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Cases Cited: Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline (September 2021)
Sutherland Shire Council, Community Engagement Strategy 2022-2026 (April 2022)
Sutherland Shire Development Control Plan 2015

Category: Principal judgment

Parties: Nadim Sam Nader (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
L Nurpuri (Applicant)
J Amy (Solicitor) (Respondent)
Solicitors:
Miller Prince (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2025/73692

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application 24/0672 seeking consent for the demolition of an existing swimming pool, front fencing, most building improvements and substantial “alterations and additions” to an existing single dwelling building, and change of use to a 43-children centre-based child care centre, including 7 at-grade car parking spaces and associated works (Proposed Development) at 9 Wilbung Road, Illawong legally described as Lot 26 in DP260229 (the Site).

2. The proceedings commenced on site which is located on the western corner of Wilbung Road and Black Close, Illawong. The DA as lodged was notified in accordance with the Sutherland Shire Community Engagement Strategy, 2022-2026, to adjoining and nearby owners and occupiers between 4 December 2024 and 13 January 2025. As a result of the public notification of the DA as lodged, Council received 1 petition with 47 signatures and 27 separate submissions, opposing the proposal. The Court heard from some objectors on Site at the hearing and was provided with a copy of all written submissions received by the Respondent in relation to the Proposed Development.

3. The Statement of Facts and Contentions (SOFAC) filed by the Respondent on 23 March 2025 (Ex 1) raised a number of contentions which were considered by various experts who reached substantial agreement as set out in the following Joint Expert Reports:

4. Traffic Joint Expert Report (Traffic JER) prepared by engineers, David Purvis-Smith for the Respondent and Ramy Selim for the Applicant filed 24 December 2025 (Ex 5);

5. Town Planning Joint Expert Report (Town Planning JER) prepared by Jason Perica for the Respondent and Jonathon Wood for the Applicant filed 19 December 2025 (Ex 6);

6. Landscape Joint Expert Report prepared by Amelia Brereton for the Respondent and Rebecca Surian for the Applicant filed 18 December 2025 (Ex 4); and

7. Stormwater Joint Expert Report prepared by David Purvis-Smith for the Respondent and Andrew Arida for the Applicant filed 18 December 2025 (Ex 3).

8. The Court was also assisted by the Town Planning Experts who prepared a summary of the objectors’ submissions and their responses (Ex 7).

9. Consistent with the agreements reached between the experts, the Applicant sought to amend the Development Application and the Court notes that the Respondent council as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to the DA to rely on the documents and plans comprising Exhibit B, specified as follows:

10. Addendum Statement of Environmental Effects (Addendum SEE) prepared by Think Planners Pty Ltd dated 17 December 2025;

11. Architectural Plans Revision J prepared by Baini Design dated 22 January 2026;

12. Schedule of Amendments Comparing Rev B to Rev J prepared by Baini Design;

13. Schedule of Amendments Comparing Rev I to Rev J prepared by Baini Design;

14. Landscaping Plans Revision H prepared by Outside Design Group Pty Ltd dated 28 January 2026;

15. Clause 4.6 Variation prepared by Think Planners Pty Ltd dated 15 December 2025;

16. Addendum Traffic and Parking Report – Post section 34 prepared by Hemanote Consultants Pty Ltd dated 22 January 2026;

(a) Further Addendum Traffic Report dated 12 February 2026 (Ex D);

8. Environmental Noise Impact Assessment prepared by Day Design Pty Ltd dated 20 January 2026;

9. Arboricultural Impact Assessment and Tree Management Plan prepared by Horticultural Management Services dated 3 October 2025;

10. Stormwater Drainage Plans prepared by Deboke Engineering Consultants dated 15 December 2025;

11. Civil Plans prepared by Deboke Engineering Consultants dated 15 December 2025;

12. Survey prepared by C&A Surveyors dated 22 November 2025;

13. Plan of Management dated 22 January 2026;

14. NQF Assessment prepared by Think Planners Pty Ltd dated 23 January 2026; and

15. Amended Waste Management Plan prepared by Dickens Solutions Pty Ltd dated February 2026.

16. Accordingly, the Proposed Development before the Court seeks consent for demolition of existing structures, and construction of a 2-3 storey child care centre development accommodating a total of 47 placements and on-site parking for 10 vehicles. The Applicant relies on the Addendum Statement of Environmental Effects prepared by Think Planners dated 17 December 2025 (Ex B, Tab 1).

