Raland Construction Pty Ltd v Penrith City Council

Category: Principal judgment

Parties: Raland Construction Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
D Johnson (Solicitor) (Respondent)
Solicitors:
Miller Prince (Applicant)
Penrith City Council (Respondent)

File Number(s): 2025/64770

Publication restriction: No

Judgment

Background

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s Modification Application seeking to modify DA20/0317 (Original Consent). The Original Consent was granted by the respondent on 10 December 2021 and approved the demolition of existing structures and construction of a two storey, 85 place child care centre including basement car parking, acoustic fence and landscaping on Lot 1 in Deposited Plan 1300642, known as 65 Castlereagh Street, Penrith (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Modification Application

3. The Modification Application (PAN-499566, Mod24/0254) was lodged with the respondent on 6 January 2025 pursuant to s 4.55(1A) of the EPA Act and sought to amend the Original Consent to:

4. increase the child care capacity from 85 to 91 placements;

5. relocate the acoustic barrier to integrate it with the rear boundary fence along the north-western boundary, involving a 600mm polycarbonate splay at a 45 degree angle extending into the outdoor play area and the splay being positioned above the 1.8m high solid barrier/fence line, resulting a total height of 2.4m; and

6. remove the shrubs along the north-west rear boundary and add five trees to the landscape plan.

7. On 18 February 2025, the applicant commenced these Class 1 proceedings under s 8.9 of the EPA Act in respect of the respondent’s deemed refusal of the Modification Application.

8. The proceedings were commenced within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

9. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 10 April 2025 and adjourned on one occasion. I presided over the conciliation conference.

10. During the conciliation process, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. An agreement was filed on 22 May 2025 following the applicant amending its Modification Application with the respondent’s agreement. Final documents were provided on 26 May 2025. The agreed amendments to the Modification Application primarily include amended landscaping plans and acoustic assessment (Amended Modification Application).

11. The decision agreed upon is for the grant of consent to the Amended Modification Application, subject to conditions of consent.

12. 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.

Jurisdictional considerations

10. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

11. The registered proprietors have provided their landowners’ consent to the lodgement of the Modification Application (see Class 1 Application, tab 2).

12. For the purposes of s 4.55(1A)(a) of the EPA Act, I am satisfied that the proposed modification is of minimal environmental impact on the basis that the Amended Modification Application primarily relates to an administrative increase in the overall child care placements by six children and the proposed physical changes are sufficiently minor that they will be of minimal environmental impact.

13. For the purposes of s 4.55(1A)(b) of the EPA Act, the development to which the Original Consent as modified relates is substantially the same development as the development for which the Original Consent was granted. I have formed this view for the following reasons as generally identified in the Revised Statement of Environmental Effects prepared by Think Planners dated 2 April 2025 (SEE) (at pp 19-20):

(a) the Amended Modification Application primarily relates to an administrative increase in the overall child care placements by six children; (b) the physical changes are limited to minor alterations to the outdoor play area and acoustic fencing associated with the child care centre as approved under the Original Consent; (c) the proposed minor changers will not be visible from the public domain; and (d) the bulk and scale of the building will remain the same as approved under the Original Consent.

4. In relation to s 4.55(1A)(c) of the EPA Act, the Modification Application as lodged was notified in accordance with the Penrith Community Engagement Strategy and Community Participation Plan between 24 January and 7 February 2025. No submissions were received during the notification period. The Amended Modification Application was not required to be re-notified.
5. Consequently, the requirements in s 4.55(1A)(d) of the EPA Act are not relevant.
6. For the purposes of s 4.55(3) of the EPA Act, the consent authority must take into consideration such of the matters referred to in s 4.15(1) as are of relevance and the reasons given by the consent authority for the grant of the consent that is sought to be modified.
7. Matters referred to in s 4.15(1) as are of relevance are considered below:

(a) The Subject Land is zoned R3 Medium Density Residential under the Penrith Local Environmental Plan 2010 (PLEP). The Amended Modification Application maintains the use of the Subject Land as a child care centre which is permissible with consent in the R3 zone. I confirm that I have had regard to the R3 zone objectives. The parties agree, and I accept, that relevant provisions of the PLEP have been considered at pp 54-56 of the SEE. (b) Chapter 3 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies to the proposed development. Relevantly:

