Crownland Leppington No. 7 Ridge Square Ltd ATF Crown Trust 39 v Liverpool City Council

Cases Cited: Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31

Category: Principal judgment

Parties: Crownland Leppington No. 7 Ridge Square Ltd ATF Crown Trust 39 (Applicant)
Liverpool City Council (Respondent)

Representation: Counsel:
A Knox (Solicitor)(Applicant)
A Jucha (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s): 2024/206672

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Modification application under s 4.55(2) to amend approved DA1383/2021 to vary the Indicative Layout Plan (ILP) and update supporting plans and documents (Proposed Modification) at 470 Fourth Avenue, Austral, 490 Fourth Avenue, Austral, 494-500 Fourth Avenue, Austral, 510 Fourth Avenue, Austral, legally described as Lots 1 and 2 in DP 574738, , and corner Lot 1 and Lot 2 in DP 562807 (the Site).

2. Pursuant to the Development Application, approved on 20 June 2023, development consent DA-1383/2021 (the Consent) was granted for the staged residential subdivision of four existing allotments to create 199 Torrens title lots. The application included the demolition of existing structures, removal of vegetation, dam dewatering, site remediation, bulk earthworks and associated civil works including the construction of temporary on-site stormwater detention (OSD) basins, stormwater infrastructure, new roads, and installation of services over four stages.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 17 July 2025. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the Development Application subject to conditions.

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.

6. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to modify a development consent.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the court and orally during the conciliation conference.

8. The modification application was lodged with the consent in writing from Carlo Bonvini and Pina Bonvini who are the owners of Lot 2 in Deposited Plan 574738, as required under s 98(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). The balance of the Site is owned by the Applicant.

9. The Consent is identified as integrated development pursuant to s 4.46 of the EPA Act. Accordingly, the Proposed Modification was notified to Sydney Water, Endeavour Energy and the NSW Rural Fire Service. No response was received from Sydney Water and Endeavour Energy. A response containing updated General Terms of Approval (GTAs) was received from NSW Rural Fire Service on 4 February 2024. Those GTAs have been incorporated into the agreed conditions of consent at Annexure A.

10. The Respondent had contended in the Statement of Facts and Contentions filed 4 July 2024 at contention 1 that the Proposed Modification is not considered to be substantially the same development as originally approved because:

“Although the modification retains the number of approved allotments in the proposal and is still for subdivision, the amended road layout for the laneways in the R3 zoned area, causes a major variation to the ILP, unnecessary traffic and public domain impacts and changes to the future dwelling designs of the associated residential lots, being previously rear loaded and now front loaded.”

11. At the Case Management Conference on 11 Jully 2025, the Respondent confirmed with the Court that the town planning contentions, including contention 1, were no longer pressed and that the remaining traffic contention had effectively been resolved following the joint conferencing of the parties’ experts as set out in the Joint Expert Report prepared by Thomas Steel for the Applicant and Patrick Bastawrous for the Respondent filed 9 July 2025.

12. Although the Respondent may not press contention 1, the jurisdictional prerequisite must be satisfied. The relevant jurisdictional requirements are contained in the terms of s 4.55(2) of the EPA Act, which provides as follows:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with--

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

13. In the decision of Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 Preston CJ said that:

“26. … The test in s 4.55(2)(a) requires a simple comparison of the two developments, the development as modified and the development as originally approved: Arrage v Inner West Council [2019] NSWLEC 85 at [24]; Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 at [112]. This comparison can involve “an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper context”: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [56]. But the comparison required by s 4.55(2)(a) remains a holistic one of the two developments being compared – the modified development and the originally approved development. The opinion of satisfaction that s 4.55(2)(a) requires is that the two developments being compared are substantially the same development, not that either the quantitative features or the qualitative features of the two developments are substantially the same.”

14. The Statement of Environmental Effects dated 20 November 2023 filed with the Class 1 Application sets out an assessment against the terms of s 4.55 of the EPA Act in Table 1 at p 29 and concludes that

“the outcome of the proposed modification will remain as originally approved, being the residential subdivision of 199 Torrens title lots and associated roads and infrastructure over 4 stages.”

and at p 30 that

“the proposed modifications do not alter the type and intended purpose of the development and is considered to be substantially the same as that previously approved by Council.”

15. The Consent will be modified as seen by a comparison of the originally approved Plan of Proposed Subdivision extracted at Fig 1 and the modified Plan of Proposed Subdivision extracted at Fig 2:

Fig 1: originally approved Plan of Proposed Subdivision

Fig 2: modified Plan of Proposed Subdivision

16. The changes are quantitively described as follows:

17. Deletion of laneways which run parallel with Fourth Avenue and Road 01,

18. Amendment of partial laneways to make an ‘L’ shape by keeping laneway portions running from internal north/south road (Road 01) and replace future pedestrian pathways with road laneways going into Gurner Avenue and Road 06,

19. Amendment of lot sizes and widths in the stage incorporating the R3 Medium Density Residential land and retaining approved number of lots (81) in that portion of the site,

20. Amendment of supporting documentation to the Development Application,

21. Reorientation of Lots 217-22 and 239-244 to be accessed from Road 07,

22. Consolidation of driveways for Lots 204 to 217, 244 to 259, 222 to 235, 239 and 267 to 281 fronting Fourth Avenue and Road 01,

23. Rearrangement of street tree planting layout for Road 01 and Fourth Avenue, and

24. Minor change to the staging of the development as detailed in Paragraph 4 of Annexure A.

25. The parties agree that the Proposed Modification results in a development which is substantially the same as originally approved for the following qualitative reasons:

