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[2025] NSWLEC 1274
General information, not legal advice.
Land and Environment Court (NSW)
2025-04-30
Porter 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: Pam Ventures Pty Ltd v Blacktown City Council [2025] NSWLEC 1274
Hearing dates: Conciliation conference 15 April 2025
Date of orders: 30 April 2025
Decision date: 30 April 2025
Jurisdiction: Class 1
Before: Porter C
Decision: The Court orders:
(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 thrown away as a result of the Applicant being allowed to rely upon the Amended Development Application in the amount of $10,000 payable within 28 days of the date of these Orders.
(2) The appeal is upheld.
(3) Development Application DA-24-00068, as amended, for the removal of trees, demolition of all existing structures and construction of a two-storey centre-based child care facility to accommodate 62 places and associated landscaping and acoustic barriers/fencing on Lots 12 & 13 DP2161, being 95-97 Peter Street, Blacktown, is determined by the grant of consent subject to the conditions set out in Annexure ‘A’.
Catchwords: DEVELOPMENT APPEAL – centre-based child care centre – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15
Land and Environment Court Act 1979, s 34
Blacktown Local Environmental Plan 2015, cll 2.3, 2.7, 4.3, 7.5
Education and Care Services National Regulations
Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.26
State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6
Category: Principal judgment
Parties: Pam Ventures Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation: Counsel:
L Raffaele (Solicitor) (Applicant)
G McKee (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Bartier Perry Lawyers (Respondent)
File Number(s): 2024/219689
Publication restriction: Nil
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of DA-24-00068 for tree removal, demolition of existing buildings and, construction of a two (2) storey child care facility with basement parking (DA) at 95-97 Peter Street, Blacktown (Lots 12 and 13, Section B, DP 2161) (site).
The proceedings commenced as a hearing on 15 April 2025. On the basis of the joint expert reports, amended plans and further information, the parties advised the Court that there were no remaining issues, and a conciliation conference was requested. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 15 April 2025. I presided over the conciliation conference.
The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-24-00068 in accordance with the documents listed below:
| Reference/ DWG No | Title/Description | Revision | Prepared by | Date | | Architectural Plans: | | 1 | Compliance Table, Location Plan | E | Baini Design | 19/02/2025 | | 2 | Location Analysis Plan | E | Baini Design | 19/02/2025 | | 3 | Site Analysis Plan | E | Baini Design | 19/02/2025 | | 4 | Shadow Diagrams | E | Baini Design | 19/02/2025 | | 5 | Shadow Diagrams | E | Baini Design | 19/02/2025 | | 6 | Site Plan and Demolition Plan | E | Baini Design | 19/02/2025 | | 7 | Basement Plan | E | Baini Design | 19/02/2025 | | 8 | Ground Floor Plan | E | Baini Design | 19/02/2025 | | 9 | First Floor Plan | E | Baini Design | 19/02/2025 | | 10 | Roof Plan | E | Baini Design | 19/02/2025 | | 11 | Elevations, Section | E | Baini Design | 19/02/2025 | | 12 | Elevations | E | Baini Design | 19/02/2025 | | 13 | Rain Water Tank Details | E | Baini Design | 19/02/2025 | | 14 | Callout Elevations | E | Baini Design | 19/02/2025 | | 15 | Kitchen and Laundry Details | E | Baini Design | 19/02/2025 | | 16 | Typical Nappy Change | E | Baini Design | 19/02/2025 | | 17 | Typical Bottle Prep Detail | E | Baini Design | 19/02/2025 | | 18 | Typical Craft Bench Detail | E | Baini Design | 19/02/2025 | | 19 | Schedule of Finishes | E | Baini Design | 19/02/2025 | | 20 | Solar Access Plans | E | Baini Design | 19/02/2025 | | 21 | Outdoor Calc. Plan – Ground Floor | E | Baini Design | 19/02/2025 | | 22 | Outdoor Calc. Plan – First Floor | E | Baini Design | 19/02/2025 | | 23 | Indoor Calc. Plan – 0-2 | E | Baini Design | 19/02/2025 | | 24 | Indoor Calc. Plan – 2-3 | E | Baini Design | 19/02/2025 | | 25 | Indoor Calc. Plan – 3-5 | E | Baini Design | 19/02/2025 | | 26 | Fencing Detail – Ground Floor | E | Baini Design | 19/02/2025 | | 27 | 3D Perspectives | E | Baini Design | 19/02/2025 | | 28 | Streetscape Elevation | E | Baini Design | 19/02/2025 | | 29 | Accessible Details – Basement Floor | E | Baini Design | 19/02/2025 | | 30 | Accessible Details – Ground Floor | E | Baini Design | 19/02/2025 | | 31 | Accessible Details – First Floor | E | Baini Design | 19/02/2025 | | Civil Engineering Plans: | | 000 | Cover Sheet, Notes and Legend | F | Telford Civil | 31/10/2024 | | 101 | Stormwater Concept Plan, Basement Level, Sheet 1 of 2 | F | Telford Civil | 31/10/2024 | | 102 | Stormwater Concept Plan, Basement Level, Sheet 2 of 2 | F | Telford Civil | 31/10/2024 | | 103 | Stormwater Concept Plan Ground Level | F | Telford Civil | 31/10/2024 | | 104 | OSD Catchment Plan & Level 1 Plan | F | Telford Civil | 31/10/2024 | | 105 | RWT Catchment Plan and Node Water Balance | F | Telford Civil | 31/10/2024 | | 106 | On-Site Detention Details and Calculation Sheets | F | Telford Civil | 31/10/2024 | | 107 | Rainwater Tank