South Wentworthville Childcare Holdings Pty Ltd v Penrith City Council

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

Texts Cited: NSW, Child Care Planning Guideline, September 2021

Category: Principal judgment

Parties: South Wentworthville Childcare Holdings Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
E Fleming (Solicitor) (Applicant)
D Le Breton (Solicitor) (Respondent)
Solicitors:
Macpherson Kelley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2025/168927

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application DA24/0729 (DA) by Penrith City Council (Council). The DA, as amended, seeks consent for demolition of existing structures, tree removal and construction of a child care centre for 90 children with at grade parking, signage and associated works at 124-126 Explorers Way, St Clair (site).

Conciliation and agreement between the parties

2. This matter was listed for a conciliation conference on 19 September 2025. I was appointed to preside. After more time was given, the parties have now advised that they have come to 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 consent to the DA, as amended, in accordance with agreed conditions.

Pre-requisites to the exercise of the function to grant development consent

3. Under s 34(3) of the Land and Environment Court Act 1979 (NSW) (LEC Act), I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. Rather than a consideration of the merits of the position agreed by the parties, the point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [62]-[65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' statement of jurisdictional prerequisites received by the court on 13 November 2025 (SJP).

State Environmental Planning Policy (Transport and Infrastructure) 2021

4. Chapter 3 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) relates to child care centre proposals. Of jurisdictional relevance is s 3.22, concerning indoor and outdoor unencumbered space requirements. I accept the advice of the parties that the DA, as amended, complies with reg 107 (indoor unencumbered space requirements) and reg 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations 2011. Therefore, the parties agree, and I accept, that no concurrence from the relevant regulatory authority is required. Relating to s 3.23, I also note the agreed advice of the parties that the applicable provisions of the Child Care Planning Guideline (CCPG) have been taken into consideration and addressed in the DA, as amended.

State Environmental Planning Policy (Resilience and Hazards) 2021

5. Section 4.6(1) provides that a consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) 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

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

6. The parties argue that I can be satisfied with respect to s 4.6(1). They advise that the DA is accompanied by a Detailed Site Investigation which indicates the site has low potential for significant contamination and that the site can be made suitable for the proposed development provided certain recommendations are adopted, which have been incorporated into agreed consent conditions. On the basis of the parties’ advice and proposed consent conditions, I am satisfied as to the matters set out in s 4.6(1).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

7. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the proposed development as the site is located within the Hawkesbury-Nepean Catchment. In relation to Part 6.2 of Ch 6, there are requirements for consideration of the consent authority, as well certain findings of satisfaction, in this instance by the Court. The parties’ SJP works through the various considerations and findings of satisfaction with respect to: s 6.6(1) in relation to water quality and quantity and s 6.7(1) in relation to aquatic ecology. The parties argue that I should be satisfied with respect to each of the relevant provisions at s 6.6(2) and s 6.7(2). The basis for this conclusion of the parties is the technical material accompanying the DA. In particular, the amended stormwater plans prepared by Telford Civil Pty Ltd dated 2 September 2025 and 24 October 2025 accompanying the amended DA material at Tab 3 of Note 2 of the s34 Agreement documentation which has been provided to the Court. I accept this advice and am satisfied with respect to each of the relevant provisions at s 6.6(2) and s 6.7(2) of the Biodiversity and Conservation SEPP.

8. In relation to the matters in s 6.8, the parties advise the site is not located on flood liable land. In relation to the matters in s 6.9, the parties advise that the site is not located near any natural waterbodies or foreshores and I am satisfied the proposal will have no impact on any public access to recreational land uses. In turn I am satisfied with respect to the matters at s 6.9(2). In relation to section 6.10, I accept that the proposed development is not likely to have an adverse environmental impact on any adjacent or downstream local government areas.

Penrith Local Environmental Plan 2010

9. The site is zoned part R2 Low Density Residential under applicable Penrith Local Environmental Plan 2010 (PLEP). There is no dispute that the proposed development is permissible on the site.

10. I note the parties’ advice that they believe the proposal is consistent with the zone objectives for the R2 zone.

11. The parties further advise that the proposal does not breach any development standards.

12. Clause 7.30 is concerned with urban heat and is applicable in this instance. Subclause (3) provides that:

Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that planning and design measures are incorporated to reduce the urban heat island effect that—

(a) maximise green infrastructure, and

(b) retain water in the landscape, and

(c) use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and

(d) use building, paving and other materials that minimise heat impacts, and

(e) reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources.

