Land and Environment Court New South Wales Medium Neutral Citation: Montessori Academy Group Developments Pty Ltd v Penrith City Council [2024] NSWLEC 1447 Hearing dates: Conciliation conference on 4 and 26 April 2024, 3, 10 and 15 May 2024 Date of orders: 30 July 2024 Decision date: 30 July 2024 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders: (1) The appeal is upheld. (2) Development Application DA23/0076 as amended for the clearing of the site and tree removal, and construction of a two-storey centre based child care facility with basement parking, drainage, and landscaping on land legally described as Lot 10 DP1224143, at 72 Park Avenue, Kingswood, NSW, 2747 is approved subject to the conditions included in Annexure A. Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – centre based child care facility - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, Sch 1 Div 2 cl 7 Land and Environment Court Act 1979, s 34 Education and Care Services National Regulations 2011, regs 107,108 Environmental Planning and Assessment Regulation 2021, s 38 Penrith Local Environmental Plan 2010, cll 2.2, 2.3, 2.7, 4.3, 7.1, 7.4, 7.7, 7.30 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 6.6 State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, Sch 5 State Environmental Planning Policy (Precincts – Western Parkland City) 2021, ss 4.19, 4.22 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, ss 2.48, 2.98, 2.120, 2.122, Ch 3, ss 3.22, 3.23, 3.26 Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021 Penrith Development Control Plan 2014 Category: Principal judgment Parties: Montessori Academy Group Developments Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: M Staunton (Applicant) J McKelvey (Respondent) Solicitors: Mitry Lawyers (Applicant) Penrith City Council (Respondent) File Number(s): 2023/277167 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA23/0076 (the DA) for the for the clearing of the site, tree removal, and construction of a two-storey centre based child care facility for 117 children, over basement parking, drainage, and landscaping on land legally described as Lot 10 DP1224143, at 72 Park Avenue, Kingswood, NSW, 2747 (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 April 2024. I presided over the conciliation conference, which began with an on-site view. There were no objectors to the proposed development. 3. The s 34 conciliation conference was adjourned to 26 April 2024 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. The s 34 conciliation conference was further adjourned to enable the parties to come to an agreement over the proposed development, including finalising the amended plans. 4. On 15 May 2024 the parties indicated that they had 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 amended DA subject to conditions. 5. A signed s 34 agreement with Annexure A was filed with the Court on 15 May 2024, with amended plans and additional material (the amended DA) as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites. 6. The parties advise that a number of updates have been made to the plans and supporting material, leading to amended plans being included in the DA, including the following changes: 1. Reduction in the number of children on site from 117 to 108; 2. Changes to the proposed building basement layout and footprint to provide for an increase in deep soil areas, including enhanced landscaping in the side and rear setbacks; 3. Further articulation of the eastern elevation of the proposed building; and 4. Deletion of the upper floor of the proposed building. 1. 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. 2. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. 3. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows below. Jurisdictional Matters Owner's consent 1. The parties advise that owner's consent has been provided in respect of the DA lodged for the site. Community Participation (Sch 1, Pt 1, Div 2, cl 7(1)) - Environmental Planning and Assessment Act 1979 1. The DA was lodged on 3 February 2023 and exhibited between 27 February 2023 and 13 March 2023. No submissions were received in response to the notification. Conditions 1. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act. Evaluation under s 4.15 - Environmental Planning and Assessment Act 1979 1. Section 4.15(1) of the EPA Act requires the Court to take into consideration the provisions of any environmental planning instrument and any development control plan as of relevance to the development the subject of the development application. 