Sivabalakan v Blacktown City Council [2023] NSWLEC 1658

Land and Environment Court New South Wales

Medium Neutral Citation: Sivabalakan v Blacktown City Council [2023] NSWLEC 1658 Hearing dates: 17 and 18 August 2023 Date of orders: 07 November 2023 Decision date: 07 November 2023 Jurisdiction: Class 1 Before: Harding AC Decision: The Court orders that: (1) Pursuant to section 39(2) of the Land and Environment Court Act 1979, exercising the function of Blacktown City Council as consent authority under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the application to amend Development Application No DA-22-01213 is approved and the Applicant can rely on the amended plans and documents listed in Annexure A to these orders. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent, as agreed or assessed, that have been thrown away as a result of the amendment of Development Application DA-22-01213 as referred to in Order (1). (3) The appeal is upheld. (4) Restriction 9 contained in the Section 88B instrument (prepared pursuant to section 88B of the Conveyancing Act 1919) relating to DP1170094 does not apply to the development the subject of Land and Environment Court proceedings No 2022/00336183, to the extent necessary to enable the development the subject of the grant of consent to be carried out. (5) The Development Application DA-22-01213, as amended, for the amalgamation of two lots into one lot, construction of two storey Centre Based Child care Facility with a maximum capacity of 122 children ranging from 0 to 5 years and basement parking, at 84-86 Amarco Circuit, The Ponds, NSW, Bayview Road, Canada Bay, is determined by the grant of Development Consent subject to the conditions set out in Annexure B to this judgment. (6) The Exhibits, apart from Exhibits A, C, D and 2, are returned. Catchwords: DEVELOPMENT APPLICATION – Centre based child care facility – amended plans – outdoor play area – hearing Legislation Cited: Blacktown Local Environmental Plan 2015, cll 4.3, 7.5 Education and Care Services National Regulations (2011 SI 653) Regs 107, 108 Environmental Planning and Assessment Act 1979, s 8.7 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 39 State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy (Transport and Infrastructure) 2021, Pt 3.3, ss 3.22, 3.23 State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017, cl 22 Texts Cited: NSW Department of Planning and Environment, Child Care Planning Guideline, August 2017 Category: Principal judgment Parties: Sharmila Sivabalakan (Applicant) Blacktown City Council (Respondent) Representation: Counsel: J Reid (Applicant) A Seton (Solicitor)(Respondent)