13. The parties are satisfied with respect to cl 7.30(3) and make reference to the “ESD Report”, accompanying the s 34 agreement documentation provided to the Court, which according to the parties addresses the relevant particulars. I too have reviewed this documentation which was found at Tab 14 of the s 34 agreement documentation. I found the documentation adequately addresses the relevant requirements. In turn, I am satisfied that planning and design measures are incorporated in the proposal to reduce the urban heat island effect having regard to each of the points (a)-(e) as nominated.

14. Clause 7.7 relates to servicing and requires a jurisdictional finding of satisfaction. The parties advise that water, electricity, sewage, stormwater drainage, and vehicular access will be available at the site when required. I am satisfied with respect to cl 7.7.

15. There are a number of other provisions of PLEP which require “consideration” by a consent authority, but not jurisdictional findings of the Court in this instance: McMillan at [62]-[65]. The parties have advised of their relevant consideration and positive findings with respect to: cll 7.1 (relating to earthworks), 7.4 (relating to sustainable development), 7.6 (relating to salinity).

Other matters

16. The parties advise that the DA was placed on public notification to surrounding residents and that a series of objecting submissions have been received. There is a requirement for a consent authority to take into consideration these objecting submissions under s 4.15(1)(d) of the EPA Act. I note the advice of Council that this has occurred. Council's position, with which the applicant agrees, is that objecting submissions have been adequately considered and addressed in DA documentation.

17. The parties advise that the amended DA either complies with the relevant controls in Penrith Development Control Plan or that sufficient justification has been provided in relation to any non-compliances.

18. I am advised that at the date of lodgement of the DA, the site was mapped bushfire prone land. The DA was accordingly marked as an application for integrated development and was referred to the Rural Fire Service (RFS) under the Rural Fires Act 1997 (NSW). General terms of approval were received by Council from RFS on 22 November 2024. However, Council published an updated bushfire prone land map certified by RFS on their website on 17 December 2024. The site is no longer mapped as bushfire prone land in accordance with the updated map. As a result, approval is no longer required from RFS for the proposed development. The parties advise the amended DA is therefore not for integrated development.

Conclusion

19. With the above findings, I am satisfied that the jurisdictional prerequisites have been met, and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

20. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. Subsection 34(3)(b) of The LEC Act also requires me to “set out in writing the terms of the decision”. The final orders have this effect.

Notation

21. The Court notes that the Respondent has approved, as the relevant consent authority, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA24/0729 to rely upon the following amended documents (Amended Development Application), as filed with the Court:

