Land and Environment Court New South Wales Medium Neutral Citation: Lilnance Holdings Pty Ltd v Penrith City Council [2025] NSWLEC 1097 Hearing dates: 10 February 2025 Date of orders: 21 February 2025 Decision date: 21 February 2025 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application in the amount of $15,000 within 21 days of these orders being made. (2) The appeal is upheld. (3) Development consent is granted to Development Application DA23/0697, as amended, for amalgamation of two separate land parcels, demolition of existing structures and removal of trees, and construction of a two storey centre-based child care facility for 120 children and associated works, at the property comprised in folio identified 1155/259309 and 1156/259309 and known as 196-198 Bennett Road, St Clair NSW 2759, subject to the conditions in Annexure A. Catchwords: APPEAL – development application – centre-based child care facility – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021 ss 27, 37, 38 Penrith Local Environmental Plan 2010, cll 7.1, 7.4, 7.7, 7.30 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.9 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.25, 3.26, 3.27 Cases Cited: McMillan v Taylor [2023] NSWCA 183 Category: Principal judgment Parties: Lilnance Holdings Pty Ltd ACN 663 462 360 (First Applicant) Lilnance Projects Pty Ltd (Second Applicant) Penrith City Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) J Wauchope (Solicitor) (Respondent) Solicitors: Centurion Lawyers (Applicant) Dentons Australia Pty Ltd (Respondent) File Number(s): 2023/441872 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application lodged on 10 August 2023 for the demolition of existing structures and the construction of a two-storey centre based child care facility for 120 children at 196-198 Bennett Road, St Clair. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. Following an adjournment of the hearing, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 February 2025. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. 4. The agreement was provided on the same day, and follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments include a design change so that the built form is no longer within two buildings, but is instead one building with the outdoor play areas adjacent to the road and separated from the neighbouring dwellings by the built form of the proposed building. This design change also reduces the overall building footprint and facilitates the retention of a number of significant trees. 5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Jurisdictional Statement that sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties' have agreed upon (see McMillan v Taylor [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The site is zoned R2 Low Density Residential, pursuant to the Penrith Local Environmental Plan 2010 (PLEP), and centre based child care facilities are permissible in the zone. * The proposed development complies with the height development standard that applies to the site, and the PLEP does not impose a development standard for floor space ratio on the site. * The development application includes earthworks for the provision of the basement level for car parking. Based on the Geotechnical report dated 2 September 2024, I have considered the matters set out in cl 7.1(3) of the PLEP. * Based on the Agreed Jurisdictional Statement, and the fact that there are existing sewer and water supply services to the site, I am satisfied of the matters in cl 7.7(2) of the PLEP. * Based on the ESD Assessment Report dated 17 December 2024, I have considered the matters in cl 7.4 of the PLEP and I am satisfied of the matters in cl 7.30(3). * Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated. Further, a Preliminary Site Investigation Report dated 21 February 2023 has been provided, confirming that there is no area of environmental concern. * Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) concerns child care facilities and applies to the proposed development. The proposed development complies with the requirements for unencumbered indoor and outdoor space, and therefore concurrence of the Regulatory Authority is not required by s 3.22. In accordance with s 3.23 and based on the Statement of Environmental Effects and the Agreed Jurisdictional Statement, I have considered the applicable provisions of the Child Care Planning Guideline. Further, the proposed development complies with the floor space ratio control in s 3.25 of the SEPP TI. * The site falls within the Hawkesbury-Nepean Catchment, such that Part 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the development application. Based on the stormwater drainage plans and the WSUD Letters prepared by Capital Engineering Consultants dated 2 August 2024 and 24 January 2025, I am satisfied of the matters in ss 6.6(2) and 6.7(2). Further, the development will not change any public access to recreational areas of waterbodies, and I am therefore satisfied of the matters in s 6.9(2). * The development application was publicly notified between 4 and 18 September 2023. I have considered the issues raised in the written submissions that were received in response to that notification. 