Details | F | Telford Civil | 31/10/2024 | | 108 | Miscellaneous Details Sheet | F | Telford Civil | 31/10/2024 | | 109 | Long Section & Miscellaneous Details | F | Telford Civil | 31/10/2024 | | Proposed Bulk Earthworks Plan: | | C000 | General Notes, Locality Plan and Drawing Schedule | A | Telford Civil | 18/03/2025 | | C100 | Bulk Earthworks Layout Plan | A | Telford Civil | 18/03/2025 | | C200 | Typical Cross Sections | A | Telford Civil | 18/03/2025 | | Landscape Plans: | | 01 | Landscape Concept | G | Outside In | 21/03/2025 | | Proposed Driveway Longsections: | | HC671-2324-1 | Proposed Driveway Longsection Sheet No. 1/6 | - | Hemanote Consultants | 20/03/2025 | | HC671-2324-2 | Proposed Driveway Longsection Sheet No. 2/6 | - | Hemanote Consultants | 20/03/2025 | | HC671-2324-1 | Proposed Driveway Longsection Sheet No. 3/6 | - | Hemanote Consultants | 20/03/2025 | | HC671-2324-1 | Proposed Driveway Longsection Sheet No. 4/6 | - | Hemanote Consultants | 20/03/2025 | | HC671-2324-1 | Proposed Driveway Longsection Sheet No. 5/6 | - | Hemanote Consultants | 20/03/2025 | | HC671-2324-1 | Proposed Driveway Longsection Sheet No. 6/6 | - | Hemanote Consultants | 20/03/2025 | | Report: | | Name | Prepared by | Date | | Arboricultural Impact Assessment and Tree Management Plan | Horticultural Management Services | 20/03/2025 | | Environmental Noise Impact Assessment | Dat Design Pty Ltd | 21/03/2025 | | Plan of Management | - | 24/03/2025 |
As part of the conciliation conference process the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent under s 4.16 of the EPA Act.
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. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.
I am satisfied that owners consent accompanied the DA as provided in the Class 1 Application in tab 1. The Respondent notified the DA from 19 March 2024 to 4 April 2024. Seven submissions were received.
At the commencement of the hearing, the Court and parties heard the oral concerns from two objectors, who helped the parties better understand the concerns raised. As the parties have entered into an agreement, the Court’s role is limited in considering the issues raised to legal matters. In reaching agreement, the parties have advised the Court that they have considered the merit concerns raised in the written and oral objections.
The subject site is zoned R3 Medium Density Residential, where the proposed use for a centre-based child care facility is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 demolition permits demolition with consent, as sought by the amended DA.
Clause 4.3 height of buildings applies and allows a maximum of 10m. The Architectural Plans prepared by Baini Design (architectural plans) demonstrate that the amended proposal is below 10m.
Clause 7.5 essential services applies to the proposed development. I accept that all listed services are available (existing sewer, water supply, electricity and sewer) or that adequate arrangements have been made (proposed vehicular access and stormwater management system) as stated in the Statement of Environmental Effects (SEE) and shown in the amended DA documentation.
The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site in relation to contamination. The amended DA is accompanied by a Preliminary Environmental Site Investigation (PSI) prepared by Environmental Consulting Servies in relation to the proposed use.
The PSI concludes that the site has been used for residential purposes, that there was no reason to suspect the site was contaminated and that the site is suitable for the proposed use. Conditions of consent have been recommended for the demolition and construction phase, which have been included in Annexure A. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.
Chapter 3 Educational establishments and childcare facilities of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the proposed development.
The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by s 3.22 and 3.26 of SEPP TI as shown on the architectural plans and outlined in the jurisdictional statement. Further, based on the agreed submissions from the parties in the detailed jurisdictional statement (paragraphs 42-53) and SEE, I have considered the provisions of ss 3.22, 3.23, 3.26, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that these matters have been addressed.
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.
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.
I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.
The Court orders:
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent thrown away as a result of the Applicant being allowed to rely upon the Amended Development Application in the amount of $10,000 payable within 28 days of the date of these Orders.
The appeal is upheld.
Development Application DA-24-00068, as amended, for the removal of trees, demolition of all existing structures and construction of a two-storey centre-based child care facility to accommodate 62 places and associated landscaping and acoustic barriers/fencing on Lots 12 & 13 DP2161, being 95-97 Peter Street, Blacktown, is determined by the grant of consent subject to the conditions set out in Annexure A.
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Pam Ventures Pty Ltd
Blacktown City Council [2025] NSWLEC 1274