17. In accordance with the agreements reached by the experts and the amended Proposed Development the parties entered into an agreement (Ex F) consenting to orders sought from the court upholding the appeal and granting development consent subject to conditions which are agreed and were tendered in court (Ex E). The Court is still required to evaluate the Proposed Development pursuant to s 4.15 of the EPA Act guided by the contentions raised in the SOFAC. I will address each of the contentions now giving my reasons why I conclude that development consent can be granted and orders made as sought by the parties.

Streetscape impacts and compatible with the character of the area (Contention 1)

8. Section 3.23 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) requires the consent authority to take into account the Child Care Planning Guideline 2021 (CCPG). Part 1.3 of the CCPG contains 4 planning objectives. Two of those objectives are:

9. Ensure that child care facilities are compatible with the existing streetscape, context and neighbouring land uses; and

10. Minimise any adverse impacts of development on adjoining properties and the neighbourhood, including the natural and built environment

11. Part 2 of the CCPG contains 7 Design Quality Principles and Part 3 of the CCPG relates to “Matters for Consideration”, in the assessment of DAs. The following objectives and controls are relevant to this Contention:

Objectives

• To ensure that the child care facility is compatible with the local character and surrounding streetscape

• To ensure clear delineation between the child care facility and public spaces

• To ensure that front fences and retaining walls respond to and complement the context and character of the area and do not dominate the public domain

• To ensure that the scale of the child care facility is compatible with adjoining development and the impact on adjoining buildings is minimised

• To ensure that setbacks from the boundary of a child care facility are consistent with the predominant development within the immediate context

• To provide landscape design that contributes to the streetscape and amenity

10. There is an explanation of the “Consideration of Local Character” in Part 3 of the CCPG (Page 13), which is relevant as is the Planning Principle relating to “compatibility with context” within Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [22]-[31].

11. The SOFAC lists the following key positive elements of the existing and desired future character of the area:

“• A strong and established front setback along Wilbung Avenue, particularly for this site and closest two sites to the west, but also more widely;

• Wide street/road verges which are predominantly landscaped with grass and trees/bushes, with interspersed driveways;

• A general lack of front fencing and generally an integration of front yards into the landscaped elements of the streetscape;

• A lack of overhead power lines;

• Differing building forms, styles and ages, although a predominance of two storey forms, face brick construction, neutral colours and pitched roof forms;

• Buildings which step down with the overall topography on the southern side of Wilbung Road, with a more consistent overall form on the southern side of Wilbung Road where it is flatter.

Of the above characteristics, the three most notable and desirable characteristics of the area are consistent front setbacks, integration of landscaped elements into the front yards of dwellings with a harmonious relationship with the street verges and wider landscaped setting of the public domain, and predominantly low or nonexistent front fencing.”

12. The Expert Town Planners gave the following written response to the concern raised by objectors as to “excessive scale and incompatible with character of the area/Visual impacts including elevated balconies/Overdevelopment of the site”:

“In terms of character elements, the significant changes to the plans and resulting components of design related to compliant setbacks (also consistent with western neighbours), improved streetscape elevations and interfaces, improved landscape setting and deep soil areas, pitched roof form, revised materials, changes in fencing including no front fence, improved proportions of fenestration, and stepping back of the upper level and balconies with landscaped edges to the first floor balconies result in acceptable proposal;

The proposed large, elevated balconies to the north and east are not a common element in the area. However their placement, stepping in plan, landscaped upper edges and composition within the design combine to result in an outcome which is not so discordant with the area as to warrant refusal;

The proposal complies with the maximum FSR standard and the various area requirements for the proposed children numbers meet State guidelines.”

13. For the reasons given by the town planning experts I find that Contention 1 is resolved.

The quantum, location and distribution of landscaping on the Site is adequate (Contention 2)

14. The Site is within a mapped area requiring a minimum of 35% of the site area as landscaped area, although cl 6.14(5) of the Sutherland Shire Local Environmental Plan 2015 (SSLEP) applies to a centre-based child care facility in a R2-zone and specifies the landscaped area may be a minimum of 25% of the site area. This development standard is satisfied by the Proposed Development because, as depicted in architectural drawing 1.0 dated 22 Jan 2026 Rev J it is demonstrated that 198 m2 or 30% landscaped area is provided.

15. The Landscape Experts agree that the revised landscape plans demonstrate a landscape setting in the front setback to Wilbung Road and Black close that is consistent with the desirable character of the area (Landscape JER at (10)) and that the secondary road frontage to Black Close is addressed in a way that can be supported (Landscape JER at (14-15)) and finally that the revised landscape plan provides opportunities for landscaping and natural infiltration of stormwater into the deep soil areas, thus protecting the qualities and character of the locality and enhancing the setting for the building which achieves the relevant objectives of the Sutherland Shire Development Control Plan 2015 (SSDCP).

