Tuggerah Services Pty Ltd v Central Coast Council

Category: Principal judgment

Parties: Tuggerah Services Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
G Visentin (Solicitor)(Applicant)
J Griffiths (Solicitor)(Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Moray and Agnew Lawyers (Respondent)

File Number(s): 2024/474631

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA/1653/2024 seeking consent for the demolition of an existing structure, removal of trees and the construction of a 78-place centre-based child care facility (Proposed Development) on land described as Lot 97 DP29311, Lot 132 DP29311 and Lot 131 DP29311, being 34-34A Donegal Road, Berkeley Vale NSW 2261 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 6 February 2026. I have presided over the conciliation conference.

3. At the conciliation conference, the parties reached 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 development consent to the development application subject to conditions.

4. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and have explained how the jurisdictional prerequisites have been satisfied in a jurisdictional note provided to the Court.

7. The Applicant in these proceedings is the owner of the registered folio and has standing to commence the proceedings under s 8.7(1) of the EPA Act.

8. The Site is zoned R2 - Low Density Residential Zone within the Central Coast Local Environmental Plan 2022 (CCLEP) and centre-based child care facilities are permissible with consent in Zone R2 Low Density Residential zone under the CCLEP.

9. The Site is not within a heritage conservation area.

10. The Site currently contains a single dwelling and ancillary shed in Lot 131 and 132 DP29311 whereas Lot 97 DP29311 contains a detached garage from Kilkenny Parade, as well as a driveway which provides access to parking areas within Lots 131 and 132 DP29311. An aerial photo of the Site is included in the Statement of Facts and Contentions filed by the Respondent on and is reproduced below.

11. The demolition of a building or work may be carried out only with development consent: cl 2.7, CCLEP.

12. There is no maximum height of building development standard nor a floor space ratio development standard that applies to the Site: cll 4.3 and 4.4, CCLEP.

13. Clause 5.10 of the CCLEP requires Council to consider the effect of the proposal on heritage significance and any Aboriginal object known or reasonably likely to be located on the Site. In this regard, there are no heritage issues to be considered under this clause because:

14. An AHIMS web search reveals no matter of significance to warrant a heritage impact assessment;

15. The Site does not contain a heritage item;

16. The Site is not within a heritage conservation area;

17. The Site is not identified as an aboriginal place of heritage significance.

18. The Site is located within the Southern Overland Flow and Tuggerah Lakes Catchments. The Site itself is not identified as being “flood affected”, however the surrounding street network is mapped as being inundated in both the 1% AEP and PMF events. A childcare facility is considered sensitive and hazardous development under cl 5.22(5) of the CCLEP and cl 5.22(3) applies provides that:

Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered whether the development—

(a) will affect the safe occupation and efficient evacuation of people in the event of a flood, and

(b) incorporates appropriate measures to manage risk to life in the event of a flood, and

(c) will adversely affect the environment in the event of a flood.

15. The Court is satisfied that the requirements of cl 5.22(3) of the CCLEP are met because the Proposed Development is supported by a Flood Evacuation Report prepared by Global Project Engineers, dated 25 September 2024 and flood evacuation is addressed in the Operational Plan of Management prepared by Elevation Architects, dated 30 January 2026.

16. The Site is currently provided with all urban utility services which have the capacity to service the Proposed Development, satisfying cll 6.2 and 7.6 of the CCLEP.

17. The site is mapped as both “Coastal Environment Area” and “Coastal Use Area” pursuant to Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). Section 2.10 is addressed by the Statement of Environmental Effects prepared by Optima Planning and Development Consultants, Issue C, dated October 2024 (SEE) at pp 39-41, concluding that the matters under s 2.10 are either not applicable or satisfied. The Respondent has considered the matters under s 2.10(1) and is satisfied with the matters under s 2.10(2), consistent with the requirements of this clause.

18. Section 2.11 is also addressed by the SEE concluding that the matters under s 2.11 are either not applicable or satisfied. The Respondent has considered the matters under s 2.11(1)(a) and is satisfied of the matters under s 2.11(1)(b) and is considered satisfied of the matters under s 2.11(c), consistent with the requirements of this section.

19. The Site has a long history of residential use and there are no known previous land uses or activities on the site that falls within s 4.6(4) of the Resilience and Hazards SEPP or would otherwise raise concern in terms of the potential for contamination. Accordingly, I am satisfied that the Site is suitable for the proposed use as a centre based child care facility.

20. The parties advise that the Site is not a part of a water catchment area as defined under Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). Chapter 6 applies to land in the following catchments:

21. Sydney Drinking Water Catchment;

22. Sydney Harbour Catchment;

23. Georges River Catchment;

24. Hawkesbury-Nepean Catchment.

25. The parties have reviewed the relevant catchment area maps supplied by the Department of Planning and Environment (DPE) and the NSW Planning Portal Spatial Viewer mapping and confirm the following:

26. The Hawkesbury-Nepean Catchment does include part of the Central Coast LGA, however the catchment area does not extend to the Site.