1. A number of residents raised concerns with respect to the number of child care centres in the immediate vicinity of the site. Although this is not a jurisdictional precondition, I note that s 3.26(2)(a) of the SEPP TI provides that "the development may be located at any distance from an existing or proposed early education and care facility". Section s 3.27(1) of the SEPP TI makes it clear that any provisions of a development control plan that specify a requirement to demonstrate need or demand for child care services, or that specify a control in relation to the proximity of a facility to other early education and care facilities, do not apply. 2. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. Notations 1. The Court notes that the Respondent, Penrith City Council, has approved, as the relevant consent authority under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA23/0697 to rely upon the following amended plans and documents (Amended Development Application), as filed with the Court on 10 February 2025: Tab Document Date 1. Architectural Drawings (Prepared by Baini Design, Project No. 23031) 6 December 2024 Drawing/Plan No. Issue Plan Title 01 F Compliance Table, Location Plan 06/12/2024 02 F Location Analysis Plan 06/12/2024 03 F Site Analysis Plan 06/12/2024 04 F 9am Shadow Diagram 06/12/2024 05 F 12pm Shadow Diagram 06/12/2024 06 F 3pm Shadow Diagram 06/12/2024 07 F Demolition Plan 06/12/2024 08 F Site Plan 06/12/2024 09 F Basement Plan 06/12/2024 10 F Ground Floor Plan 06/12/2024 11 F First Floor Plan 06/12/2024 12 F Roof Plan 06/12/2024 13 F Elevations 06/12/2024 14 F Elevations 06/12/2024 15 F Sections 06/12/2024 16 F Schedule of Finishes 06/12/2024 17 F Callout Elevations 06/12/2024 18 F Kitchen and Laundry Details 06/12/2024 19 F Typical Bottle Prep Detail 06/12/2024 20 F Typical Craft Bench Detail 06/12/2024 21 F Typical Nappy Change 06/12/2024 22 F Ground Floor Calculation Plan 06/12/2024 23 F First Floor Calculation Plan 06/12/2024 24 F Solar Access Plans 06/12/2024 25 F Solar Access Plans 06/12/2024 26 F Shading Plan 06/12/2024 27 F 0-2 Indoor Play Area Calculation 06/12/2024 28 F 2-3 Indoor Play Area Calculation 06/12/2024 29 F 3-5 Indoor Play Area Calculation GF 06/12/2024 30 F 3-5 Indoor Play Area Calculation FF 06/12/2024 31 F Ground Floor Fencing Details 06/12/2024 32 F First Floor Fencing Details 06/12/2024 33 F 3D Perspectives 06/12/2024 34 F Existing Streetscape Elevations 06/12/2024 35 F Proposed Streetscape Elevations 06/12/2024 36 F Accessible Details – Basement Floor 06/12/2024 37 F Accessible Details – Ground Floor 06/12/2024 38 F Accessible Details – First Floor 06/12/2024 2. Stormwater Management Plan (Prepared by Capital Engineering Consultants, Project No. SW23042) 16/12/2024 Drawing/Plan No. Issue Plan Title SW001 J Cover Sheet 16/12/2024 SW010 J Basement Floor Plan, Notes & Details 16/12/2024 SW020 J Ground Floor Plan 16/12/2024 SW021 J Stormwater Drainage Design Notes & Details 1 of 3 16/12/2024 SW022 J Stormwater Drainage Design Notes & Details 2 of 3 16/12/2024 SW023 J Stormwater Drainage Design Notes & Details 3 of 3 16/12/2024 SW024 J Cut and Fill Plan 16/12/2024 ER001 J Erosion and Sediment Control Plan, Notes & Details 16/12/2024 3. Landscape Drawings (Prepared by iScape Landscape Architecture) 113.24(23)/234 E Landscape Plan 1 09/12/2024 113.24(23)/235 D Landscape Plan 2 14/11/2024 113.24(23)/178 B Landscape Sections 14/11/2024 Specialist Reports Tab Ref No. Issue Document Dated 4. 7129-2.1R E Amended Noise Impact Assessment prepared by Day Design Pty Ltd 12/12/24 5. Addendum Traffic Report prepared by Hemanote Consultants 07/06/24 6. Addendum Traffic Report prepared by Hemanote Consultants 12/06/24 7. Addendum Traffic Report prepared by Hemanote Consultants 15/11/24 8. Amended Waste Management Plan prepared by Dickens Solutions December 2024 9. F568 E Arboricultural Impact Assessment prepared by Creative Planning Solutions 17/12/24 10. 24080001 B ESD Assessment Report prepared by Duncan Hope Senica Consultancy Group 17/12/24 11. GR24157 Geotechnical Investigation Report prepared by GEC Geotechnical 02/09/24 12. WSUD Letter prepared by Capital Engineering Consultants 2/08/2024 13. WSUD Letter prepared by Capital Engineering Consultants 24/01/25 14. Costs Report by QPC&C 03/02/25 15. Updated Plan of Management prepared by Think Planners 10/02/25 Orders 1. The Court orders that: 1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application in the amount of $15,000 within 21 days of these orders being made. 2. The appeal is upheld. 3. Development consent is granted to Development Application DA23/0697, as amended, for amalgamation of two separate land parcels, demolition of existing structures and removal of trees, and construction of a two storey centre-based child care facility for 120 children and associated works, at the property comprised in folio identified 1155/259309 and 1156/259309 and known as 196-198 Bennett Road, St Clair NSW 2759, subject to the conditions in Annexure A. J Gray Commissioner of the Court 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: 21 February 2025