16. There was some concern expressed by the objectors regarding the removal of a street tree. In that regard, I note that in the Landscape JER, Ms Brereton addresses the proposed removal of the street tree concluding that the removal of the tree for the installation of the proposed driveway is acceptable because the existing street tree (Eucalyptus sideroxylon) on Black Close is in a declining condition as outlined in the Tree Assessment Summary of the Arboricultural Impact Assessment and Tree Management Plan, prepared by Scott Freeman dated 3 October 2025, and because there will be replacement tree planting to offset the removal of the tree: Landscape JER at (27).

17. Accordingly, I find that Contention 2 is resolved.

Site planning (Contention 3)

18. Clauses 6.16 and 6.18 of the SSLEP apply to the proposal, relating to urban design considerations and I have referred to the agreement between the Town Planning Experts set out in the Town Planning JER.

19. The use is permissible in the zone, with consent pursuant to the Land Use Table of the SSLEP.

20. In particular, the Town Planning Experts agree that the site planning is acceptable in the context of urban design considerations in the SSLEP and the revised site planning result in an acceptable solution for the use, the surrounding context and characteristics of the area. The Town Planning Experts give the following reasons:

“- The design and amended proposal adopts a basement and semi-basement parking area off Black Close and removes the inappropriate at=grade parking area from Wilbung Road (as encouraged in the Contention);

- The setbacks are appropriate for the site and context, and landscaped and play space has been appropriately integrated with the building siting;

- The revised design is an acceptable response to the context and the topography of the land, while providing access to level play areas on a constrained site;

- The built form treatment is appropriate and generally steps down in form with the topography.” (Town Planning JER at (42))

21. Adopting the reasons of the Town Planning Experts, I find that Contention 3 is resolved.

Sufficient carparking (Contention 4) and Car park design (Contention 5)

22. The Town Planning Experts agree that the on-site parking requirement within the SSDCP is for one car space per 12 children, equating to 12 car spaces.

23. The proposed on-site basement parking level provides for ten (10) car spaces, including 5 visitor car parking spaces with one accessible car space and an adjacent shared zone and 5 staff car parking spaces (with all car spaces having a clear width of 2.6 metres), in addition to 3 bicycle storage spaces, and two (2) on-street car parking spaces that can be located directly in front of the subject site in Black Close and/or Wilbung Road.

24. The Proposed Development has a minor shortfall of two (2) on-site car parking spaces, however, the Town Planning Experts agree that the shortfall of 2 parking spaces on site is acceptable “having regard to the discretionary provisions of the DCP, including Part 35, Clause 3.2 which allows flexibility for reduced parking where a site benefits from characteristics such as corner lots and sites with frontage greter than 15 m in width, both of which apply for this site.” (Town Planning JER at (49))

25. Further, Mr Selim explains at par 6 of the Traffic JER, that the:

“proposed on-site & on-street parking provision is considered acceptable at this location, given the following:

Ample on-street parking opportunities in both Wilbung Road and Black Close.

The subject site has good access to existing bus services in the local area.

Chapter 35, 3.2 of Council’s DCP could allow for the provision for parking flexibility and reduced parking rates, for the subject site, given that the site is located on a corner block and can provide a safe drop-off and pick-up zone on the street (in Black Close) and has a street frontage greater than 15 metres with ample on-street parking availability in front of the site and the centre is going to operate as a long day care centre.”

26. Mr Purvis-Smith agrees that the arrangement is acceptable and at par 9 of the Traffic JER, that:

“the two on-street parking spaces can be located 1 each in Black Close and Wilbung Road, with conditions of consent to include the following as shown sketched below:

• Construction of a hardstand area for the single on street space in Black Close.

• ‘No stopping’ restrictions (line marking) on the corners of Black Close and Wilbung Road.”

27. The proposed levels and grades for the access driveway in Black Close have been revised to comply with Council’s Public Domain, as per the civil plans (driveway long sections) prepared by the applicant’s civil consultant - Deboke Engineering (Revision ‘6’ and dated 15/12/2025) (Ex B, Tab 11)

28. At par 16 the expert traffic engineers agree that the amended access driveway design and on-site parking layout is acceptable and resolves Contention 5.

