catchment Plan, Issue 2. | C.K. Engineering Services | 16/04/2025 | | Landscape Area Longsections, Issue 2. | C.K. Engineering Services | 16/04/2025 |
(e) Other documents
| Plan | Drawn by | Dated | | Plan of Management | KV Operations (Balmoral St) Pty Ltd | May 2025 | | Preliminary Site Investigation | NEO Consulting | 16/05/2025 | | Letter of Service | Waste-Free (Aus) Pty Ltd | 22/11/2024 | | Operational Waste Management Plan | Elephants Foot | 16/04/2025 | | Waste Truck Access Letter | Varga Traffic Planning Pty Ltd | 2/09/2025 | | Design Certificate | C.K. Engineering Services | 16/04/2025 | | Flood Study | C.K. Engineering Services | April 2025 | | Site Contamination Specialist Review of Preliminary Site Investigation | Old Maple Pty Ltd | 16/05/2025 | | Geotechnical Investigation Report | Nepean Geotechnics | 14/03/2025 | | Clause 4.6 Variation – Floor Space Ratio | CSK Planning & Associates | 22/05/2025 |
The Court orders:
The applicant is to pay the respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $9,000 within 28 days of the date of these Orders.
The appeal is upheld.
Development consent is granted to Development Application DA/2024/00714 for demolition of all existing buildings and structures, tree removal, civil works and construction of a part 2 part 3 storey seniors housing development above a basement car park, in the form of an infill self-care housing, at Lots 93 and 94 in DP 291185 and Lot 347 in DP 238732, otherwise known as 99-101 Lock Street and 53 Pendant Avenue, Blacktown, subject to the conditions at Annexure A.
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Annexure A (390 KB, pdf)
McCulloch Street Developments Pty Ltd
Blacktown City Council [2025] NSWLEC 1791