15BAB Pty Ltd v Newcastle City Council [2025] NSWLEC 1812

Catchwords: DEVELOPMENT APPEAL — conciliation conference — agreement between the parties — centre based child care facility — orders Land and Environment Court New South Wales Medium Neutral Citation: 15BAB Pty Ltd v Newcastle City Council [2025] NSWLEC 1812 Hearing dates: Conciliation conference held on 23 July 2025 Date of orders: 21 November 2025 Decision date: 21 November 2025 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders: (1) 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 amendment of the development application, as determined or assessed, to be paid within 28 days of the date of this order. (2) The appeal is upheld. (3) Development Application No DA20 24 / 01 059 , as amended, for a change of use including alterations, additions , tree removal and lot consolidation and use as a centre based child care facility at 15-17 Beresford Avenue, Beresfield NSW , 2322 , legally identified as Lot 334 and Lot 335 Section A in Deposited Plan 12628, is determined by the grant of development consent subject to the conditions at 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 (NSW), ss 8.7, 4.15, 4.16, 4.17 Land and Environment Court Act 1979 (NSW), s 34 Education and Care Services National Regulations 2011 Environmental Planning and Assessment Regulation 2021 (NSW), s 38 Newcastle Local Environmental Plan, 2012 , cll 2.2, 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.23, 3.26 Texts Cited: Department of Planning, Industry and Environment , Child Care Planning Guideline , Delivering Q uality C hild C are for NSW, September 2021 Newcastle Community Participation Plan 2019 Newcastle D evelopment Control Plan 2023 Category: Principal judgment Parties: 15BAB Pty Ltd (Applicant) Newcastle City Council (Respondent) Representation: Counsel: T Poisel (Applicant) M Cotton (Respondent) Solicitors: Fortis Law (Applicant) Local Government Legal (Respondent) File Number(s): 2025/113672 Publication restriction: Nil Judgment COMMISSIONER : This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application No DA 2 0 2 4 / 01059 (the DA) for a change of use including alterations, additions and lot consolidation and use as a centre based child care facility at 15-17 Beresford Avenue, Beresfield NSW , 2322 , legally identified as Lot 334 and Lot 335 Section A in Deposited Plan 12628 (the site). Specifically, the DA sought the following: Lot amalgamation; Internal alterations to the existing building to provide indoor playrooms, sleeping rooms, administrative areas and amenities; Outdoor play area behind the building; Use of the existing at-grade car park to provide 16 car spaces (8 staff and 8 visitor) and 10 bicycle parking spaces with access to the parking area via an existing right of carriageway from Landor Street; Capacity for 53 child care places; and Operating hours from 7am to 6pm, Monday to Friday. The DA was lodged by Baini Design on behalf of 15BAB Pty Ltd (the Applicant) with Newcastle City Council (the Respondent) on 2 January 202 5 . On 24 March 202 5 , the Applicant filed an appeal in Class 1 of the Court ’ s jurisdiction, under s 8.7 of the EPA Act against the deemed refusal of the DA by the Respondent . On 4 April 202 5 the DA was refused by the Respondent. The Respondent filed its SOFAC with the Court on 24 April 202 5 . The s 34 Conciliation Conference On 23 July 2025, the Court arranged a s 34 conciliation conference on site pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). The one submitter did not attend the on-site view. After the on-site view and discussions between the parties, the s 34 conciliation conference was adjourned a number of times, to enable the parties to explore reaching a s 34 agreement. On 22 October 2025 the parties confirmed that they ha d reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties , based on amended plans (amended DA) . This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions. The parties advise that the s 34 agreement applies to a n amended DA which includes a number of amendments to the proposed development , including : Implementation of a dual entry design which leads to a single reception area and no longer cuts through the outdoor play area; Improved access to the child care centre through the relocation of the ramp (which is now a 1:20 ramp to allow for two prams to pass each other) along the western boundary; Layered security now proposed between the street and reception and the Plan of Management now identifies that glazing will not be blocked above 1.5m to protect site lines; Children’s room include windows to the corridors to facilitate supervision; Reduction in child care places from 53 to 50; Reorientation of the parking to limit stacked parking and reduction from 16 parking spaces to 13 parking spaces; Landscape plan has been updated to nominate the proposed species and irrigation has been identified for the landscape gardens across the site; No direct access between the outdoor play area and the rear car park, improving child safety and management of the centre ; and Step free access throughout the centre , with the platform lift deleted. A signed s 34 agreement with Annexure A and the amended DA as agreed between the parties were filed with the Court on 22 October 202 5 . The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites provide d by the parties on 22 October 202 5 . 