26. the proposed modification maintains the same number of allotments;

27. the proposed modification maintains the purpose of the proposed development, being a subdivision;

28. the provision of direct access to Fourth Avenue and Road 01 from the specified lots does not result in a substantial change to the original Plan of Proposed Subdivision;

29. the modification to the ILP results in a subdivision layout that remains consistent with the Precinct Planning Vision applicable to the Subject Site under the State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Ch 3 Sydney Region Growth Centres – Appendix 4 Liverpool Growth Centres Precinct Plan;

30. no substantive changes to the conditions of consent are sought other than the inclusion of the new Plan of Proposed Subdivision; and

31. there is no adverse environmental impact, and the proposed modification increases the planting of street trees along Fourth Avenue and Road 01 as reflected in the amended landscape plans**.**

32. Having undertaken the exercise of comparing the Proposed Modification and the Consent, I am satisfied that the Proposed Modification is substantially the same development as the development for which consent was originally granted.

33. 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. I adopt the reasons given by the parties as set out in this judgment.

34. 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.

Notations:

21. The Court notes:

22. Liverpool City Council as the relevant consent authority for the purposes of s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) agrees to the Applicant amending the modification application to incorporate the following amended plans and documentation:

(a) Civil Drawings prepared by J Wyndham Price, as follows:

| Plan | Plan Title | Revision | Dated | | DA001 | Cover Sheet | I | 16.7.25 | | DA002 | Site Layout Plan | G | 16.7.25 | | DA003 | Pavement Plan | E | 16.7.25 | | DA004 | Demolition Plan | D | 16.7.25 | | DA005 | Cut & Fill Plan | D | 16.7.25 | | DA006 | Site Longitudinal Sections Sheet 1 | D | 16.7.25 | | DA007 | Site Longitudinal Sections Sheet 2 | D | 16.7.25 | | DA008 | Site Longitudinal Sections Sheet 3 | D | 16.7.25 | | DA009 | Site Longitudinal Sections Sheet 4 | D | 16.7.25 | | DA010 | Site Longitudinal Sections Sheet 5 | C | 16.7.25 | | DA011 | Site Longitudinal Sections Sheet 6 | C | 16.7.25 | | DA020 | Typical Sections | E | 16.7.25 | | DA050 | Engineering Plan Sheet 1 | G | 16.7.25 | | DA051 | Engineering Plan Sheet 2 | G | 16.7.25 | | DA052 | Engineering Plan Sheet 3 | F | 16.7.25 | | DA053 | Temporary Works | B | 16.7.25 | | DA100 | Road Longitudinal Sections Sheet 1 | C | 16.7.25 | | DA101 | Road Longitudinal Sections Sheet 2 | C | 16.7.25 | | DA102 | Road Longitudinal Sections Sheet 3 | C | 16.7.25 | | DA103 | Road Longitudinal Sections Sheet 4 | C | 16.7.25 | | DA104 | Road Longitudinal Sections Sheet 5 | C | 16.7.25 | | DA105 | Road Longitudinal Sections Sheet 6 | D | 16.7.25 | | DA106 | Road Longitudinal Sections Sheet 7 | D | 16.7.25 | | DA500 | Retaining Wall Plan & Details | C | 16.7.25 | | DA501 | Retaining Wall Plan 2 | C | 16.7.25 | | DA600 | Basin Plan Detail | D | 16.7.25 | | DA601 | Basin Plan Detail | D | 16.7.25 | | DA602 | Basin Plan Detail | E | 16.7.25 | | DA603 | Bioretention Typical Details & Access Track Longitudinal Sections | C | 16.7.25 | | DA604 | Streetscape Silt Trap and Tree Pit Details | B | 16.7.25 | | DA700 | Soil & Water Management Plan | D | 16.7.25 | | DA750 | Turning Path Plan | C | 16.7.25 | | DA751 | Turning Path Plan | C | 16.7.25 |

(b) Landscape Public Domain Plans prepared by Ground Ink, as follows:

| Drawing No. | Plan Title | Revision | Dated | | LDA-001 | Landscape Cover Sheet | E | 16.7.25 | | LDA-101 | Landscape Masterplan | E | 16.7.25 | | LDA-102 | Street Tree Masterplan | E | 16.7.25 | | LDA-201 | Detailed Landscape Plan Inset 1 | E | 16.7.25 | | LDA-202 | Detailed Landscape Plan Inset 2 | E | 16.7.25 | | LDA-203 | Detailed Landscape Plan Inset 3 | E | 16.7.25 | | LDA-204 | Detailed Landscape Plan Inset 4 | E | 16.7.25 | | LDA-205 | Detailed Landscape Plan Inset 5 | E | 16.7.25 | | LDA-206 | Detailed Landscape Plan Inset 6 | E | 16.7.25 | | LDA-207 | Detailed Landscape Plan Inset 7 | E | 16.7.25 | | LDA-301 | Landscape Details 1 | E | 16.7.25 | | LDA-302 | Landscape Details 2 | E | 16.7.25 |

Orders:

22. The Court orders:

23. The appeal is upheld.

24. Development consent DA-1383/2021 is modified in the terms in Annexure A.

25. Development consent DA-1383/2021 as modified by the Court is Annexure B.

E Espinosa

Commissioner of the Court

Annexure A (1.23 MB, pdf)

Annexure B (2.93 MB, pdf)

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