Gramt Group Pty Ltd v Liverpool City Council

Category: Principal judgment

Parties: Gramt Group Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation: Counsel:
J Garcia (Solicitor) (Applicant)
T Messenger (Solicitor) (Respondent)
Solicitors:
Messenger Cole Solicitors (Applicant)
Liverpool City Council (Respondent)

File Number(s): 2025/263335

Publication restriction: Nil

JUDGMENT

Introduction

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the deemed refusal of Development Application DA-8/2025, for the construction of 33 industrial units, provision of car parking, installation of landscaping and infrastructure and tree removal on land legally described as Lot 3 in DP 1303893 and known as 545 Fifteenth Avenue, Austral.

2. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference, which I presided over, was held on 6 November 2025.

Outcome

3. At the conciliation conference agreement was reached as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is a decision that the Court could have made in the proper exercise of its functions.

4. 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 Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the amended plans that are referred to in Condition 1 of Annexure A and additional information submitted in response to the contentions. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. Liverpool City Council, as the consent authority, consented to the further amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 6 November 2025 and are listed under Condition 1 of the conditions of consent at Annexure A. The changes made to the proposal that resulted in the application now being satisfactory to the parties include:

6. increase in the front setback to Fifteenth Avenue from 18.25 metres to 20.25 metres to ensure consistency with the landscape plans;

7. marking of the area of public road dedication on the half road to be constructed at the north of the development site;

8. removal of signage from the architectural plans; and

9. amendments to stormwater design in the engineering plans.

Jurisdictional matters

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 can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below.

State Environmental Planning Policy (Precincts - Western Parklands City) 2021

7. The site is zoned IN2 ‘Light Industrial’ and SP2 ‘Infrastructure’ in accordance with Chapter 3 Sydney Region Growth Centres of State Environmental Planning Policy (Precincts – Western Parklands City) 2021 (WPC Precincts SEPP). The proposed industrial development is permissible with consent in the zone in accordance with s 3.10 and Appendix 4 (Austral Precinct) and the parties advise that regard has been had to the objectives of the IN2 zone, as far as relevant, as required by s 2.3 of Appendix 4 The proposal also includes the construction of a road in the SP2 – Infrastructure zoned land. This use is similarly permissible with consent.

8. Section 4.3 of Appendix 4, height of buildings, applies to the site, permitting a maximum height of 13m. The proposal has a maximum height of 9m and therefore complies with this requirement.

9. A maximum floor space ratio (FSR) of 1:1 applies to the site in accordance with s 4.4 of Appendix 4. The proposal complies with this requirement having a maximum FSR of 0.497:1 as shown on the amended plans.

10. Part of the site has been identified for acquisition for road widening with the acquisition authority being Transport for NSW (TfNSW) in accordance with s 5.1 of Appendix 4. The proposal has been designed to be consistent with the future potential road widening.

11. Section 6.1 of Appendix 4 requires satisfactory arrangements in respect of essential public utility infrastructure, including water, electricity and sewage prior to the granting of consent. The parties advise that all services are available to the site in accordance with this requirement.

State Environmental Planning Policy (Resilience and Hazards) 2021

12. The provisions of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) also apply to the site. A Detailed Site Investigation Report (GeoEnviro Consultancy Pty Ltd, 11 March 2025) and Remedial Action Plan (GeoEnviro Consultancy Pty Ltd, 11 March 2025) have been prepared which conclude that the site will be remediated such that it will be made suitable for the proposed use. Conditions of consent have been included to this effect. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of the RH SEPP have been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021

13. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies to the subject land, being affected by an electricity easement, and requires that the electricity authority be advised of the proposed development and that any comments received within 21 days be considered. The parties advise that Endeavour Energy has been notified of the proposal and comments have been considered accordingly.

14. Section 2.122 Traffic Generating Development of TI SEPP also applies to the proposal and requires that the application be referred to TfNSW being industrial development greater than 5,000m2 which has access to a classified road. The parties advise that TfNSW has been advised of the proposal and their general terms of approval included in the conditions of consent.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. Consideration has been given to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) in respect of vegetation in non-rural areas however it is noted that the proposal seeks consent for tree removal and that therefore the provisions of Ch 2 do not apply.

16. The site is located within the Hawkesbury Nepean regulated catchment for the purposes of the BC SEPP and accordingly Ch 6 Pt 6.2 applies. I am satisfied in respect of the requirements of s 6.6 Water Quality and Quantity, s 6.7 Aquatic Ecology, s 6.9 Recreation and Public Access, s 6.10 Total Catchment Management and s 6.13 Hawkesbury-Nepean conservation area sub-catchment (in so far as they are applicable) on the basis of the parties’ agreement, the stormwater plans (Orion, various dates), the Stormwater Management Plan (Orion, December 2024) and the conditions of consent.

State Environmental Planning Policy (Sustainable Buildings) 2022

17. The embodied emissions of the proposal have been quantified (SET QS Consultants) as required in accordance with s 3.2 of State Environmental Planning Policy (Sustainable Building) 2022.

Other matters

18. The development application is made with the consent of the owners of the site in accordance with s 23 of the EPA Reg.

19. The Respondent notified the original development application between 13 and 29 January 2025. One submission, by way of support, was received in response to the notification.

Conclusion

20. 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)).

21. In making the orders to give effect to the agreement between the parties, 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

22. The Court orders:

23. The Appeal is upheld.

24. Development Application No DA-8/2025, as amended, for the construction of 33 industrial units, provision of car parking, installation of landscaping and infrastructure and tree removal on land legally described as Lot 3 in DP 1303893 and known as 545 Fifteenth Avenue, Austral is determined by the grant of development consent subject to the conditions at Annexure A.

H Miller

Acting Commissioner of the Court

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Annexure A (1.27 MB, pdf)