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. The parties ’ decision involves the Court exercising the function under s 4.16 of the EPA Act to g rant consent to the DA . 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 Community Participation (Sch 1, Div 2, s 7(1)) - Environmental Planning and Assessment Act 1979 The parties advise t he DA was notified between 9 January 2025 and 28 January 2025 in accordance with the City of Newcastle Community Participation Plan 2019 . No submissions were received during the notification period however, one submission was received outside the notification period on 4 February 2025. Owner’s consent The parties advise that the DA was lodged with the consent of the Applicant, who is the owner of the site. Conditions The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act . Newcastle Local Environmental Plan 20 12 The Newcastle Local Environmental Plan 20 12 (the LEP) is the relevant environmental planning instrument that applies to the site ; and The site is zoned E1 Local Centre under cl 2.2 of the LEP; Pursuant to cl 2.3 of the LEP centre-based childcare facilities are permissible with consent in the E1 zone; and 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 . Pursuant to cl 2.7 of the LEP, demolition is permissible with consent. Pursuant to cl 4.3 of the LEP , the maximum height of buildings on the site is 11 m . The parties advise that the maximum height of the proposed built form is 5.4 m and therefore complies with cl 4.3. Pursuant to cl 4.4 of the LEP the maximum floor space ratio (FSR) for the site is 1 .5:1 . The parties advise that the proposed development has a FSR of 0.27:1 which complies with cl 4.4 of the LEP . Clause 5.10 of the LEP relates to heritage conservation. The parties advise that t he s ite is not listed as a heritage item nor is it located within a heritage conservation area . The parties advise that the site is not identified as being flood prone pursuant to cl 5.21 of the LEP. Clause 6.1 of the LEP relates to Acid sulfate soils. The parties advise that the site is identified as containing class 5 acid sulfate soils on the Acid Sulfate Soils Map under cl 6.1 of the LEP. However, development consent is not required for the proposed development as, under cl 6.1(6)(a), the disturbance to the soil is less than 1 tonne . Clause 6.2 of the LEP relates to earthworks. The p roposed d evelopment seeks consent for minor earthworks. The parties advise that t he Court can be satisfied of the matters for consideration in cl 6.2(3) of the LEP as the existing built form is to be retained and will not affect drainage or soil stability . State Environmental Planning Policy (Biodiversity and Conservation) 2021 Chapter 2 – Vegetation in Non-Rural Areas Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 operates to protect the biodiversity values of trees and other vegetation in non-rural areas of New South Wales and to preserve the amenity of non-rural areas of NSW through the preservation of trees and other vegetation. The parties advise that: The proposed development is within a commercial area, and compensatory planting is proposed to offset the tree removal; The proposed development will also incorporate high quality landscape embellishment works, which will reduce the bulk and scale of the development, soften the built form and assist in maintaining privacy to neighbouring properties; and The impact of the Proposed Development on trees and vegetation has also been considered in an A r boricultural Impact Assessment and Tree Management Plan prepared by Redgum Horticultural dated 15 September 2025. State Environmental Planning Policy (Resilience and Hazards) 2021 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 . T he parties advise that t he Court can be satisfied that consent can be granted because the A pplicant ’ s Preliminary Environmental Site Investigation (PSI ), prepared by Environmental Consulting Services ( ECS ) dated 10 February 2025 confirms there is no evidence of significant imported fill material and asbestos containing material was not observed across the surface. ECS concluded that the site is suitable for the proposed words, subject to the implementation of recommendations including disposal of waste in accordance with guidelines. 