29. For the reasons given by the Town Planning and Traffic Experts, I find that Contentions 4 and 5 are resolved.

Stormwater management (Contention 6)

30. The SOFAC expresses concern about the impacts of the Proposed Development on the existing stormwater pit. This contention is resolved because the driveway location has been relocated back to Black Close and therefore no longer impacts the existing stormwater infrastructure. (JER Stormwater, par 12)

31. The Stormwater Experts agree that from a stormwater perspective the arrangement detailed at par 24 of the Stormwater JER, allows for the formation of a crest above the kerb, preventing stormwater runoff from Black Close entering the Site and thereby providing an adequate stormwater solution.

32. For the reasons given by the Stormwater Experts, I find that Contention 6 is resolved.

Location of waste bins and main outdoor storage (Contention 7)

33. The Expert Town Planners agree that Contention 7 is resolved because the bin storage is amended to be located within the basement, with egress to Black Close, away from the neighbours and that garbage removal will be by commercial contractor arrangements and appropriate conditions are included in the agreed conditions of consent (Ex F): Town Planning JER at (54-55).

34. Accordingly, I find that Contention 7 is resolved.

Sufficient indoor play area (Contention 8)

35. The Architectural drawings show compliance with Ch 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 insofar as that they illustrate areas calculated for indoor and outdoor play areas and provide room layouts. The Expert Town Planners agree that this contention is resolved and set out the compliant calculations in the Town Planning JER at (58).

36. Therefore, I too am satisfied that Contention 8 is resolved.

Satisfaction of other jurisdictional prerequisites

37. The Applicant relies on a cl 4.6 written request prepared by Think Planners dated 15 December 2025 (Ex B, Tab 6) to justify the contravention of the maximum height of building (HOB) development standard of 8.5 m pursuant to 4.3 of the SSLEP. Proposed Development proposes a HOB of 8.45 m if using the extrapolated method or of 9.66 m using the Merman method of determining the ground level existing.

38. The Applicant acknowledges that a consent authority may adopt the approach outlined in Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582 when determining the ‘ground level (existing)’ beneath the proposed building and the cl 4.6 written request provides the extrapolated ground level analysis for contextual and explanatory purposes only.

39. As noted in the cl 4.6 written request, “only the upper roof portion of the proposed development, being the roof form and part of the lift-over-run exceeds the maximum building height control, owing to the excavated nature of the site through the southern portion in particular.”: cl 4.6 written request p 7.

40. The Court is satisfied that the cl 4.6 written request has adequately demonstrated that it is unreasonable or unnecessary to comply with the HOB development standard because the Proposed Development complies with the objectives of cl 4.3 of the SSLEP notwithstanding the contravention. The cl 4.6 written request similarly adequately demonstrates that there are sufficient environmental planning grounds that justify contravening the development standard, being grounds that are specific to the site.

41. The Site is within the Georges River water catchment which attracts the jurisdictional prerequisites in Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The SOFAC, at p 3, describes the Site as being “located close to the top of a ridge/plateau, generally formed by Wilbung Road, and is part of a catchment draining northward down to Georges River, approximately 800 km – 1 kilometre from the Site.”

42. The Stormwater Experts agree that the existing stormwater infrastructure will not be impacted because the driveway location has been relocated to Black Close (Stormwater JER at (12)).

43. The Applicant relies on the evidence of the Stormwater Experts and the Stormwater Drainage Plans (Ex B, Tab 10) to satisfy the terms of ss 6.6 (Water quality and quantity), 6.7 (Water ecology) and 6.8 (Flooding) of the Biodiversity and Conservation SEPP and I have reached the requisite state of satisfaction. This similarly satisfies the terms of cl 6.4(3) of the SSLEP regarding stormwater management. I have also taken into consideration the Addendum Statement of Environmental Effects (Addendum SEE) prepared by Think Planners dated 17 December 2025 (Ex B, Tab 1).

44. In consideration of potential contamination of the land of the Site, as the Site is occupied by an existing residential dwelling in a residential area, I am satisfied that there is no evidence before the court which would cause any concern regarding the Site being suitable for the intended use as a centre-based child care facility for the purpose of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

Orders:

45. The Court orders:

46. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the application as agreed or assessed.

47. The appeal is upheld.

48. Development consent is granted to development application 24/0672 for demolition of existing structures, and construction of a 2-3 storey child care centre development accommodating a total of 47 children and on-site basement parking for 10 vehicles with associated landscaping and works at 9 Wilbung Road, Illawong legally described as Lot 26 in DP260229 subject to the conditions of consent in Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A (585 KB, pdf)

Architectual Plans (27.4 MB, pdf)