27. The DPE Hawkesbury-Nepean Catchment map is provided attached with an extract from the Spatial Viewer to confirm the location of the site in relation to the catchment.

28. I am satisfied that the site is not within a catchment area and Ch 6 of the Biodiversity and Conservation SEPP does not apply to the Proposed Development.

29. There are a number of relevant provisions in Ch 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) – Educational establishments and child-care facilities.

30. The Site has a total area of 1534.7m2. The Proposed Development has a total gross floor area of 507m2 and a resulting FSR of 0.333:1 which complies with the FSR development standard of 0.5:1 pursuant to s 3.25 of the Transport and Infrastructure SEPP.

31. Section 3.26 of the SEPP Transport and Infrastructure contains non-discretionary development standards including:

32. s 3.26(2)(a) – The development may be located at any distance from an existing or proposed early education and care facility.

33. s 3.26(2)(b) – The proposed development meets the unencumbered area of indoor and outdoor space pursuant to regulation 107 and 108 of the Education and Care Services National Regulations 2011.

34. s 3.26(c) - The development may be located on a site of any size and have any length of street frontage or any allotment depth.

35. s 3.26(d) - The development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area.

36. The Proposed Development complies with the numerical requirements for unencumbered indoor and outdoor play within the Education and Care Services National Regulations 2011 (NSW) (National Regulations).

37. Reg 107 requires 3.25 square meters of unencumbered indoor space per child unless concurrence is sought from the regulatory authority. The unencumbered indoor space for each group is as follows, meets the requirements of Reg 107 and no concurrence is required:

| Room | Group | Required | Provided | Architectural DWG | | Activity Room 1 | 0-12 Months | 26m2 | 28.1m2 | 03.03 | | Activity Room 2 | 12-24 Months | 39m2 | 39.7m2 | 03.03 | | Activity Room 3 | 2-3 Years | 59m2 | 64.7m2 | 03.03 | | Activity Room 4 | 3-5 Years | 65m2 | 65.5m2 | 03.03 | | Activity Room 5 | 3-5 Years | 65m2 | 66.6m2 | 03.03 |

2. Reg 108 requires 7 square meters of unencumbered outdoor space per child unless concurrence is sought from the regulatory authority. The unencumbered outdoor space provided is as follows, meets the requirements of Reg 108 and no concurrence is required:

| Zone | Group | Required | Provided | Architectural DWG | | 1 | 0-3 Years | 140m2 | 151.5m2 | 03.03 | | 2 | 2 Years and older | 406m2 | 418.70m2 | 03.03 |

3. The Proposed Development will be enclosed by a fence in accordance with Reg 104 – see drawing No. A-DA_09.02 (ZB) (Fencing Elevations) of the architectural plans prepared by Elevation Architecture dated 19 December 2025 (Architectural Plans).
4. A laundry is provided on the first floor to meet the requirements of Reg 106. See drawing No. A-DA 03.02 (Floor Plan – First) of the Architectural Plans.
5. Bathrooms are accessible from the indoor play areas as shown on the first floor plan drawing No. 03.02 of the Architectural Plans as required by Reg 109.
6. Each of the indoor areas has access to operable windows for light and ventilation: Reg 110.
7. The Proposed Development provides adequate administrative and consulting space as required by Reg 111, identified as “directors” on the first floor as shown on drawing No. 03.02 of the Architectural Plans.
8. A nappy change area is provided in the bathroom accessible from the 0-12 months and 12-24 months indoor play areas as shown on drawing No. 03.02 of the Architectural Plans which provides for adequate nappy changing facilities which are to be designed, located and maintained in a way that prevents unsupervised access by children as required by Reg 112.
9. The landscape plan prepared by Brian Filby (Rev 8) dated December 2025 (Landscape Plan) provides for a suitable outdoor space, including planting and appropriately designed play areas, including natural and sand play areas, providing outdoor spaces which allow children to explore and experience the natural environment: Reg 113.
10. Drawing No. 03.02 of the Architectural Plans shows the four shade sails and covered outdoor play area providing adequate shade areas for sun protection: Reg 114.
11. The Proposed Development has been designed to accommodate 13 teachers at the ratio provided in the following table which complies with the minimum staff requirements for child-care facilities in Australia: Reg 123.

| Room | Group | Staff Ratio | No. of Staff | Occupancy | | Activity Room 1 | 0-12 Months | 1:4 | 2 | 8 | | Activity Room 2 | 12-24 Months | 1:4 | 3 | 12 | | Activity Room 3 | 2-3 Years | 1:5 | 4 | 18 | | Activity Room 4 | 3-5 Years | 1:10 | 2 | 20 | | Activity Room 5 | 3-5 Years | 1:10 | 2 | 20 |

27. The proposed development is not a dwelling and is therefore not considered a BASIX Building and no BASIX certificate is required: State Environmental Planning Policy (Sustainable Buildings) 2022 and Environmental Planning and Assessment Regulation 2021 (NSW).