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No: DA01 Revision H | Site Plan/Tree Plan | ON Architecture | 4 November 2025 | | Drawing No: DA02 Revision H | Proposed Ground Floor Plan | 4 November 2025 | | Drawing No: DA03 Revision H | Demolition Floor Plan | 4 November 2025 | | Drawing No: DA04 Revision H | Roof Plan | 4 November 2025 | | Drawing No: DA05 Revision H | Elevations | 4 November 2025 | | Drawing No: DA06 Revision H | Overshadowing Diagram | 4 November 2025 | | Drawing No: DA07 Revision H | 3D Visualization | 4 November 2025 | | Drawing No: DA08 Revision H | Sections | 4 November 2025 | | Drawing No: DA09 Revision H | Signage/Fencing Details | 4 November 2025 | | Drawing No: DA10 Revision H | Emergency Evacuation Floor Plan | 4 November 2025 | | Drawing No: DA11 Revision H | Ground Marking Plan | 4 November 2025 | | Drawing No: DA12 Revision H | First Marking Plan & Door Schedule | 4 November 2025 | | Drawing No: DA13 Revision H | Window Schedule (Ground) | 4 November 2025 | | Drawing No: DA14 Revision H | Window Schedule (First) & GFA Plan | 4 November 2025 | | Drawing No: DA15 Revision H | Internal Elevations - Child WC 01 | 4 November 2025 | | Drawing No: DA16 Revision H | Internal Elevations - Prep/Store 01 | 4 November 2025 | | Drawing No: DA17 Revision H | Internal Elevations - Child WC 02 | 4 November 2025 | | Drawing No: DA18 Revision H | Internal Elevations - Child WC 03 | 4 November 2025 | | Drawing No: DA19 Revision H | Activity 03 - Joinery | 4 November 2025 | | Drawing No: DA20 Revision H | Activity 04 - Joinery | 4 November 2025 | | Drawing No: DA21 Revision H | Activity 05 - Joinery | 4 November 2025 | | Drawing No: DA22 Revision H | Activity 06 - Joinery | 4 November 2025 | | Drawing No: DA23 Revision H | Kitchen | 4 November 2025 | | Landscape Plans | | 2 | Drawing No. 01 Issue F | Landscape Concept | Outside In Design Group | 5 November 2025 | | Drawing No. L-02 Issue F | Existing Street Trees + Plant Schedule | 5 November 2025 | | Drawing No. L-03 Issue F | Tree Shadow Study 22 Dec - Summer Solstice | 5 November 2025 | | Drawing No. L-04 Issue F | Tree Shadow Study 30 June - Winter Solstice | 5 November 2025 | | Engineering Plans | | 3 | Drawing No. 000 Issue A | Cover Sheet Plan | Telford Civil | 2 September 2025 | | Drawing No. 101 Issue C | Stormwater Concept Plan Ground Level | 24 October 2025 | | Drawing No. 102 Issue B | On-Site Detention Details and Calculations Sheet 1 of 2 | 8 October 2025 | | Drawing No. 103 Issue A | On-Site Detention Details and Calculations Sheet 2 of 2 | 2 September 2025 | | Drawing No. 104 Issue C | WSUD Catchment Plan and Music Results | 24 October 2025 | | Drawing No. 105 Issue C | Water Re-Use, Node Water Balance and Rainwater Tank Details | 24 October 2025 | | Drawing No. 106 Issue A | Sediment & Erosion Control Plan & Details Sheet 1 of 2 | 2 September 2025 | | Drawing No. 107 Issue A | Sediment & Erosion Control Plan & Details Sheet 2 of 2 | 2 September 2025 | | Drawing No. 108 Issue A | Miscellaneous Details Sheet | 2 September 2025 | | Drawing No. 109 Issue A | Maintenance Schedule Sheet | 2 September 2025 | | Documents | | 4 | Acoustical Assessment Report (55.5535.R1C:MSC) | The Acoustic Group | 3 October 2025 | | 5 | Arboricultural Impact Assessment - Revision B | Creative Planning Solutions | 7 October 2025 | | 6 | Swept Paths | Terraffic Pty Ltd | 7 October 2025 | | 7 | Access (BCA 2022, Amendment 2) Performance Solution Report (Report No: 3789 – Rev A) | J Squared Engineering Pty Ltd | 7 October 2025 | | 8 | Access Performance-Based Design Brief - Access to Buildings (Report No: 3789 – Rev A) | J Squared Engineering Pty Ltd | 7 October 2025 | | 9 | Service Confirmation Letter | WasteFree | 24 September 2025 | | 10 | Waste & Recycling Management Services | Waste Clear | 24 September 2025 | | 11 | Operational Waste Management Plan (Version 2) | Melbourne Sustainability Consultants | 3 October 2025 | | 12 | Plan of Management (Revision 2) | | 7 October 2025 | | 13 | National Quality Framework Assessment Checklist | Think Planners | 28 October 2025 | | 14 | ESD Assessment Report | Senica Consultancy Group | 27 October 2025 | | 15 | Detailed Site Investigation | Martens & Associates Pty Ltd | 4 November 2024 |

Orders

22. The Court orders:

23. The Applicant is granted leave to file the Amended Development Application referred to at [21] with the Court.

24. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed sum of $10,500 payable within 28 days of receiving the tax invoice for payment.

25. The Appeal is upheld.

26. Development Application No. DA24/0729, as amended, for the demolition of existing structures and tree removal and the construction of a 90 place childcare facility with at-grade parking, signage and associated works on land legally described as Lot 101 in DP1011735 and known as 124-126 Explorers Way, St Clair NSW 2759, is determined by the grant of development consent subject to the conditions at Annexure A.

P Walsh

Commissioner of the Court

**********

Annexure A (314 KB, pdf)