2. The parties submit that the relevant requirements of the State Environmental Planning Policies, the Local Environmental Plan and Development Control Plan have been considered and satisfied, as set out below. Penrith Local Environmental Plan 2010 1. The Penrith Local Environmental Plan 2010 (the LEP) is the relevant local environmental planning instrument that applies to the site. Under the LEP provisions: 1. The site is zoned R4 High Density Residential pursuant to cl 2.2 of the LEP; and 1. Pursuant to cl 2.3 of the LEP the proposed development for a child care centre is permissible with consent in the R4 zone; and 2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out. 1. Clause 2.7 of the LEP provides that the demolition of a building or work requires development consent. 2. Pursuant to cl 4.3 of the LEP the maximum height of buildings on the site is 15 metres; and 1. The parties advise that the proposed development is located wholly below the maximum height, and therefore complies with cl 4.3. 1. Clause 7.1 of the LEP relates to earthworks and applies to the site. The parties advise that: 1. The proposed development has been designed to ensure that the excavation will have a limited impact on the topography of the site and neighbouring properties and will not have a visual impact when viewed from the public domain; 2. The proposed excavation will not have a detrimental effect on drainage patterns; 3. The proposed excavation will be done to ensure stability of the subject site and neighbouring properties; 4. Excavated material will be managed in accordance with the waste management plan; 5. Disturbance of relics is not anticipated given the site has a history of residential use; and 6. The site is not in proximity to water catchments or environmentally sensitive land. 1. Clause 7.4 of the LEP requires that in deciding whether to grant development consent for the DA, the consent authority must have regard to the principles of sustainable development as they relate to the development based on a "whole of building" approach, and as set out at (a)-(j) of cl 7.4. The parties advise that: 1. Condition 18 requires that a Sustainability Report be submitted to and approved by the Principal Certifying Authority and requirements, recommendations and commitments outlined within that report must be incorporated and implemented in the construction and operation of the development; and 2. The parties are satisfied that the requirements of cl 7.4 have been addressed. 1. Clause 7.7 of the LEP relates to servicing. The parties advise that the proposed development will be connected to a water supply and have facilities for the removal and disposal of sewage, complying with cl 7.7. 2. Clause 7.30 (Urban Heat) of the LEP applies to this DA as the site is located in a residential zone; and 1. The parties advise that they are satisfied that the proposed development maximises opportunities for deep soil planting and minimises urban heat island effect and contributes to passive cooling on the site, satisfying cl 7.30 of the LEP. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation. 2. The site is located within a well-established residential area, historically used for urban purposes. The parties advise that the DA provides for retention of identified trees, and removal of others, with proposed replacement planting and landscaping to soften the built form and assist with maintaining privacy to neighbouring properties. 3. The site is located within the Hawkesbury-Nepean Catchment and Chapter 6 - Water Catchments of the Biodiversity SEPP is applicable to the site. This chapter generally aims to protect the environment of river systems, including the Hawkesbury-Nepean River system. The parties advise that all of the matters contained in s 6.6 of the Biodiversity SEPP have been considered and are addressed by the amended plans and the proposed stormwater management plan. State Environmental Planning Policy (Industry and Employment) 2021 1. Chapter 3 of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry and Employment SEPP) provides controls for advertising and signage and seeks to ensure that signage is compatible with the desired amenity and visual character of an area, provides effective communication in suitable locations and is of a high quality. 2. The parties advise that the proposed signage is considered to be of a suitable design which will provide effective communication without compromising the visual appearance of the building. The Applicant provided an assessment of the proposed signage against the Schedule 5 assessment provisions of the Industry and Employment SEPP to support this conclusion. State Environmental Planning Policy (Precincts – Western Parkland City) 2021 1. The State Environmental Planning Policy (Precincts - Western Parkland City) 2021 (Western Parkland City SEPP) contains a map entitled the "Wildlife Buffer Zone Map" which relates to wildlife buffer areas. Pursuant to s 4.19 of the Western Parkland City SEPP, the site is within a 13km 'wildlife buffer zone' of the Western Sydney Airport Site. 2. The parties submit that the proposed development is not one of the types of uses which warrant additional consideration under the Western Parkland City SEPP with regard to wildlife and the operation of the airport. 