Gojnich v Liverpool City Council

Texts Cited: Liverpool Growth Centres Precincts Development Control Plan 2021

Category: Principal judgment

Parties: Radmila Gojnich (Applicant)
Liverpool City Council (Respondent)

Representation: Counsel:
J Dowidar (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Liverpool City Council (Respondent)

File Number(s): 2025/344931

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These proceedings relate to an appeal to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of the development application DA-214/2025. The development application seeks consent for the Torrens title subdivision of the existing allotment into two lots. The development is proposed at 90 Gurner Avenue, Austral (Lot 36 in Deposited Plan (DP) 3403) (the Site).

2. 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 was held on 20 February 2026. At the conciliation conference, Council confirmed that the development application, as amended, resolved Council’s legislative and merit concerns with the development. As a result, the parties have reached agreement. That agreement is for the grant of the application, as amended, subject to conditions. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (“McMillan*”*) at [51].

3. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions: see McMillan at [51]. I form this state of satisfaction on the basis that:

4. The development application was lodged with the consent of the owner of the land, satisfying s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW).

5. Pursuant to Liverpool City Council’s Community Engagement Strategy and Community Participation Plan 2022, the development application was not notified to neighbouring properties for two reasons. Firstly, notification is only required for the subdivision of lots less than 300m2. I note that the proposed subdivision will result in two lots, one being 5.057 hectares and the second 9987m2. Secondly, notification is not required for developments with limited environmental impacts. The parties agree and I accept that the development application does not propose any physical works to be carried out at the Site and therefore, there are no environmental impacts. Accordingly, no public submissions were received.

6. The proposed development is integrated development pursuant to s 4.46 of the EPA Act as it requires approval under s 100B of the Rural Fires Act 1997 (NSW). The Site is mapped as 'Bushfire Prone Land', and the development application seeks consent for subdivision of bush fire prone land for a residential purpose (s100B(1)(a)). The development application, including the accompanying Bushfire Protection Assessment, was referred to the NSW Rural Fire Service who issued a Bushfire Safety Authority on 26 June 2025. Compliance with s 4.47 of the EPA Act is achieved.

7. Pursuant to s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021, the consent authority must not grant consent to development unless it has considered whether the land is contaminated, and subject to its status of contamination, is satisfied that the land is or will be made suitable for the development. The development application is accompanied by a Preliminary Site Investigation which concludes that, in the context of this development application, no further investigations are required.

8. Further, the parties submit that subdivision without undertaking any physical work on the land does not involve the carrying out of development “on land”. I accept the agreed submission of the parties as their submission is consistent with the decision of the Court in Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 at [79].

9. The site is mapped as being within the Hawkesbury Nepean Catchment and is subject to the general planning controls in Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). The parties agree, and I accept, that the development application does not propose any works to be carried out on the Site and therefore, will not result in an adverse impact on the Hawkesbury Nepean Catchment. Accordingly, the Court can be satisfied that the matters set out in ss 6.6, 6.7, 6.8, 6.9 and 6.10 of the SEPP BC are satisfied.

10. Applying the Land Application Map, Appendix 4 ‘Liverpool Growth Centres Precinct Plan’ in State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (SEPP Precincts) applies to the land. Further, the Site is zoned R3 Medium Density Residential and part B1 Neighbourhood Centre. In determining the development application, I have given consideration to the objectives of both zones.

11. Pursuant to s 2.6 of SEPP Precincts, subdivision is permitted with consent in both zones.

12. The development application complies with the Minimum Lot Size and the residential density development standards that apply to the Site: ss 4.1AA, 4.1B of SEPP Precincts.

13. Pursuant to s 6.1 ‘Public utility infrastructure’ of SEPP Precincts, a consent authority must be satisfied, prior to the grant of consent, that the services essential to the development are available, or that adequate arrangements have been made to make them available when required. With the assistance of the Statement of Environmental Effects (SEE) and the subdivision plans, I accept I can be satisfied that:

(a) the Site is within Sydney Water's existing Sewerage Pump Station 1190 catchment; (b) the Site has direct frontage to an existing potable water and recycled water mains within Gurner Avenue; (c) there is an existing potable water meter on the Site that is currently served by Sydney Water; and (d) that there is an existing connection to electricity on the Site.

11. The Liverpool Growth Centres Precincts Development Control Plan 2021 (DCP 2021) applies to the Site. The SEE filed with the application details the compliance of the proposed development with DCP 2021. In determining the development application, I have considered the provisions of the development control plan pursuant to s 4.15(1) of the EPA Act.

12. Having reached the state of satisfaction that the decision is one that the Court could make 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)).

13. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, 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.

Orders

6. The Court orders that:

7. The appeal is upheld.

8. Development consent is granted to Development Application No DA-214/2025 for the Torrens title subdivision of the existing allotment into two lots at 90 Gurner Avenue, Austral (Lot 36 in DP 3403) subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (172 KB, pdf)

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