Assad v Liverpool City Council

Cases Cited: McMillan v Taylor [2023] NSWCA 183

Texts Cited: Child Care Planning Guideline 2021
Liverpool Development Control Plan 2008

Category: Principal judgment

Parties: Mark Assad (Applicant)
Liverpool City Council (Respondent)

Representation: Counsel:
A Gough (Solicitor) (Applicant)
M Harker (Respondent)
Solicitors:
Storey & Gough (Applicant)
Liverpool City Council (Respondent)

File Number(s): 2023/323320

Publication restriction: No

Judgment

1. COMMISSIONER: Niland Way, in Casula, is in a low density residential area with dwellings on one side of the road, and a vegetated reserve on the other. At 14 Niland Way, Mr Assad (the applicant) seeks development consent for the demolition of existing structures and the construction of a centre-based child care facility. He lodged a development application with Liverpool City Council on 8 May 2023. 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 a hearing of the appeal, 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 11 April 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 filed the same date, 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 amended development application provides solar access diagrams that demonstrate that the adjoining neighbour retains adequate solar access to their private open space and living areas and makes some changes to the landscape design including reconfiguration of outdoor play areas.

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 a Statement of Jurisdictional Prerequisites (the Statement). 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 of Annexure A. 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:

7. The site is zoned R2 Low Density Residential pursuant to the Liverpool Local Environmental Plan 2008 (LLEP), and centre-based child care facilities are specifically nominated as a permissible use in the R2 zone.

8. The proposed development complies with the development standards in the LLEP concerning both height and floor space ratio.

9. The development application includes earthworks for the provision of the basement level for car parking. Based on the Statement, the Engineering Design letter dated 3 March 2025, the Detailed Site Investigation dated 26 April 2023, and the agreed conditions of consent in Annexure A, I have considered the matters set out in cl 7.31 of the LLEP.

10. 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 of the SEPP TI and based on the Statement of Environmental Effects dated 18 August 2023, I have considered the applicable provisions of the Child Care Planning Guideline.

11. 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. This is also supported by the Detailed Site Investigation dated 26 April 2023, which concludes that the site is suitable for its intended use.

12. The site falls within the Georges River 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 Management Plan and the matters set out in the Statement, 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).

13. The development application was advertised and notified, and a number of residents raised concerns, which were expressed both in written submissions made to the Council and in oral submissions made on-site on 10 April 2025. I have considered the issues raised in those submissions. These include concerns with respect to the parking and traffic impact of the proposed development. Although these matters are not jurisdictional preconditions to the grant of development consent, I note that:

14. In relation to parking, the proposed development provides the number of car parking spaces required by the Liverpool Development Control Plan 2008 (PDCP) and s 4.15(3A)(a) precludes the Court, in exercising the functions of the consent authority, from requiring more onerous standards than those stipulated by the PDCP.

15. The Plan of Management dated 6 March 2025 requires that parents use on-site parking and not park on Niland Way.

16. Access to the site is left in, and left out, and the median strip is to be relocated to prevent a right-hand turn into and out of the site, which will reduce the risk of conflict associated with two cars needing to pass each other in opposite directions along Niland Way.

17. The agreed conditions of consent require the applicant to provide a pedestrian footpath along Niland Way from the site to the southern intersection of Niland Way and Mackellar Street.

18. 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)).

19. 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.

20. The Court notes:

21. Liverpool City Council as the relevant consent authority has agreed, under section 37(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending development application DA239/2023 with the documents listed below (the Amended Development Application):

● Landscape Plans prepared by Enclave Studio, dated 10 April 2025, revision 1 and drawing Nos. A100 and A101

● Architectural Plans prepared by Platform 5 Pty Ltd, issue date 10 April 2025, revision Q and drawing numbers:

● DA1002 – Site Analysis

● DA1005 – Demolition Plan

● DA1001 – Site Plan

● DA2001 – Survey Plan

● DA2001 – Basement Plan

● DA2001 – Ground Floor Plan

● DA2003 – Level 1 Plan

● DA2004 – Roof Plan

● DA2901 – GFA Diagrams

● DA2902 – GFA Diagrams Opt 2

● DA2903 – Cut and Fill Diagram

● DA2904 – Solar Access Diagrams

● DA2905 – 3D Solar Diagrams @ 12 Niland Way

● DA2906 – Indoor / Outdoor Calc Diagrams

● DA2907 – Emergency Evacuation Plan

● DA2908 – Kitchen and Fence Details

● DA3001 – Streetscape and Fence elevation

● DA3002 – Elevations

● DA3003 – Elevations and Sections

● DA4001 – Sections

● DA6302 – Schedule of Colours and Finishes

2. Pursuant to section 38(1) of the Regulations Liverpool City Council as the relevant consent authority, has approved the application for the amendment of development application No. DA239/2023.

3. The amendments to the Development Application are minor and no order for costs is required under section 8.15(3) of the Environmental Planning and Assessment Act 1979.

4. The Applicant is not required to lodge the Amended Development Application on the NSW Planning Portal pursuant to section 37(7) of the Environmental Planning and Assessment Regulations 2021.

5. The Court orders that:

6. The Appeal is upheld.

7. Development Application DA239/2023 for demolition of all existing structures, and the construction of a new two (2) storey childcare centre with a basement and associated landscaping and works at 14 Niland Way, Casula is determined by the grant of consent subject to the conditions set out in Annexure A.

J Gray

Commissioner of the Court

Annexure A

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