Background
Palvinder Kaur Sooch and Maninder Singh Sooch, as owners of 502 Box Road, Jannali NSW, lodged Development Application No 25/0324 with Sutherland Shire Council in June 2025. The application sought consent to demolish existing structures and construct a three-level centre-based child care facility for 36 children, incorporating basement parking (8 spaces), ground-floor classrooms for children aged 2–5 years with outdoor play areas, and a first-floor room for children aged 0–2 years with associated outdoor play space and a cot room. The Council’s Local Planning Panel refused the application in October 2025, and the applicants had already filed a deemed-refusal appeal in the Land and Environment Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) the previous month.
The application attracted significant community opposition: 37 objections (including a petition) and only one submission in support were lodged during the initial notification period. The Court convened a conciliation conference on site on 5 March 2026 under s 34 of the Land and Environment Court Act 1979 (NSW), at which five objectors made oral submissions. Following the on-site view, the conference was adjourned multiple times while the parties negotiated revised plans. A second round of neighbour consultation was conducted in April 2026 on the amended plans, generating a further five submissions, which prompted additional amendments including a revised Acoustic Report and Plan of Management.
By 4 May 2026 the parties had reached a s 34 agreement to uphold the appeal and grant consent to the further amended development application, subject to conditions. A final version of the agreement and amended plans was filed with the Court on 15 June 2026. The Council confirmed it held delegated authority from the Sutherland Local Planning Panel to enter the agreement.
The Court’s Holding
Acting Commissioner Kullen upheld the appeal and granted development consent to the amended application. Under s 34(3) of the LEC Act, the Court is required to dispose of proceedings in accordance with the parties’ agreed decision provided that decision is one the Court could have made in the proper exercise of its functions. The Commissioner was satisfied that all jurisdictional prerequisites for granting consent under s 4.16 of the EPA Act had been met, as detailed in an agreed statement of jurisdictional prerequisites lodged by the parties. No independent merit assessment of the original issues in dispute was undertaken.
The Court confirmed compliance across a range of planning instruments. The site’s R2 Low Density Residential zoning under the Sutherland Shire Local Environmental Plan 2015 permits centre-based child care facilities with consent. The further amended design achieved a floor space ratio of 0.53:1 (within the 0.55:1 LEP maximum and the Transport SEPP standard), a building height within the 8.5 m limit, and landscaped area of 157.95 sqm (26% of site area, meeting the reduced 25% threshold for child care facilities). Indoor and outdoor unencumbered play spaces exceeded the National Regulations minimums of 3.25 sqm and 7 sqm per child respectively. The Court was also satisfied that stormwater management, contamination risk, biodiversity and water quality obligations, and urban design requirements could be addressed through conditions of consent.
On costs, the Court ordered the applicants to pay $15,000 to the Council — representing costs thrown away as a result of the mid-appeal amendment of the development application — within 28 days, pursuant to s 8.15(3) of the EPA Act.
Key Takeaways
- Where parties reach a s 34 agreement in Land and Environment Court proceedings, the Court must give effect to that agreement without conducting an independent merits review, provided the agreed outcome is within the Court’s power to make.
- Applicants who amend their development application during an appeal may be ordered to pay the respondent council’s wasted costs attributable to that amendment, even when the appeal ultimately succeeds.
- A second round of community consultation on amended plans, combined with additional acoustic and management documentation, can be sufficient to address objector concerns and support consent in a residential zone.
- Centre-based child care facilities in NSW must satisfy overlapping requirements across the Transport SEPP (including the Child Care Planning Guideline), Education and Care Services National Regulations, and the relevant LEP and DCP before consent can be granted.
Why It Matters
This decision illustrates the practical operation of the Land and Environment Court’s conciliation process as a mechanism for resolving contested child care development applications. It shows that even heavily opposed proposals — here attracting 37 objections — can proceed to consent where parties engage constructively in the s 34 process and address community concerns through design amendments and conditions. The outcome reinforces that the conciliation pathway can achieve consent without a contested merits hearing, reducing time and cost for all parties.
The costs order is a practical reminder to applicants that mid-appeal amendments carry a financial risk: even a successful appellant may be required to compensate the council for work rendered futile by changes to the application. Practitioners advising development applicants should factor this exposure into decisions about whether and when to amend during appeal proceedings.