SLR Consulting Australia Pty Ltd v Central Coast Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: NSW Department of Planning, Industry and Environment, Child Care Planning Guidelines, September 2021
Central Coast Council, Central Coast Development Control Plan 2022, August 2022

Category: Principal judgment

Parties: SLR Consulting Australia Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
A Whealy (Solicitor) (Applicant)
T Poisel (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Moray and Agnew Lawyers (Respondent)

File Number(s): 2025/105676

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by SLR Consulting Australia (the Applicant) against the deemed refusal of development application DA/1420/2024 by Central Coast Council (the Respondent). The development application, as amended, seeks consent for construction and use of a centre-based childcare facility for 73 children at 2 Orchid Way, Wadalba 2259.

2. 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 29 August 2025. I presided over the conciliation conference. At the conciliation conference the parties reached agreement in principle, and the conciliation was adjourned to allow the parties to prepare the relevant documentation and amendments to give effect to their agreement. The parties have continued discussions and have reached an agreement as to the resolution of the proceedings. The parties’ agreement is for the appeal to be upheld, the development application to be approved and for the Applicant to pay the Respondent’s costs pursuant to s 8.15(3) of the EPA Act as agreed or assessed. This agreement meets the first condition to the exercise of power and obligation of a Commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (“McMilan”) at [51].

3. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions: see McMillan at [51]. I form this state of satisfaction on the basis that:

4. The development application is lodged with the consent of the owners of the land. Further, the amended development application was accompanied by the adjoining landowner’s consent (Lot 51 DP 1280155). The requirements of s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) are satisfied.

5. The development application was notified by the Respondent from 4 to 28 October 2024. One submission was received. I am satisfied that the submission has been considered in the determination of the development application by either amendment to the application or by the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

6. Chapter 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the land. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. A detailed site investigation (DSI) has been prepared for the site which concludes that no contamination – related health risks exist on the site, and it is suitable for the proposed use of the site as a childcare centre. On this basis I am satisfied that the site will be suitable for the purpose of the development application.

7. Chapter 4 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the Central Coast local government area is listed at Sch 2 of SEPP BC. However, the provisions contained within s 4.9 of SEPP BC do not apply as there is no koala management plan in place and the site has an area of less than 1 hectare. I accept the agreement of the parties that the requirements of SEPP BC are satisfied.

8. The Education and Care Services National Regulation 2011 (Childcare Regulation) applies to the development application along with the Child Care Planning Guidelines issued by the NSW Department of Planning, Industry and Environment in 2021 (Child Care Guidelines). Pursuant to s 3.23 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), the consent authority must take into consideration any applicable provisions of the Child Care Guidelines before determining the application. The Statement of Environment Effects (SEE) accompanying the amended development application confirms that the proposed development complies with the non-discretionary standards for centre-based childcare facilities at s 3.26 of the SEPP TI. I accept the parties’ agreed submission that the development application complies with the relevant matters under the Child Care Guidelines and the Childcare Regulation, as demonstrated by the SEE.

9. I note that pursuant to cl 107 of the Childcare Regulation, education and care service premises must have at least 3.25 square metres of unencumbered indoor space per child. The proposed development complies with this clause.

10. Further, I note that pursuant to cl 108 of the Childcare Regulation, education and care service premises must have at least 7 square metres of unencumbered outdoor space per child. The proposed development complies with this clause.

11. The Central Coast Local Environmental Plan 2022 (LEP 2022) applies to the land. Pursuant to LEP 2022 the site is zoned E1 Local Centre and centre based child care centres are a land use permitted with consent in the zone. As required by cl 2.3 of LEP 2022, in determining the development application, I have given consideration to the objectives of the zone.

12. Pursuant to cl 7.6 of LEP 2022 a consent authority must be satisfied that the services essential to the development are available, or that adequate arrangements have been made to make them available when required. Based on the SEE, and the fact that there are existing sewer and water supply services to the site, I am satisfied of the matters in cl 7.6(2) of LEP 2022.

13. The Central Coast Development Control Plan 2022 (DCP 2022) applies to the site. The SEE filed with the application details the compliance of the proposed development with DCP 2022. In determining the development application, I have considered the provisions of the development control plan pursuant to s 4.15(1) of the EPA Act.

14. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act in s 34(3)(b) also requires me to “set out in writing the terms of the decision”.

15. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

6. The Court notes that the Respondent, as the relevant consent authority, has agreed, under ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021*,* to the Applicant amending Development Application No. DA/1420/2024 to include the documents set out below:

| TAB | DOCUMENT | DATE | | 1 | Schedule of Amendments, prepared by Point Architects | September 2025 | | 2 | (Amended) Architectural Plans, prepared by Point Architects: • CS000: Cover Sheet – Rev DA7 • SA001: Site Analysis – Rev DA5 – 1 August 2025 • SA002: Proposed Design Response – Rev DA4 - 1 August 2025 • SA003: Return and earn relocation plan – Rev DA1 - 1 August 2025 • TP100: Proposed Ground Floor Plan - Rev DA7 – 3 September 2025 • TP101: Proposed Roof Plan – Rev DA6 - 15 August 2025 • TP200: Proposed Elevation Sheet 1 – Rev DA5 – 1 August 2025 • TP201: Proposed Elevations Sheet 2 – Rev DA5 – 1 August 2025 • TP202: Proposed Fence Elevations Sheet 1 – Rev DA5 – 1 August 2025 • TP203: Proposed Fence Elevations Sheet 2 – Rev DA5 – 1 August 2025 • TP204: Proposed Signage Details – Rev DA5 – 1 August 2025 • TP300: Shadow Diagrams Sheet 1 – Rev DA5 – 1 August 2025 • TP301: Shadow Diagrams Sheet 2 – Rev DA5 – 1 August 2025 • TP302: Shadow Diagrams Sheet 3 – Rev DA5 – 1 August 2025 • TP400: Renders Sheet 1 – Rev DA5 – 1 August 2025 • TP401: Renders Sheet 2 – Rev DA5 – 1 August 2025 • TP402: Renders Sheet 3 – Rev DA5 – 1 August 2025 | Various dates | | 3 | Owner’s consent from 1 Figtree Boulevard Wadalba NSW 2259, legally known as Lot 51 DP1280155 | 19 June 2025 | | 4 | (Amended) Plan of Management, prepared by Oxanda: • Attachment 2 – Emergency Management Plan | 4 September 2025 | | 5 | (Amended) Waste Management Plan | 15 August 2025 | | 6 | (Amended) Landscape Plans, prepared by Urban Landscape Projects: • Cover Page • L-GI-01 – General Information Sheet • L-LP-01 – Landscape Concept Plan • L-RI-01 – Reference images • L-AD-01 – Landscape Area Diagram • L-CP-01 – Colour Schedule Plan • L-PP-01 – Planting Plan • L-SD-01 – Shade Diagram • L-SP-01 – Surfaces Plan • L-SS-01 – Services Set-Out Plan • L-DP-01 – Drainage Plan | 25 July 2025 (Rev E) | | 7 | Landscape Plans prepared by Site Image Landscape Architects: • DN 000: Landscape coversheet – Rev B – 3 September 2025 • DN 101: Landscape Plan – Rev B – 3 September 2025 • DN 501: Landscape Details – Rev A – 7 May 2025 | Various dates | | 8 | (Additional) Civil Engineering Plans prepared by Richmond + Ross: • C01 - Stormwater plan – Rev E • C02 - Erosion and Sediment Control Plan – Rev E • C03 - Erosion and Sediment Control Details – Rev A • C04 – Stormfilter Chamber Details – Rev A • C05 – Retaining Wall Details Sheet 1 of 2 – Rev A • C06 – Retaining Wall Details Sheet 2 of 2 – Rev A | Various dates | | 9 | (Additional) Traffic Expert Advice, prepared by SLR Consulting Pty Ltd | 5 August 2025 | | 10 | (Additional) Swept paths (Turn radius), prepared by SLR Consulting Pty Ltd: • Figure 01 – RCV – Rear Lift (10.5m Turn Radius) • Figure 02 – RCV – Front Lift (12.5m Turn Radius) | 8 July 2025 | | 11 | (Additional) Swept paths, prepared by SLR Consulting Pty Ltd: • Figure SK04 - Vehicle turn-around manoeuvring | 3 September 2025 | | 12 | (Additional) Survey Plan: • Sheet 1 of 3 • Sheet 2 of 3 • Sheet 3 of 3 | 12 November 2020 | | 13 | (Additional) Flood engineer statement prepared by Turnbull Engineering Pty Ltd | 18 July 2025 | | 14 | (Additional) BCA report, prepared by Certified Building Specialist | 22 July 2025 | | 15 | (Additional) Statement re water pump, prepared by ENTEC Consultants | 7 August 2025 | | 16 | (Additional) Structural Design Certificate, prepared by Richmond + Ross | 7 August 2025 | | 17 | (Additional) Letter consent for Return & Earn relocation, prepared by Tomra | - | | 18 | (Additional) Traffic Management Plan, prepared by 2EC Traffic | 15 September 2025 |

Orders

7. The Court orders that:

8. The appeal is upheld.

9. Development Application No. DA/1420/2024, as amended, for construction and operation of a Centre Based Child Care facility for 73 children and ancillary works at 2 Orchid Way, Wadalba 2259 and 1 Figtree Boulevard, Wadalba 2259 is determined by the grant of consent subject to the conditions at Annexure ‘A’.

10. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

.

D Dickson

Commissioner of the Court

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Annexure A (153 KB, pdf)

Annexure B (24.5 KB, pdf)

Annexure C (60.5 KB, pdf)