Srinivasan Sembu and Ajantha Mohanrajan ATF Sembu Family Trust v Blacktown City Council

Texts Cited: Blacktown Development Control Plan 2015
Child Care Planning Guideline 2021

Category: Principal judgment

Parties: Srinivasan Sembu and Ajantha Mohanrajan ATF Sembu Family Trust (Applicant)
Blacktown City Council (Respondent)

Representation: Counsel:
A De Mattia (Solicitor) (Applicant)
M Fozzard (Respondent)
Solicitors:
Mills Oakley (Applicant)
Bilias and Associates (Respondent)

File Number(s): 2025/28828

Publication restriction: Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s Development Application No. DA-24-01118 (Development Application) seeking consent for the construction of a 90 place, two-storey childcare facility with basement parking, and associated landscaping on land legally described as Lots 28 and 29 Sec K Deposited Plan 2161 and known as 1 Peter Street, Blacktown (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 (NSW) (LEC Act).

The D****evelopment A****pplication

3. The Development Application was lodged on the NSW Planning Portal on 12 November 2024.

4. The Development Application was publicly notified between 11 December 2024 and 15 January 2025. Two submissions were received raising objections in relation to:

5. the extent of excavation to accommodate basement parking;

6. privacy impacts regarding proposed windows facing adjacent property;

7. the proposed acoustic fence materials;

8. the need to replace existing boundary fencing in good condition;

9. ongoing maintenance of landscaping;

10. offsetting the removal of existing gum trees on the Subject Land; and

11. concerns regarding protection of the existing street trees.

12. On 23 January 2025, the applicant commenced proceedings in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

13. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was terminated on 9 August 2025.

14. Following the termination of the s 34 conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement reached is for consent to be granted to the Development Application in a modified form, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

15. The agreed amendments include:

16. Rreduction in the height of the basement;

17. reconfiguration of the waste and loading area within the basement;

18. line marking and way finding shown within the basement;

19. relocation of the elevator and fire stair from the basement;

20. identification of 800mm set down in ground floor slab shown on basement plan;

21. increased setback from Tree 9;

22. reconfiguration of entry ramp and pedestrian entry on ground floor;

23. reconfiguration of internal childcare areas;

24. relocation of kitchen on first floor from the east to the north of the building and reconfiguration of the first floor generally;

25. removal of the continuous awning on the first floor;

26. reconfiguration of the facades in terms of materiality, massing and window treatment; and

27. additional detail added in relation to fencing,

28. (Amended Development Application).

29. 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 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 s34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owners*’* consent

11. The applicant is the registered proprietor of the Subject Land and provided owners consent to the lodgement of the Development Application (see Class 1 Application, tab 1s).

State Environmental Planning Policy (Resilience and Hazards) 2021

12. Consideration has been given as to whether the Subject Land is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree, and I accept, that the Subject Land has a longstanding history of residential use and is unlikely to be contaminated. Notwithstanding, a Preliminary Site Investigation prepared by GCA Geotechnical Consultants dated 23 October 2024 (PSI) accompanies the proposal, which concludes that the Subject Land is considered suitable for its intended use and provides various recommendations. I further note that Condition 7.2 of the Agreed Conditions requires that the recommendations of the PSI be implemented.

13. The parties agree, and I accept that, the requirements of scl 4.6 of the RH SEPP are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the proposed development as the Subject Land is located within the Hawkesbury-Nepean Catchment. Part 6.2 of Ch 6 sets out various matters in relation to which the consent authority must be satisfied, or must consider, before granting development consent.

15. The parties submit, and I accept, that the Amended Development Application will not have any significant impact on the environmental quality of the Hawkesbury-Nepean Catchment, and the matters for consideration and satisfaction under Pt 6.2 have been addressed in the:

16. Stormwater Plans prepared by NY Civil dated 3 July 2025 (Stormwater Plans);

17. Drainage Design Cover Letter prepared by NY Civil Engineering dated 4 July 2025; and

18. S3QM Deemed to Comply Certificate dated 3 July 2025 which confirms that the proposed drainage design meets the respondent’s requirements for water sensitive urban design.

19. I otherwise accept the parties’ consideration of the matters in Pt 6.2 of the BC SEPP as set out in the jurisdictional statement.

State Environmental Planning Policy (Transport and Infrastructure) 2021

17. Section 3.23 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) relevantly provides that before determining a development application for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline 2021 (Guidelines) in relation to the proposed development.