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 Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Infrastructure SEPP ) aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW . Under s 3.23 of the Infrastructure SEPP - Centre-based child care facility - matters for consideration by consent authorities , a consent authority must consider applicable provision s of the Child Care Planning Guideline 2021 (the Guideline) . Section 3.26 of the Infrastructure SEPP contains non-discretionary development standards for centre - based child care centres . T he proposed development is required to provide at least 3.25m 2 of unencumbered indoor play space and at least 7m 2 of unencumbered outdoor play space , which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service s National Regulations 2011 (the Regulations) . The parties advise that c ompliance with the Guidelines is set out in the Statement of Environmental Effects (SEE) submitted with the DA. Education and Care Service National Regulations 2011 The Regulations provide extensive controls and requirements in addition to that of L ocal E nvironmental P lans and Development C ontrol P lans 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 . The parties advise that compliance with the Regulations is set out in the SEE. Newcastle Development Control Plan 20 23 The parties advise that c ompliance with Newcastle Development Control Plan 2023 ( the DCP ) as it relates to child care centres is discussed in the SEE . Conclusion Having considered the advice of the parties provided above at [ 14 ] -[ 36 ] I am satisfied that: The Applicant ’ s amended DA can be approved having regard to the matters in s 4.15(1)(b) - (e) of the EPA Act; 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 Approval of the proposed development is in the public interest. 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. 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. The Court notes: That Newcastle City Council, as the consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) , has approved the application for an amendment to Development Application DA 2024 / 01059 made on 20 October 2025 to rely on the documents specified below: Document Ref No. Prepared by Rev Date Architectural Plans Cover Sheet 00 Baini Design C 18 Sep 2025 Compliance Table, Location Plan 01 Baini Design C 18 Sep 2025 Site Context Plan 02 Baini Design C 18 Sep 2025 Site Analysis Plan 03 Baini Design C 18 Sep 2025 Shadow Diagrams 04 Baini Design C 18 Sep 2025 Site Plan 05 Baini Design A 18 Sep 2025 Demolition Plan 06 Baini Design C 18 Sep 2025 3D Perspectives 07 Baini Design C 18 Sep 2025 Proposed Ground Floor Plan 08 Baini Design C 18 Sep 2025 Façade Elevation 09 Baini Design C 18 Sep 2025 Sections 10 Baini Design C 18 Sep 2025 WC Details 11 Baini Design C 18 Sep 2025 Kitchen & Laundry Details 12 Baini Design C 18 Sep 2025 Bathroom Details 13 Baini Design C 18 Sep 2025 Typical Nappy Change 14 Baini Design C 18 Sep 2025 Typical Bottle Prep Detail 15 Baini Design C 18 Sep 2025 Typical Craft Bench Detail 16 Baini Design C 18 Sep 2025 Schedule of Finishes 17 Baini Design C 18 Sep 2025 Solar Study – 1pm 18 Baini Design C 18 Sep 2025 Solar Study – 2pm 19 Baini Design C 18 Sep 2025 Solar Study – 3pm 20 Baini Design C 18 Sep 2025 Shading Calcs. 21 Baini Design C 18 Sep 2025 GFA Calc. Plan 22 Baini Design C 18 Sep 2025 OPA Calc. Plan 23 Baini Design C 18 Sep 2025 Indoor Calc Plan 0-2 24 Baini Design C 18 Sep 2025 Indoor Calc Plan 2-3 25 Baini Design C 18 Sep 2025 Indoor Calc Plan 3-5 26 Baini Design C 18 Sep 2025 Fencing Detail – Ground Floor 27 Baini Design C 18 Sep 2025 Streetscape Elevation 28 Baini Design C 18 Sep 2025 Accessibility Details – Ground Floor 29 Baini Design C 18 Sep 2025 Perspective 1 40 Baini Design C 18 Sep 2025 Perspective 2 41 Baini Design C 18 Sep 2025 Landscape Plan Landscape Plan: Ground Floor & Section A DA-L01 Canvas Landscape Architects D 15 Sep 2025 Landscape Typical Details & Maintenance Program DA-L02 Outside In Design Group D 15 Sep 2025 Addendum Traffic & Parking Report – Post Section 34 Hemanote Consultants - 12 Aug 2025 Arboricultural Impact Assessment & Tree Management Plan Redgum Horticultural 1.1 15 Sep 2025 Social Impact Assessment – Child Care Facility Think Planners - 10 Sep 2025 Plan of Management Think Planners 4 10 Sep 2025 Survey Plan 231213 - 1 33 Survey 3 07 Sep 2025 Noise Impact Assessment Rodney Stevens Acoustics 4 12 Sep 2025 Orders The Court orders: 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 amendment of the development application, as determined or assessed, to be paid within 28 days of the date of this order. The appeal is upheld. Development Application No DA202 4 / 01 05 9 , as amended, for a change of use including alterations, additions , tree removal and lot consolidation and use as a centre based child care facility at 15-17 Beresford Avenue, Beresfield NSW , 2322 , legally identified as Lot 334 and Lot 335 Section A in Deposited Plan 12628, is determined by the grant of development consent subject to the conditions at Annexure A. G Kullen Acting Commissioner of the Court ********** Annexure A (324 KB, pdf) 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 November 2025