3. The site is also identified as being located within the "Obstacle Limitation Surface Map" area under the Western Parkland City SEPP. Section 4.22 of the Western Parkland City SEPP relates to development that would penetrate the prescribed air space for the airport and be a 'controlled activity'. 4. The parties submit that the proposed development neither penetrates the prescribed airspace, nor is it a controlled activity and therefore does not trigger any additional considerations under s 4.22. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out; and 1. The parties advise that the Applicant has provided a Preliminary Environmental Site Investigation prepared by Geotechnical Consultants Australia which concludes that the site is considered suitable for the proposed redevelopment and sensitive land use provided that certain recommendations are implemented; 2. Conditions have been included to implement the recommendations of the Preliminary Environmental Site Investigation report; and 3. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. Chapter 2 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) provides a consistent planning regime for infrastructure and the provision of services across the State, along with providing for consultation with relevant public authorities during the assessment process. 2. The parties advise that: 1. Section 2.48 of the Transport and Infrastructure SEPP relates to electricity infrastructure and is not applicable as the site is not in the vicinity of electricity infrastructure that would require concurrence of the electricity supply authority; 2. Section 2.98 of the Transport and Infrastructure SEPP relates to development adjacent to rail corridors. The site is adjacent to a rail corridor. The Respondents notified Sydney Trains. Concurrence was provided by Sydney Trains to the Respondent by letter dated 11 October 2023; 3. The proposed development is not located within proximity to a classified road nor is it a residential land use and as a result it is not necessary to consider the provisions of s 2.120 of the Transport and Infrastructure SEPP that requires a consent authority to consider the impact of arterial roads on buildings used for residential purposes; and 4. Section 2.122 of the Transport and Infrastructure SEPP identifies several types of development that require concurrence from Roads and Maritime Services where development is identified as 'traffic generating development'. The current proposal is not identified as traffic generating development by schedule 3 of the Transport and Infrastructure SEPP. Accordingly, the proposal is not required to be referred to the RMS for comment. 1. Chapter 3 of the Transport and Infrastructure SEPP) aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW; and the parties advise that: 1. the Department of Planning, Industry and Environment Child Care Planning Guideline 2021 (CCPG) has been considered in the design and plan of management for the proposed child care centre as required by s 3.23 of the Transport and Infrastructure SEPP; 2. Concurrence is not required pursuant to s 3.22 as the proposal complies with the relevant floor space requirements identified in regs 107 and 108 of the Education and Care Services National Regulations 2011; 3. Non-discretionary development standards in s 3.26 are met by the proposed development. Education and Care Service National Regulations 2011 1. The Education and Care Services National Regulations 2011 (the Regulations) provide extensive controls and requirements in addition to that of Local Environmental Plans and Development Control Plans and includes licensing and approvals processes, including documentation requirements; facilities and equipment requirements; staffing requirements; child number requirements; operational requirements; administrative requirements; and probity check requirements; and 1. The parties advise that the amended DA satisfies the requirements of the Regulations. Child Care Planning Guideline 2021 1. The CCPG establishes the assessment framework to deliver consistent planning outcomes and design quality for centre based child care facilities in NSW; and 1. The parties advise that the amended DA takes into account the requirements of the CCPG as required by s 3.23 of the Transport and Infrastructure SEPP. Penrith Development Control Plan 2014 1. The Penrith Development Control Plan 2014 applies to the site; and the provisions of the DCP which were identified in the Statement of Facts and Contentions have been addressed in the amended DA. Conclusion 1. Having considered the advice of the parties provided above at [10-31], I am satisfied that: 1. The Applicant's amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act; 2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and 3. Approval of the proposed development is in the public interest. 