ZT Architects Pty Ltd v Canterbury City Council

Texts Cited: Canterbury Bankstown Community Participation Plan 2022
NSW Department of Planning, Industry and Environment, Child Care Planning Guideline: Delivering Quality Child Care for NSW, September 2021

Category: Principal judgment

Parties: ZT Architects Pty Ltd (Applicant)
Canterbury City Council (Respondent)

Representation: Counsel:
S Shneider (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)
Solicitors:
Houston Dearn O’Connor (Applicant)
Canterbury City Council (Respondent)

File Number(s): 2025/103802

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal relates to a proposal for a child care facility at a site known as 46A Townsend Street, Condell Park. To that end, Development Application No DA-925/2024 seeks consent for demolition of existing structures on the site (single storey dwelling with single garage) and the construction of a 2 storey child care centre based child care facility (the DA).

2. The DA was lodged by the Applicant in these proceedings, ZT Architects Pty Ltd, on 3 September 2024 and was publicly notified on 18 September 2024 by Canterbury City Council for a period of 21 days in accordance with the Canterbury Bankstown Community Participation Plan 2022.

3. The DA was refused by the Council on 24 October 2024.

4. On 17 March 2025, ZT Architects, appealed the refusal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

5. 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 was first held on 1 August 2025. I presided over the conciliation conference.

6. At the conciliation conference, the parties agreed to certain amendments that would resolve the contentions, subject to an adjournment to prepare amended plans. I granted an adjournment on two occasions.

7. A signed agreement was submitted to the Court on 19 September 2025, in accordance with s 34(10) of the LEC Act. The agreement records the approval of the Council, as the relevant consent authority, to the amending of the application in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), and the filing of the amended application with the Court, in accordance with s 8.15(3) of the EPA Act, which were effected prior to the conciliation conference.

8. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.

10. The parties have identified the jurisdictional pre-conditions that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act to dispose of these proceedings and grant the orders sought. In that regard, I note the jurisdictional preconditions that follow.

11. The site is located in an area designated by the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP) as R2 Low Density Residential zone, in which the proposed development is permissible with consent where consistent with the objectives for development in the R2 zone. The objectives are as follows:

• 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 allow for certain non-residential uses that are compatible with residential uses and do not adversely affect the living environment or amenity of the area.

• To ensure suitable landscaping in the low density residential environment.

• To minimise and manage traffic and parking impacts.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To promote a high standard of urban design and local amenity.

12. The parties advise the Court that the proposed development is consistent with the objectives and controls contained within the CBLEP including, but not limited to, cll 4.3 and 4.4 in respect of height and floor space ratio respectively and cl 6.13 of the CBLEP as Townsend Street, from where vehicular access is proposed, is not identified in the Traffic Impact Assessment prepared by TTPA dated December 2023 as a classified road, cul-de-sac or carriageway less than 10m in width.

State Environmental Planning Policy (Transport and Infrastructure) 2021

13. I accept the architectural plans demonstrate compliance with regs 107 and 108 of the Education and Care Services National Regulations 2011 and so concurrence of the Regulatory Authority for the purpose of s 3.22 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Childcare SEPP) is not required.

14. Further, on the basis of the assessment undertaken in Appendix B of the Statement of Environmental Effects, prepared by Cohesive Planning dated 8 August 2024, I accept the proposed development is consistent with the Child Care Planning Guidelines that must be considered in accordance with 3.23 of the Childcare SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. On the basis of the conclusions set out in the Preliminary Site Investigation prepared by Coleman Adams Environmental dated 6 December 2023 I have considered whether the land is contaminated and conclude it is not, and that it is suitable for the development proposed, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

Conclusion

16. 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.

17. 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.

18. The Court notes that:

19. Canterbury City Council, as the relevant consent authority, under s 38 of the EPA Regulation, approves the amending of Development Application No DA-925/2024 in accordance with the following plans and documents:

(a) Architectural plans prepared by ZT Architects Pty Ltd job No 235356 Revision F dated 8 September 2025:

• Cover Sheet DA-000

• Site Plan & Analysis DA-100

• Demolition Plan DA-101

• Sediment Control Plan DA-102

• Basement Plan DA-200

• Ground Floor Plan DA-201

• First Floor Plan DA-202

• Roof Plan DA-203

• Elevations DA-300

• Elevations DA-301

• Screening detail DA-310

• Nappy Change Detail DA-320

• Section A DA-400

• Section B DA-401

• Section Through Fire Stair DA-402

• Calculations - GFA DA-500

• Calculations - Indoor / Outdoor DA-501

• Shadow Plans DA-600

• Shadow Plans DA-601

• Shadow Plans DA-602

• 3D Solar Shadows DA-603

• 3D Solar Shadows DA-604

• 3D Solar Shadows DA-605

• 3D Solar Shadows DA-606

• 3D Solar Shadows DA-607

• 3D Solar Shadows DA-608

• 3D Solar Shadows DA-609

• Finishes Schedule DA-700

• Evacuation Plan DA-800

• Notification plan DA-899

(b) Stormwater Management Plans prepared by SSC Engineering SSCE230444 – Revision E 08/08/2025 (c) Traffic Assessment enclosed in appendix B and C to correspondence prepared by Transport and Traffic Planning Associates (dated 5 September 2025) Ref 23203 - TTPA Appendix B “TTPA Marked Up Plan” and Appendix C “Swept Path Assessment” (d) Land Scape Plans prepared by Zeneth Landscape Designs Project 24-5086 Revision B pages LO1 to LO4 dated 6 August 2025 (e) Amended waste management plan prepared by Dickens Solutions August 2025 Ref 23293 (f) Survey plan A1 drawing 4062CDPrepared by Chami and Associates dated 21 February 2023

2. The Applicant filed the amended plans on 12 September 2025.

Orders

19. The Court orders that:

20. The appeal is upheld

21. 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) in the agreed sum of $3,000 within 28 days of the date of these orders.

22. Development Application DA-925/2024 is approved subject to the conditions of Development Consent set out in annexure A.

T Horton

Commissioner of the Court

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Annexure A (455 KB, pdf)