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[2025] NSWLEC 1621
General information, not legal advice.
Land and Environment Court (NSW)
2025-08-29
Kullen AC
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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: PJM Baulkham Hills CC Pty Ltd v The Hills Shire Council [2025] NSWLEC 1621
Hearing dates: Conciliation Conferences on 12 February, 19 March, 9, 17 and 30 April, 9, 13 and 20 May 2025
Date of orders: 29 August 2025
Decision date: 29 August 2025
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders:
(1) 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 to the development application, in the agreed amount of $6,000, such amount to be paid within 28 days of the date of this order.
(2) The appeal is upheld.
(3) Development Application No. 453/2025/HA for the demolition of existing buildings and ancillary structures and construction of a 66 place child care centre and the removal of three trees on the land at 17 Hilda Road, Baulkham Hills, NSW 2153, legally known as Lot 1 DP 535295, is determined by the grant of consent subject to conditions included in Annexure A.
Catchwords: DEVELOPMENT APPEAL — conciliation conference — agreement between the parties — centre based child care facility — orders
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 4.46, 7, 8.7, 8.11, 8.15, Sch 1, Div 2 Land and Environment Court Act 1979 (NSW), s 34 Education and Care Services National Regulations (NSW) 2011, regs 107, 108 Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, Pt 3.3, ss 3.22, 3.23, 3.25, 3.26 The Hills Local Environmental Plan 2019, cll 2.2, 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 7.1, 7.2, 7.4, 7.7
Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline (September 2021)
Category: Principal judgment
Parties: PJM Baulkham Hills CC Pty Ltd (Applicant)
The Hills Shire Council (Respondent)
Representation: Counsel:
M Parrino (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Project Lawyers (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2024/398913
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 and s 8.11 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application No. 453/2025/HA (the DA) for the demolition of existing buildings and ancillary structures and construction of a 68 place childcare centre on the land at 17 Hilda Road, Baulkham Hills NSW 2153, legally known as Lot 1 in Deposited Plan 535295 (the site).
The DA was lodged with the Respondent on 18 September 2024. On 28 October 2024, the Applicant commenced these proceedings to appeal against the deemed refusal of the DA.
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 12 February 2025. I presided over the conciliation conference, which began with an on-site view. 14 submissions, including a petition with 42 signatures, had been made in response to the notification of the DA. A number of the submitters attended the s 34 conciliation conference and seven submitters made submissions to the Court.
The s 34 conciliation conference was adjourned to 19 March 2025 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. The s 34 conciliation conference was further adjourned a number of times to enable the parties to come to an agreement over amended plans for the proposed development.
Following a number of adjournments of the s 34 conciliation conference, the parties advised that they had reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.
A signed s 34 agreement with Annexure A was filed with the Court on 21 May 2025, with amended plans (the amended DA) as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.
The changes made to the DA (as advised by the parties) include:
Architectural Plans
(a) Reduction of children from 68 to 66; (b) Removal of 1 parking space; (c) Relocation of OSD from beneath driveway to the rear setback; (d) Increase of ground floor rear setback; (e) Revision of façade treatment; and (f) Increase acoustic barriers to 3.1m.
(a) Planting to the Zen garden has been added. This includes an area of ornamental pebbles with some low stone seats (as a passive retreat area); (b) The slide has been replaced with a low wood log play; and (c) The foot bridges have been deleted.
(a) The Car Park Compliance Review has been amended to include driveway ramp and accommodate the updated crest.
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. 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.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows below.
The parties advise that owner’s consent has been provided in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW).
The Applicant did not own the site at the date of the lodgement of the DA. The parties advise that the Applicant is now the owner of the site.
The Applicant has also procured the consent from the registered proprietor of 19 Doreen Crescent, Baulkham Hills having folio identifier 301/736662 (the Proprietor) burdened by a proposed easement to drain water from the subject site. The parties advise that the Proprietor’s consent has been obtained.
The parties advise that the DA was notified by the Respondent to adjoining properties between 19 September 2024 and 10 October 2024. 14 submissions were received during the notification period, including a petition with 42 signatures. The DA, as amended, was renotified by the Respondent from 14 to 28 April 2025.
The parties advise that the objections have been considered and addressed. In particular, the amended DA has further addressed potential noise impacts and tree impacts of the proposed development to the satisfaction of the Respondent.
The Hills Local Environmental Plan 2019 (the LEP) is the relevant environmental planning instrument that applies to the site; and
The site is zoned R2 Low Density Residential under cl 2.2 of the LEP;
Pursuant to cl 2.3 centre-based childcare facilities are permissible with consent in the R2 zone; and
I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.
Pursuant to cl 2.7 of the LEP, demolition is permissible with consent.
