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St Maurice Aged Care Ltd v Blacktown City Council [2026] NSWLEC 1135 | Case summary | Zoe

NSWNSWLEC

St Maurice Aged Care Ltd v Blacktown City Council

[2026] NSWLEC 1135

Land and Environment Court (NSW)|2026-03-17|Before: O’Neill C

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-03-17

Before

O’Neill C

Catchwords

DEVELOPMENT APPLICATION – conciliation conference – agreement
between the parties – orders

Source

Original judgment source is linked above.

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Catchwords

DEVELOPMENT APPLICATION – conciliation conference – agreementbetween the parties – orders

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: St Maurice Aged Care Ltd v Blacktown City Council [2026] NSWLEC 1135

Hearing dates: Conciliation conference on 11 March 2026

Date of orders: 17 March 2026

Decision date: 17 March 2026

Jurisdiction: Class 1

Before: O’Neill C

Decision: The orders of the Court are:
(1) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed, as a result of the amendments made to the development application.
(2) The appeal is upheld.
(3) Development Application DA-25-01132 for alterations and additions to Development Consent No. DA-23-00720, for an additional storey to accommodate nine additional independent living units for seniors housing, at 54-56 Kildare Road and 1A Carinya Road, Blacktown, is determined by the grant of consent, subject to the conditions at Annexure A.

Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Blacktown Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 7.7
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy (Housing) 2021, Ch 3, 4, Pts 5, Div 3, ss 87, 144, 147, Schs 4, 9

| (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved | Design excellence will be achieved through a high standard of architectural design, materials, and detailing that are tailored to the specific building type and location. This additional floor carries through the same detailing and design direction of the approved development enabling a harmonious integration with the context, functional efficiency, aesthetic appeal, and careful consideration of sustainable and appropriate material choices. The design aesthetic and material selection was considered to achieve design excellence in the previous consent. | | (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain | The additional level continues the form and arrangement of the approved development. The contribution that the proposed development makes to the public domain was approved and considered to achieve design excellence in the previous consent. | | (c) whether the development detrimentally impacts on view corridors | There are no identified view corridors. | | (d) whether the development detrimentally impacts on any land protected by solar access controls established in the Blacktown Development Control Plan (DCP) | The land does not impact identified solar access protected areas. | | (e) the requirements of the Blacktown DCP. | The proposal generally satisfies provisions of the DCP. | | (f) how the development addresses the following matters— (i) the suitability of the land for development (ii) existing and proposed uses and use mix (iii) heritage issues and streetscape constraints (iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form (v) bulk, massing and modulation of buildings (vi) street frontage heights (vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity (viii) the achievement of the principles of ecologically sustainable development (ix) pedestrian, cycle, vehicular and service access and circulation requirements (x) the impact on, and any proposed improvements to, the public domain | Consent has already been granted for the use. There are no identified heritage or streetscape constraints. The proposal is modulated to match the other floors of the approved development which is the simplest design approach. The proposal is in keeping with the desired future character of the area, which is in transition. The minor change to the street frontage height is considered to be executed in a manner that is consistent with the approved development and minimises impacts. The proposal results in additional overshadowing, however, the increase in overshadowing is reasonable and represents a sharing of solar access with adjacent properties, noting that this is an area in transition. The proposal demonstrates the achievement of the principles of ecologically sustainable development. There are no changes proposed to circulation around the site, nor to the public domain. |

The proposal has a maximum height of 27.66m. The height of buildings development standard for the site is 20m. Pursuant to s 87(2)(b) of SEPP Housing, a maximum permissible building height of 23.8m applies to the proposal.
Amendments to SEPP Housing came into effect on 19 September 2025, including an amendment to s 87(2) to allow for additional building height of not more than 3.8m above the maximum permissible building height to facilitate additional FSR, under s 87(2)(b). The application was submitted on 15 August 2025 and there is no savings provision for the changes made on 19 September 2025.
Section 87 of SEPP Housing applies to the proposal at s 87(1)(a), as residential flat buildings are permissible in the R4 zone. Section 87(2) provides that development consent may be granted for the purposes of seniors housing development if the site has an area of at least 1,500m2 and the development will result in a building height of not more than 3.8m above the maximum permissible building height on the site, at s 87(2)(b).
Clause 4.6(2) of LEP 2015 provides that development consent may be granted for development that contravenes a development standard. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard under LEP 2015 and s 87(2)(c) of SEPP Housing, prepared by Adam Coburn of Mecone, Revision C, dated 9 February 2026.
Clause 4.6(3) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13]) (Initial Action). The consent authority must form two positive opinions of satisfaction under cl 4.6(3). The consent authority, or the Court on appeal, must be satisfied that, (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe) and repeated in Initial Action [17]-[21]:
the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
the development standard has been abandoned by the council;
the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]). The applicant’s written request justifies the contravention of the development standard on the bases that compliance is unreasonable or unnecessary because the objective of the development standard are met.
The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]), as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the height of buildings development standard, plus the bonus under s 87(2)(b) of SEPP Housing, as justified by the location of the exceedance setback from the site’s boundaries, the reasonableness of the amenity impacts on adjoining properties, and the compatibility of the proposal with the urban context of the site. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as environmental planning grounds within the meaning identified by his Honour in Initial Action at [23].