28. The Development Application has been notified between 20 December 2024 and 10 January 2025 and 27 submissions were received by the Respondent. The Amended Development Application was re-notified by email on 18 December 2025. One submission dated 21 January 2026 was received against and that objector also presented orally to the Court at the Conciliation Conference. The Applicant provided updated DA Acoustic Report prepared by PKA Acoustic Consulting dated 19 December 2025.

29. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment.

30. 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.

Notations:

31. The Court notes that Central Coast Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending the development application DA Number DA/1653/2024 in accordance with the plans and documents listed below:

| Plans | | Reference/ DWG No | Title/Description | Revision | Prepared by | Date | | Architectural Plans | | A-DA-00.01 | Context and Locality Plans | ZC | Elevation Architecture | 19/12/2025 | | A-DA-01.01 | Existing Survey | X | Elevation Architecture | 10/10/2025 | | A-DA-01.02 | Proposed Site Plan | Y | Elevation Architecture | 19/12/2025 | | A-DA-01.03 | Footpath Options | G | Elevation Architecture | 19/12/2025 | | A-DA-03.01 | Floor Plan - Ground | ZA | Elevation Architecture | 19/12/2025 | | A-DA-03.02 | Floor Plan - First | ZC | Elevation Architecture | 19/12/2025 | | A-DA-03.03 | Circulation/Unencumbered Area Plan | Y | Elevation Architecture | 19/12/2025 | | A-DA-03.04 | FSR Calculation | Y | Elevation Architecture | 10/10/2025 | | A-DA-03.05 | Indicative Playscape Plan | E | Elevation Architecture | 19/12/2025 | | A-DA-04.01 | Roof Plan | Z | Elevation Architecture | 10/10/2025 | | A-DA-09.01 | Elevations | ZA | Elevation Architecture | 19/12/2025 | | A-DA-09.02 | Fencing Elevations | ZB | Elevation Architecture | 19/12/2025 | | A-DA-10.01 | Sections | ZA | Elevation Architecture | 19/12/2025 | | A-DA-10.02 | Site Sections | ZA | Elevation Architecture | 19/12/2025 | | A-DA-10.03 | Sections – Line of Sight | ZA | Elevation Architecture | 19/12/2025 | | A-DA-10.04 | Sections – Site Trees | Y | Elevation Architecture | 19/12/2025 | | A-DA-13.01 | Fence Details | ZA | Elevation Architecture | 19/12/2025 | | A-DA-22.01 | Renders – (Sheet 01) | Y | Elevation Architecture | 10/10/2025 | | A-DA-22.02 | Renders – (Sheet 02) | Y | Elevation Architecture | 10/10/2025 | | Civil Works Plans | | 6716 CW01 | Gutter Longsection and Cross Sections | C | Global Project Engineers | 27/08/25 | | 6716 CW02 | Gutter Longsection and Cross Sections | C | Global Project Engineers | 27/08/25 | | 6716 CW03 | Bulk Excavation Cross Sections | C | Global Project Engineers | 27/08/25 | | Stormwater Plans | | 6716 C01 | Stormwater Details Cover Sheet | D | Global Project Engineers | 25/08/2025 | | 6716 C02 | Ground Floor Stormwater Layout | E | Global Project Engineers | 26/11/2025 | | 6716 C03 | First Floor Stormwater Plans | E | Global Project Engineers | 26/11/2025 | | 6716 C04 | Roof Drainage Plans and Details | D | Global Project Engineers | 25/08/2025 | | 6716 C05 | Stormwater Details | D | Global Project Engineers | 25/08/2025 | | 6716 C06 | Soil and Water Management Plan | D | Global Project Engineers | 25/08/2025 | | Landscape Plans | | 24-38CC | Landscape Plan and Unencumbered Play Area | 8 | Brian Filby Landscape Design | December 2025 | | Reports | | Title/Description | Prepared by | Date | | Arboricultural Impact Assessment | Enviro Ecology | 29/08/2025 | | Arborist Response Letter-Council contentions (condenser units & OSD tank) | Enviro Ecology | 10/10/2025 | | Operational Plan of Management | Elevation Architecture | 30/01/2026 | | Traffic Impact Assessment | McLaren Traffic Engineering and Road Safety Consultants | 30/01/2026 | | DA Acoustic Report | PKA Acoustic Consulting | 19/12/2025 |

Orders:

32. The Court orders:

33. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the respondent that have been thrown away as a result of the amending the Development Application in the agreed amount of $15,000 within 28 days of these orders being made.

34. The appeal is upheld.

35. Development Application DA/1653/2024 for the demolition of existing building and construction of a 78 place childcare centre and semi undercroft car park underneath the child care centre on Lots 131, 132 and 97 in DP29311 otherwise known as 34-34A Donegal Road, Berkeley Vale is determined by the grant of consent subject to the conditions set out in Annexure A.

E Espinosa

Commissioner of the Court

Annexure A (359 KB, pdf)

Plan of Management (1.91 MB, pdf)

Landscape Plan (1.56 MB, pdf)

Acoustic Report (1.89 MB, pdf) ​​​​​​​

Architectural Plans (15.5 MB, pdf) ​​​​​​​

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