Pursuant to cl 4.3 of the LEP, the maximum height of buildings on the site is 9 metres. The parties advise that no part of the proposed built form encroaches the 9m building height limit.
Clause 4.4 of the LEP relates to floor space ratio (FSR). The parties advise that the proposed development is not subject to any FSR provision under the LEP, however the proposed development has a FSR of less than 0.5:1 in accordance with the requirements of s 3.25 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport SEPP) (Refer to para [35] below).
Clause 5.10 of the LEP relates to heritage conservation. The parties advise that the site is not identified as containing a heritage item and is not currently located within a Heritage Conservation Area.
Clause 5.21 of the LEP relates to Flood Planning. The parties advise that cl 5.21 does not apply as the site is not identified on the Flood Planning Map in the LEP as being within a Flood Planning Area.
Clause 7.1 of the LEP relates to Acid Sulfate Soils. The parties advise that the site is not identified as being potentially affected by Acid Sulfate Soils.
Clause 7.2 of the LEP sets out the matters that the consent authority is required to consider before granted development consent for earthworks. The parties advise that:
The proposal will result in an appropriate outcome given the nature of the development, the unique characteristics of the site and the proposed compliance with the relevant Council controls;
It is considered that the proposed excavation, particularly for the car parking area will have minimal adverse environmental or amenity impact;
The proposal will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability in the area;
It is considered unlikely due to the location of the site as well as previous development that excavation will lead to the disturbance of relics; and
The TPP Specifications sheet and Aborist Impact Assessment prepared by NSW Trees defines the area isolated from construction disturbances, it also prescribes where hand demolition of structures in the TPZ of trees will be stipulated.
Clause 7.4 of the LEP relates to Biodiversity. The parties advise that the site is not identified as containing significant terrestrial biodiversity and is not identified on the Terrestrial Biodiversity Map in the LEP.
Clause 7.7 of the LEP relates to Design Excellence. The parties advise that the proposed development does not involve the erection of a new building with a height of 25m or more, and that this clause is not relevant.
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and 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 the parties advise that the Court can be satisfied that consent can be granted because:
Given the historical use of the site for residential purposes, land contamination is not likely. The development site has historically been utilised for residential purposes with no known potential contaminating activities being conducted on site;
Contamination has been adequately addressed in the Preliminary Site Investigation prepared by EI Australia dated 4 September 2024, which found the site is suitable for the proposed development and land use; and
This is considered appropriate with no further investigation required.
The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site can be made suitable for the proposed development.
Chapter 3 of the Transport SEPP provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across the State. The provisions of Pt 3.3 of the Transport SEPP are relevant to development for the purposes of early education and care facilities such as in the proposed development.
Section 3.22 of the Transport SEPP applies to developments for the purpose of a centre-based child care facility if the floor area or outdoor space requirements do not comply with either regulations 107 or 108 of the Education and Care Services National Regulations (NSW) 2011 (the Education Regulation). If compliance is not reached, development consent must not be granted except with the concurrence of the Regulatory Authority.
The parties advise that:
The proposed development as amended is for a total of 66 children. The proposed development as amended provides for 253.7m2 of unencumbered internal space and 469.2m2 unencumbered outdoor space and thus complies with the Education Regulation.
On the basis that the proposed development as amended complies with the minimum unencumbered indoor and outdoor spaces, concurrence from the Regulatory Authority is not required.
Section 3.23 of the Transport SEPP requires that the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, before determining a development application. In respect of s 3.23, the Court is satisfied that adequate consideration has been given to the NSW Childcare Planning Guideline dated September 2021.
Section 3.25 of the Transport and Infrastructure SEPP provides that development consent must not be granted for the purposes of a centre-based child care facility in Zone R2 Low Density Residential if the FSR for the building on the site of the facility exceeds 0.5:1. The parties advise that the amended DA has a FSR less than 0.5:1, thus complying with this requirement.
Section 3.26(2) of the Transport and Infrastructure SEPP sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority from requiring more onerous standards for those matters, being non-discretionary development standards for the purposes of subss 4.15(2) and (3) of the EPA Act. The parties advise that the Court can be satisfied that all non-discretionary development standards in s 3.26 have been addressed.
The parties submit that the amended DA can be approved taking into consideration the matters in subs 4.15(1) of the EPA Act.
Having considered the advice of the parties provided above at [11]-[39], I am satisfied that:
The Applicant’s amended DA can be approved having regard to the matters in subss 4.15(1)(b) – (e) of the EPA Act;
The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and
Approval of the proposed development is in the public interest.
Further, 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 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.