(i) Section 3.23 of the TI SEPP requires the consent authority to consider the Child Care Planning Guideline (Guideline) when determining a development application. The parties agree, and I accept, that the matters for consideration under the Guidelines have been addressed in the SEE at pp 29-34. (ii) Section 3.26 of the TI SEPP sets out non-discretionary development standards for the purpose of ss 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) of the TISEPP provides the requirements for indoor or outdoor space. The parties agree, and I accept, that the Amended Modification Application provides at least 3.25m2 of unencumbered indoor play space and at least 7m2 of unencumbered outdoor play space, consistent with the requirements regs 107 and 108 of the Education and Care Service National Regulations.

(c) In respect of Ch 4 of State Environmental Planning Policy (Resilience and Hazards) 2021 regarding the remediation of land, I accept that the requirements of Ch 4 were addressed in the grant of the Original Consent (as per p 25 of the SEE).

8. In respect of the reasons given by the consent authority for the grant of the Original Consent, the parties agree and I accept that, the only reasons provided can be found on p 3 of the Original Consent. I confirm that the terms of the Original Consent have been considered in the determination of the Amended Modification Application.

Conclusion

11. 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.

12. The Court notes that the respondent, as the relevant consent authority, has agreed under s 113 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Modification Application Mod24/0254 in accordance with the following amended plans and documents:

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No. DA 02, Rev H | Site Plan | Envision Building Design Studio Pty Ltd | 15 May 2025 | | Drawing No. DA 03, Rev H | GA Plan – Basement | Envision Building Design Studio Pty Ltd | 15 May 2025 | | Drawing No. DA 04, Rev H | GA Plan – Ground Floor | Envision Building Design Studio Pty Ltd | 15 May 2025 | | Drawing No. DA 05, Rev H | GA Plan – First Floor | Envision Building Design Studio Pty Ltd | 15 May 2025 | | Drawing No. DA 06, Rev H | GA Plan – Roof | Envision Building Design Studio Pty Ltd | 15 May 2025 | | Drawing No. DA 07, Rev G | North/South Elevations | Envision Building Design Studio Pty Ltd | 25 March 2025 | | Drawing No. DA 08, Rev G | East/West Elevations | Envision Building Design Studio Pty Ltd | 25 March 2025 | | Drawing No. DA 09, Rev H | External Finishes Schedule | Envision Building Design Studio Pty Ltd | 15 May 2025 | | Drawing No. DA 10, Rev H | Fence Detail | Envision Building Design Studio Pty Ltd | 15 May 2025 | | Drawing No. DA 12, Rev H | Ground Floor Playspace Calculations | Envision Building Design Studio Pty Ltd | 15 May 2025 | | Drawing No. DA 13, Rev H | First Floo Playspace Calculations | Envision Building Design Studio Pty Ltd | 15 May 2025 | | Landscape Plans | | 2 | Drawing No. 2138.GD.01, Issue 6 | Landscape Plan – Ground Floor | Greenland Design Pty Ltd | 6 May 2025 | | Drawing No. 2138.GD.02, Issue 6 | Landscape Plan – First Floor | Greenland Design Pty Ltd | 6 May 2025 | | Drawing No. 2138.GD.03, Issue 6 | Landscape Details | Greenland Design Pty Ltd | 6 May 2025 | | Drawing No. 2138.GD.04, Issue 6 | Landscape Specification | Greenland Design Pty Ltd | 6 May 2025 | | Reports | | 3 | Revised Statement of Environmental Effects | Think Planners Pty Ltd | 2 April 2025 | | 4 | Acoustic Assessment | Day Design Pty Ltd | 4 April 2025 |

Orders

13. The Court orders that:

14. The appeal is upheld.

15. Development Consent DA20/0317 is modified in the terms at Annexure A.

16. Development Consent DA20/0317 as modified by the Court is set out in Annexure B.

N Targett

Commissioner of the Court

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Annexure A (161 KB, pdf)

Annexure B (314 KB, pdf)