Background
Dapto Capital Pty Ltd lodged a development application (DA-2025/50) with Wollongong City Council on 4 February 2025 seeking consent to demolish existing dwellings and ancillary structures, remove trees, and construct a centre-based childcare facility with basement car parking on three parcels of land at 21–23 Werowi Street, Baringa Place and Barellan Avenue, Dapto, NSW. The site is zoned R3 Medium Density Residential under the Wollongong Local Environmental Plan 2009, within which centre-based childcare facilities are permissible with consent. When the Council did not determine the application within the statutory timeframe, it was deemed refused, and Dapto Capital filed a Class 1 appeal in the Land and Environment Court on 20 March 2025.
The original DA proposed a facility for 90 children. The Council filed its Statement of Facts and Contentions in April 2025, identifying a range of issues including traffic, heritage, bulk and scale. One public submission was received raising those same concerns. Following an on-site conciliation conference commencing 15 August 2025, the parties engaged in extended negotiations over several adjournments, ultimately agreeing to an amended DA reducing the child capacity to 84 and addressing outstanding planning and engineering concerns, including stormwater drainage easements over adjoining lots owned by the Council and a private landowner.
The amended DA and a section 34 agreement were filed with the Court on 29 May 2026. The agreement was accompanied by a joint statement confirming that all relevant jurisdictional prerequisites under the Environmental Planning and Assessment Act 1979 (NSW) and applicable State Environmental Planning Policies had been satisfied, including compliance with koala habitat provisions, contamination assessment, non-discretionary development standards for childcare centres, and the Education and Care Services National Regulations regarding minimum indoor and outdoor play space per child.
The Court’s Holding
Acting Commissioner Kullen upheld the appeal and granted development consent to the amended DA, subject to conditions set out in Annexure A. The Commissioner was satisfied that the parties’ agreement constituted a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979 (NSW), and accordingly was required to dispose of the proceedings in accordance with that agreement. No independent merit assessment of the original disputed issues was necessary or undertaken.
The Commissioner confirmed that all jurisdictional prerequisites for exercising the consent power under s 4.16 of the EPA Act had been met: community participation requirements were satisfied through notification between 13–27 February 2025 and re-notification of the amended plans; owners’ consent was established for all three lots including drainage easement consent from adjoining private landowners; the site was confirmed not to be core koala habitat; contamination investigations confirmed the site suitable for a childcare use; and the amended development complied with height (maximum approximately 7.2m against limits of 9m and 11m) and floor space ratio controls under the LEP.
The Court also ordered that Dapto Capital pay Wollongong City Council’s wasted costs of $2,160, arising from the amendment to the development application, within 28 days, pursuant to s 8.15(3) of the EPA Act.
Key Takeaways
- Where parties to a Class 1 appeal reach a s 34 agreement, the Court must give effect to that agreement without conducting its own merits review, provided the agreed outcome is one the Court could lawfully have made.
- A childcare facility for 84 children on an R3 Medium Density site in Dapto was found to satisfy the full suite of applicable planning controls, including the Child Care Planning Guideline, Transport SEPP non-discretionary standards, and National Regulations requiring at least 3.25 m² indoor and 7 m² outdoor unencumbered space per child.
- Stormwater drainage across adjoining lots can be resolved through deferred commencement conditions requiring the applicant to secure formal easements before work commences, even where one adjoining lot is Council-owned and the other is privately held.
- An applicant who amends a DA during appeal proceedings may be ordered to pay the respondent council’s wasted costs attributable to the amendment under s 8.15(3) of the EPA Act, even where the overall appeal is upheld.
Why It Matters
This decision illustrates the practical operation of the Land and Environment Court’s conciliation process as a mechanism for resolving development disputes without contested hearings. Over three conciliation conferences spanning nearly nine months, the parties resolved a deemed refusal into a consent by moderating the development’s scale and addressing technical concerns around drainage, contamination and play space. The outcome reinforces that the s 34 agreement pathway can deliver certainty for both applicants and councils while reducing litigation costs.
For practitioners advising on childcare development in New South Wales, the case also serves as a worked example of the layered compliance requirements that apply to centre-based facilities — from LEP zoning and bulk controls through to the Transport SEPP’s non-discretionary standards, the Child Care Planning Guideline, and the detailed space requirements of the Education and Care Services National Regulations — and the importance of ensuring amended proposals re-satisfy each of those requirements before an agreement is filed with the Court.