1. Further, 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. 2. 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. 3. The Court notes: 1. That Penrith City Council, under delegation from the Sydney Western City Planning Panel as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA23/0076 made on 15 May 2024 to rely on the documents and plans specified below (the amended development application): 1. Plans Reference: Description Sheet No. Rev No. Prepared by Date Architectural Plans Cover Sheet DA0000 7 Altis Architecture April 2024 Site Location Plan DA0001 1 Altis Architecture December 2022 Site Analysis Plan DA0002 4 Altis Architecture April 2024 Site plan/roof plan DA0003 7 Altis Architecture April 2024 Shadow Diagrams – 22 June DA0004 7 Altis Architecture April 2024 Shadow Diagrams – 22 September DA0005 7 Altis Architecture April 2024 Existing & Demolition Plan DA1001 7 Altis Architecture April 2024 Ground Floor Plan DA1102 10 Altis Architecture April 2024 Level 1 Plan DA1103 10 Altis Architecture April 2024 Level 2 Plan DA1104 10 Altis Architecture April 2024 Level 3 Plan DA1105 6 Altis Architecture April 2024 Proposed Elevations Sheet 1 DA2101 9 Altis Architecture April 2024 Proposed Elevations Sheet 2 DA2102 9 Altis Architecture April 2024 Proposed Sections Sheet 1 DA3001 7 Altis Architecture April 2024 Proposed Sections Sheet 2 DA3002 7 Altis Architecture April 2024 Proposed Sections sheet 3 DA3003 7 Altis Architecture April 2024 Signage details DA9001 3 Altis Architecture April 2024 Area plans DA9011 7 Altis Architecture April 2024 Landscape Plans Cover sheet – drawing schedule, location plan LCD-01 D Fiona Robbe Landscape Architects April 2024 Tree protection plan LCD-10 D Fiona Robbe Landscape Architects April 2024 Surfaces, materials plan (ground floor and level 1) LCD-20-01 D Fiona Robbe Landscape Architects April 2024 Surfaces, materials plan (level 2) LCD-20-02 D Fiona Robbe Landscape Architects April 2024 Planting plan (ground floor and level 1) LCD-30-01 D Fiona Robbe Landscape Architects April 2024 Planting plan (level 2) LCD-30-02 D Fiona Robbe Landscape Architects April 2024 Sections & elevations 1 LCD-40-01 D Fiona Robbe Landscape Architects April 2024 Sections & elevations 2 LCD-40-02 D Fiona Robbe Landscape Architects April 2024 Equipment precedent images 1 LCD-50-01 D Fiona Robbe Landscape Architects April 2024 Equipment precedent images 2 LCD-50-02 D Fiona Robbe Landscape Architects April 2024 Landscape maintenance notes LCD-60 D Fiona Robbe Landscape Architects April 2024 Stormwater Plans – Civil Sketches SW-000 SW-000 2 Stellen Consulting 22 April 2024 SW-001 SW-001 3 Stellen Consulting 22 April 2024 SW-002 SW-002 3 Stellen Consulting 22 April 2024 SW-003 SW-003 3 Stellen Consulting 22 April 2024 SW-004 SW-004 3 Stellen Consulting 22 April 2024 SW-100 SW-100 2 Stellen Consulting 22 April 2024 SW-101 SW-101 1 Stellen Consulting 22 April 2024 SW-200 SW-200 4 Stellen Consulting 22 April 2024 SW-900 SW-900 2 Stellen Consulting 22 April 2024 LT-001 LT-001 4 Stellen Consulting 22 April 2024 1. Supporting Documentation: Description Rev Prepared by Date Plan of Management 3 Daniella Assaf – Montessori Academy Project Manager 6 May 2024 Operational Waste Management Plan C Elephants Foot Consulting Pty Ltd 3 May 2024 Construction & Demolition Waste Management Plan Elephants Foot 26 June 2023 Preliminary Site Investigation Geotechnical Consultants Australia 17 January 2023 StormFilter Operations & Maintenance Manual Ocean Protect March 2019 Supplementary Geo-hydrological Assessment and Peer Review Australian Ground Sciences 20 February 2024 Geotechnical Investigation Report A Geotechnical Consultants Australia 17 January 2013 Arboriculture Response Peter Castor 18 February 2024 Tree Report 2024: Arboricultural Impact Assessment 5 Tree Report Pty Ltd 7 May 2024 Noise Impact Assessment 6 Acoustic Logic 3 May 2024 Supplementary Traffic and Parking Advice McLaren Traffic Engineering & Road Safety Consultants 8 May 2024 Traffic and Parking Impact Assessment of the Proposed Child Care Centre at 72 Park Avenue, Kingswood D McLaren Traffic Engineering & Road Safety Consultants 8 May 2024 BCA Assessment Report 5 Jensen Hughes 7 May 2024 NCC Section J Assessment Report BCA Energy 23 December 2022 1. The Court orders: 1. The appeal is upheld. 2. Development Application DA23/0076 as amended for the clearing of the site and tree removal, and construction of a two-storey centre based child care facility with basement parking, drainage, and landscaping on land legally described as Lot 10 DP1224143, at 72 Park Avenue, Kingswood, NSW, 2747 is approved subject to the conditions included in Annexure A. G Kullen Acting Commissioner of the Court 2023.277167 Annexure A ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2024