The Court notes:
That The Hills Shire Council, as the consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to Development Application No 453/2025/HA made on 21 May 2025 to rely on the documents and plans specified below (the amended development application):
| 1. | Architectural Plans prepared by ArtMade Architects | | i. Cover Page, dwg no. DA00.00 | F | 10 April 2025 | | ii. Demolition Plan, dwg no. DA02.01 | A | 26 August 2024 | | iii. Site Plan, dwg no. DA02.02 | F | 10 April 2025 | | iv. Basement Floor Plan, dwg no. DA03.01 | F | 10 April 2025 | | v. Ground Floor Plan, dwg no. DA03.02 | F | 10 April 2025 | | vi. First Floor Plan, dwg no. DA03.03 | F | 10 April 2025 | | vii. Area Calculations, dwg no. DA03.04 | F | 10 April 2025 | | viii. External Elevations and Finishes, dwg no. DA04.01 | F | 10 April 2025 | | ix. Sections and Typical Details, dwg no. DA05.01 | F | 10 April 2025 | | x. Sections and Height Diagram, dwg no. DA05.02 | F | 10 April 2025 | | xi. Shadow Diagrams, dwg no. DA06.01 | F | 10 April 2025 | | xii. Views from Sun, dwg no. DA06.02 | F | 10 April 2025 | | xiii. Outdoor Play Area Solar/Shade Calcs, dwg no. DA06.03 | F | 10 April 2025 | | 2. | Stormwater Plans prepared by United Consulting Engineers | | i. Easement Drainage Plan, dwg no. 24MB9408/D01 | E | 8 April 2025 | | ii. Roof Drainage Plan, dwg no. 24MB9408/D02 | E | 8 April 2025 | | iii. First Floor Drainage Plan, dwg no. 24MB9408/D03 | E | 8 April 2025 | | iv. Ground Floor Drainage Plan, dwg no. 24MB9408/D04 | E | 8 April 2025 | | v. Basement Drainage Plan, dwg no 24MB9408/D05 | E | 8 April 2025 | | vi. OSD Drainage Details, dwg no. 24MB9408/D06 | E | 8 April 2025 | | vii. Music Results and Area Catchment Plan, dwg no. 24MB9408/D07 | E | 8 April 2025 | | 3. | Landscape Plans prepared by Conzept Landscape Architects | | i. Ground Floor, dwg no. 01 | F | 20 March 2025 | | ii. Ground Floor, dwg no. 02 | F | 20 March 2025 | | iii. First Floor, dwg no. 03 | F | 20 March 2025 | | iv. Area Calculations, dwg no. 04 | F | 20 March 2025 | | v. Sample Images, dwg no. 05 | F | 20 March 2025 | | vi. Planting Palettes, dwg no. 06 | F | 20 March 2025 | | vii. Section A, dwg no. 07 | F | 20 March 2025 | | viii. Section B, dwg no. 08 | F | 20 March 2025 | | ix. Details 1, dwg no. 09 | F | 20 March 2025 | | x. Details 2, dwg no. 10 | F | 20 March 2025 | | xi. Details 3, dwg no. 11 | F | 20 March 2025 | | xii. Details 4, dwg no. 12 | F | 20 March 2025 | | xiii. Specification, dwg no. 13 | F | 20 March 2025 | | 4. | Arboricultural Impact Assessment prepared by NSW Trees | D | 18 March 2025 | | 5. | Plan of Management prepared by Think Planners | - | 18 March 2025 | | 6. | TPP Specifications prepared by NSW Trees | - | 18 March 2025 | | 7. | Tree Protection Plan Drawing prepared by NSW Trees | - | 18 March 2025 | | 8. | Amended Environmental Noise Impact Assessment prepared by Day Design Pty Ltd | D | 9 April 2025 | | 9. | Car Park Compliance Review prepared by Stanbury Traffic Planning | V3 | 10 April 2025 | | 10. | Groundwater Seepage Analysis prepared by EI Australia | - | 7 February 2025 | | 11. | Statement of Environmental Effects prepared by Think Planners | - | 28 February 2025 | | 12. | Stormwater letter prepared by United Consulting Engineers | - | 28 February 2025 | | 13. | Manhole Clearance Letter | - | 13 February 2025 | | 14. | Owners Consent Letter | - | 2 April 2025 |
The Court orders:
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 to the development application, in the agreed amount of $6,000, such amount to be paid within 28 days of the date of this order.
The appeal is upheld.
Development Application No. 453/2025/HA for the demolition of existing buildings and ancillary structures and construction of a 66 place child care centre and the removal of three trees on the land at 17 Hilda Road, Baulkham Hills, NSW 2153, legally known as Lot 1 DP 535295, is determined by the grant of consent subject to conditions included in Annexure A.
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Annexure A.763 KB.pdf
PJM Baulkham Hills CC Pty Ltd
The Hills Shire Council [2025] NSWLEC 1621