18. The proposed development’s compliance with the Guidelines has been addressed in the Statement of Environmental Effects prepared by Sutherland & Associates Planning dated 29 September 2024 (SEE) (see pp 20-40).

19. In determining the Amended Development Application, I confirm that I have taken into consideration the applicable provisions of the Guidelines in relation to the proposed development for the purpose of s 3.23 of the TI SEPP.

20. For the purposes of s 3.25 of the TI SEPP regarding floor space ratio (FSR), the parties agree and I accept that the Amended Development Application does not exceed the FSR of 0.5:1 (and in fact proposes a FSR of 0.42:1).

21. Section 3.26 of the TI SEPP sets out non-discretionary development standards for the purpose of ss 4.15(2) and 4.15(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 TI SEPP provides the requirements for indoor and outdoor space.

22. The parties agree that the Amended Development Application provides at least 3.25m2 of unencumbered indoor play space and at least 7m2 of unencumbered outdoor play space per child (see p 19 of the SEE) which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Services National Regulations.

23. In determining the Amended Development Application, I am satisfied that the matters outlined in Ch 3 of the TI SEPP have been considered and addressed.

Blacktown L**ocal Environmental Plan 2015

24. The Subject Land is zoned R2 Low Density Residential under the Blacktown Local Environmental Plan 2015 (BLEP). Accordingly, the proposed development, being a “centre-based child care facility” is permissible with consent in the R2 zone. I have had regard to the zone objectives which are extracted below:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.

25. The parties agree that the Amended Development Application is consistent with the objectives of the R2 zone.

26. The parties agree, and I accept, that the Amended Development Application complies with the height standard prescribed in cl 4.3 of the BLEP.

27. In respect of the FSR standard prescribed in cl 4.4 of the BLEP, the parties agree and I accept that the Subject Land is not subject to a FSR control in the BLEP.

28. Pursuant to cl 5.10 of the BLEP relating to heritage conservation, the parties agree and I accept that the Subject Land is not listed as a heritage item or in a heritage conservation area. However, the Subject Land is in the vicinity of a heritage item and the applicant has subsequently prepared a Statement of Heritage Impact prepared by NWT Heritage Consulting dated September 2024 (Heritage Assessment). The Heritage Assessment concludes that the proposed development will have no physical impacts and no greater than minor visual impacts on the heritage item. The parties agree and I accept that the Amended Development Application further improves the relationship with the heritage item. Accordingly, cl 5.10 of the BLEP has been adequately addressed.

29. Pursuant to cl 5.21 of the BLEP relating to flooding, although the parties agree that the Subject Land is partially located within an “Overland Flow Low Flood Risk Precinct” pursuant to the respondent’s mapping, it is not located within the relevant flood planning area prescribed by cl 5.21. Therefore, the parties agree, and I accept that cl 5.21 of the BLEP is not enlivened in relation to the proposal.

30. In relation to cl 7.5 of the BLEP relating to essential services, the parties agree and I accept that all services are available to the Subject Land and the requirements of cl 7.5 are satisfied.

31. In relation to cl 7.7 of the BLEP relating to design excellence, the parties agree, and I accept that the Amended Development Application exhibits design excellence having regard to the Design Excellence Statement prepared by Sutherland & Associates dated 10 July 2025.

Blacktown Development Control Plan 20**15

32. The parties agree that the Amended Development Application is capable of approval having regard to the relevant provisions of the Blacktown Development Control Plan 2015 (see also pp 52-59 of the SEE).

Remaining matters under s 4.15(1) of the EPA Act

33. The matters listed in s 4.15(1)(b), (c) and (e) are considered generally in the SEE (see pp 63-66) and there is no impediment to the approval of the Amended Development Application having regard to those matters.

34. In respect of s 4.15(1)(d) of the EPA Act, as set out above at [4], the Development Application was publicly notified between 11 December 2024 and 15 January 2025 with two submissions received. Further, one resident provided a further submission on 3 September 2025 raising concerns primarily regarding privacy for consideration in the s 34 conference. I am satisfied that the written submissions received have been taken into consideration and addressed in the assessment and determination of the Amended Development Application.

Conclusion

35. 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.

36. 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.

