Principal Healthcare Finance Pty Limited v Penrith City Council

Cases Cited: Principal Healthcare Finance Pty Limited v Penrith City Council [2023] NSWLEC 1462

Category: Principal judgment

Parties: Principal Healthcare Finance Pty Limited (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
C Collett (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2024/425480

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a modification application appeal filed directly to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 197**9 (EPA Act) to DA21/0607 (LEC 2023/65908) at 94-100 Explorers Way, St Clair for a two storey residential care facility and ancillary works. The modification application seeks to make changes to plant/services on the site including roof top plant, services in the front setback and removal of general terms of approval.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 28 March 2025. I presided over the conciliation conference.

3. The respondent has approved under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the applicant amending MOD24/0223 in accordance with the documents listed below (amended application):

| DOCUMENT | AUTHOR | REV | DATE | | Architectural Plans | | DA0.20 – Site Plan | Custance | G | 10.03.2025 | | DA1.20 – Ground Floor Plan | Custance | H | 10.03.2025 | | DA1.21 – Level 1 | Custance | F | 10.03.2025 | | DA1.22 – Roof Plan | Custance | F | 10.03.2025 | | DA3.00 – External Elevations 1 | Custance | F | 10.03.2025 | | DA3.01 - External Elevations 1 | Custance | F | 10.03.2025 | | DA3.10 – Building Sections | Custance | E | 23.10.2024 | | DA3.11 – Building Sections | Custance | E | 23.10.2024 | | DA5.20 – 3D Isometric View | Custance | E | 10.03.2025 | | DA5.21 – 3D Isometric View (8.5M Height Plane) | Custance | D | 23.10.2024 | | DA12.10 – Perspective Views | Custance | C | 09.06.2023 | | Landscape Plans | | LA100 – Landscape Master Plan | TaylorBrammer | J | 03.03.2025 | | SK309 – Services Enclosure | TaylorBrammer | D | 03.03.2025 |

4. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court granting the modification application and modifying the development consent. Accompanying the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

5. 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 Prerequisites

6. 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. With consideration of the agreed jurisdictional note and documentation within the Class 1 Application, 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. This is set out below.

7. I am satisfied that owners consent accompanied the modification application (s 98 of the EPA Reg).

8. I have considered the documentation within the amended application and the parties’ agreed jurisdictional statement. I accept the parties’ agreement that the proposed modifications to the service areas, planters, pergolas and general terms of approval are substantially the same as the original development for the reasons set out in the Statement of Environmental Effects prepared by BBC Consulting Planners (SEE) and jurisdictional statement (s 4.55(2)(a) of the EPA Act).

9. With respect to s 4.55(2)(c) and (d) of the EPA Act, the modification application was notified between 9 December 2024 and 13 January 2025. No submissions were received. The amended application was notified to the NSW Rural Fire Service who granted General Terms of Approval. The jurisdictional statement sets out that the site is no longer mapped as being on bushfire prone land and therefore no longer requires any General Terms of Approval. The parties advised that there was no objection received from NSW Rural Fire Service (s 4.55(2)(c) of the EPA Act).

10. The parties agree and I accept that the provisions required to be addressed by ss 4.55(2) and 4.15 of the EPA Act have been met as evidenced in the documentation accompanying the Class 1 appeal and supported by the jurisdictional statement. I accept that there are no material changes that affect compliance with the suite of planning controls with the exception of height. I accept the parties’ agreement that the increased height by 915mm for the hot water tanks to a maximum of 10.755m is appropriate. I note that pursuant to Sch 7A cl 2(1)(da), the parties agree that State Environmental Planning Policy (Housing) 2021 does not apply and State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 continues to apply.

11. I have considered the reasons for the grant of consent, noting that the original consent was also an agreement between the parties and the reasons are limited to jurisdiction (see: Principal Healthcare Finance Pty Limited v Penrith City Council [2023] NSWLEC 1462 (s 4.55(3) of the EPA Act).

Conclusion

12. 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.

13. 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.

14. 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.

Orders

15. The Court orders:

16. The Applicant is granted leave to amend Modification Application MOD24/0223 in accordance with the plans and documents referred to in the Amended Application.

17. The modification application made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 is determined by way of approval.

18. Development Consent No. DA21/0607 is modified in the terms in Annexure A.

19. Development Consent No. DA21/0607 as modified by the Court is Annexure B.

S Porter

Commissioner of the Court

Annexure A

Annexure B

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