37. The Court notes that:

38. The respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant’s amendment to Development Application DA-24-01118 in accordance with the following plans and documents:

| TAB | DOCUMENT | DATE | | 1. | Amended Architectural Plans (Rev 9) prepared by Quantum 3D: • DA.00.00 - COVER SHEET • DA.01.01 - SITE PLAN • DA.01.03 – SURVEY PLAN • DA.01.04 – LOCATION PLAN • DA.01.05 – GORDAN ST SITE ELEVATION • DA.02.01 – BASEMENT • DA.02.01.01 – BASEMENT WITHOUT SURVEY • DA.02.02 - GROUND FLOOR • DA.02.03 - FIRST FLOOR • DA.02.04 - ROOF PLAN • DA.02.05 – CUT AND FILL PLAN • DA.03.01 - WEST ELEVATION • DA.03.02 - SOUTH ELEVATION • DA.03.03 - NORTH & EAST ELEVATIONS • DA.03.04 - SECTIONS A • DA.03.05 - SECTION B • DA.04.01 – PROJECT CALCULATIONS • DA.04.02 - MATERIAL SCHEDULE • DA.04.03 - WINDOW & DOOR SCHEDULE • DA.05.01 - SUN PATH - WINTER SOLSTICE 9AM • DA.05.02 - SUN PATH - WINTER SOLSTICE 10AM • DA.05.03 - SUN PATH - WINTER SOLSTICE 11AM • DA.05.04 - SUN PATH - WINTER SOLSTICE 12PM • DA.05.05 - SUN PATH - WINTER SOLSTICE 1PM • DA.05.06 - SUN PATH - WINTER SOLSTICE 2PM • DA.05.07 - SUN PATH - WINTER SOLSTICE 3PM • DA.05.08 - SUN PATH - WINTER SOLSTICE 4PM • DA.06.01 - SUN PATH - SUMMER SOLSTICE 9AM • DA.06.02 - SUN PATH - SUMMER SOLSTICE 10AM • DA.06.03 - SUN PATH - SUMMER SOLSTICE 11AM • DA.06.04 - SUN PATH - SUMMER SOLSTICE 12PM • DA.06.05 - SUN PATH - SUMMER SOLSTICE 1PM • DA.06.06 - SUN PATH - SUMMER SOLSTICE 2PM • DA.06.07 - SUN PATH - SUMMER SOLSTICE 3PM • DA.06.08 - SUN PATH - SUMMER SOLSTICE 4PM • DA.07.01 – CONCEPT PRIVACY SCREEN DETAIL • DA.08.02 – NEIGHBOUR VIEW ELEVATIONS | 25 August 2025 | | 2. | Amended Landscape Plans (Rev H) prepared by Vision Dynamics | 6 August 2025 | | 3. | Amended Stormwater Plans (Rev C) prepared by NY Civil Engineering | 3 July 2025 | | 4. | Amended Plan of Management prepared by Sutherland Planning & Associates | 23 July 2025 | | 5. | Design Excellence Letter prepared by Sutherland Planning & Associates | 10 July 2025 | | 6. | Drainage Design Cover Letter prepared by NY Civil Engineering | 4 July 2025 | | 7. | S3QM Deemed to Comply Certificate | 3 July 2025 | | 8. | Amended Arborist Report prepared by Mark Bury Consulting | 19 March 2025 | | 9. | Arborist Response to Feedback prepared by Mark Bury Consulting | 23 June 2025 | | 10. | Arborist Response to Feedback prepared by Mark Bury Consulting | 9 July 2025 | | 11. | Updated Acoustic Report prepared by West & Associates | 23 July 2025 | | 12. | SRV and B85 Swept Path Diagrams prepared by Varga Traffic Planning | 2 July 2025 | | 13. | Evacuation Diagrams | 23 July 2025 | | 14. | Signed Waste Contractor Agreement | July 2025 | | 15. | Letter prepared by Wastefree regarding servicing of site and brochure | - |

38. The applicant provided the amended plans and documents outlined above to the Court on 29 August 2025.

Orders

39. The Court orders that:

40. The appeal is upheld.

41. Development Application DA-24-01118, as amended, for the construction of a two-storey child care centre to accommodate 90 places, basement parking, and associated landscaping and acoustic barriers/fencing, with proposed hours of operation between 7:00am to 7:00pm Monday to Friday at 1 Peter Street, Blacktown, is determined by the grant of development consent subject to the conditions at Annexure A.

42. 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

N Targett

Commissioner of the Court

Annexure A (479 KB, pdf)

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