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[2025] NSWLEC 1658
General information, not legal advice.
Land and Environment Court (NSW)
2025-09-17
Kullen AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Granny Flat Pioneers Pty Ltd v Liverpool City Council [2025] NSWLEC 1658
Hearing dates: Conciliation conference held on 13 March, 23 May and 16 June 2025
Date of orders: 17 September 2025
Decision date: 17 September 2025
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application No DA-242/2023, as amended, for the demolition of all structures and construction of a 60-place centre-based child care facility and removal of trees with associated landscaping and stormwater works, on land legally described as Lots 42 and 43 DP 4559 and known as 29 Carnation Avenue, Casula, NSW, 2170, is determined by the grant of development consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL — conciliation conference — agreement between the parties — centre based child care facility — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Sch 1, Div 2, ss 7, 8.7, 4.15, 4.16, 4.17
Land and Environment Court Act 1979 (NSW),
s 34
Education and Care Services National Regulations 2011
Environmental Planning and Assessment Regulation 2021 (NSW), Sch 6, Pt 3, s 38, cll 10, 23
Liverpool Local Environmental Plan, 2008, cll 2.2, 2.3, 2.7, 4.3, 4.4, 7.31
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 3, ss 3.23, 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.25, 3.26
Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline, Delivering Quality Child Care for NSW, September 2021
Liverpool Community Participation Plan 2022
Liverpool Development Control Plan 2008
Category: Principal judgment
Parties: Granny Flat Pioneers Pty Ltd (Applicant)
Liverpool City Council (Respondent)
Representation: Counsel:
A Hannam (Applicant)
J Mee (Respondent)
Solicitors:
Abbas Jacobs Lawyers (Applicant)
Liverpool City Council (Respondent)
File Number(s): 2024/380018
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application No DA-242/2023 (the DA) for the demolition of all structures and construction of a proposed child care centre for 60 children with basement parking on land at 29 Carnation Avenue, Casula, NSW, 2170, legally described as Lots 42 and 43 DP 4559 (the site).
The DA was lodged by Granny Flat Pioneers Pty Ltd (the Applicant) with Liverpool City Council (the Respondent) on 4 May 2023. On 19 April 2024 the DA was refused by the Respondent.
On 14 October 2024, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the EPA Act against the refusal of the DA by the Respondent.
The Respondent filed its SOFAC with the Court on 15 November 2024.
On 13 March 2025, the Court arranged a s 34 conciliation conference on site pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). No submitters attended the on-site view.
After the on-site view and discussions between the parties, the s 34 conciliation conference was adjourned was adjourned a number of times, to enable the parties to explore reaching a s 34 agreement.
On 16 June 2025 the parties confirmed that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, based on amended plans (amended DA). This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.
The parties advise that the s 34 agreement applies to an amended DA which includes a number of amendments to the proposed development, including:
Revised hours of operation (Saturday operations removed);
Amended architectural plans addressing the contentions raised in the Respondent’s Statement of Facts and Contentions (SOFAC);
Detailed landscape drawings, planting schedules and specifications;
An updated Noise Management Plan;
An updated Waste Management Plan; and
Amended Stormwater plans.
A signed s 34 agreement with Annexure A and the amended DA as agreed between the parties were filed with the Court on 16 June 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites provided by the parties on 16 June 2025.
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.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows below.
The parties advise that
the DA was made by Granny Flat Pioneers Pty Ltd as agent for AZZAMS TRADING PTY LTD the owner of the site on 4 May 2023.
The Liverpool Local Environmental Plan 2008 (the LEP) is the relevant environmental planning instrument that applies to the site; and
The site is zoned R2 Low Density Residential under cl 2.2 of the LEP;
Pursuant to cl 2.3 of the LEP centre-based childcare facilities are permissible with consent in the R2 zone; and
I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.
Pursuant to cl 2.7 of the LEP, demolition is permissible with consent.
Pursuant to cl 4.3 of the LEP, the maximum height of buildings on the site is 8.5m. The parties advise that the maximum height of the proposed built form is 8.407m and therefore complies with cl 4.3(2).
Pursuant to cl 4.4 of the LEP the maximum floor space ratio (FSR) for the site is 0.5:1. The parties advise that the proposed development has a FSR of less than 0.5:1 being 0.46 which complies both with cl 4.4 of the LEP and with the requirements of s 3.25 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) (See also para [30] below).
Clause 7.31 of the LEP relates to earthworks. The parties advise that a remediation action plan has been prepared due to the amount of asbestos found on the site and that the site will be remediated.
Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) operates to protect the biodiversity values of trees and other vegetation in non-rural areas of NSW and to preserve the amenity of non-rural areas of NSW through the preservation of trees and other vegetation.
The parties advise that:
The site is within a well-established residential area, having historically been used for urban purposes; and
The proposed development includes removal of identified trees and vegetation on the site with replacement planting proposed to soften the built form and assist with maintaining privacy to neighbouring properties.
Chapter 6 of the Biodiversity SEPP applies to the proposed development as the site is located within the Georges River Catchment. Chapter 6 of the Biodiversity SEPP seeks to manage and promote integrated catchment management policies. The parties advise that:
Section 6.6 water quality and quantity – the proposed development will have a neutral effect on the quality of water entering any nearby waterway and will have no impact on water flow in any nearby natural waterbody;
Section 6.7 aquatic ecology – the proposed development will not have any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation or aquatic reserve;
Section 6.8 flooding – the subject site is not identified as flood prone;
Section 6.9 recreation and public access – the proposed development is unlikely to have any impact on recreational land uses in the regulated catchment. The proposed development will not have any impact on public access to and around foreshores; and
Section 6.10 total catchment management – the proposed development is not likely to have an adverse environmental impact on any adjacent or downstream local government area.
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out.
The parties advise that:
The amended DA is accompanied by both a Detailed Site Investigation Report (DIS) prepared by Statiker Pty Ltd dated 29 March 2025 and a Remedial Action Plan prepared by Statiker Pty Ltd dated 30 March 2025;
The DIS concluded that the site can be suitable for development from a contamination perspective only, provided that it is implemented in accordance with a Remedial Action Plan to guide the Remediation process; and
Conditions of consent 110 and 128 will ensure that the above recommendations are implemented.
The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.
Chapter 3 of the Transport SEPP aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW.
Under s 3.23 of the Transport SEPP - Centre-based child care facility - matters for consideration by consent authorities, a consent authority must consider applicable provisions of the Child Care Planning Guideline 2021 (the Guideline) (at para [34] below).
The parties advise that the amended DA proposes a FSR of 0.46:1, which complies with s 3.25(1) of the Transport SEPP which provides for a minimum FSR of 0.5:1.
Section 3.26 of the Transport SEPP contains non-discretionary development standards for centre-based child care centres. The parties submit that the proposed development provides at least 3.25m2 of unencumbered indoor play space and at least 7m2 of unencumbered outdoor play space which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Services National Regulations 2011 (the Regulations), which require 3.25m2 of unencumbered indoor play space and 7m2 of unencumbered outdoor play space
The parties advise that compliance with the Transport SEPP is addressed in the Statement of Environmental Effects (the SEE) submitted in support of the DA.
The Regulations provide extensive controls and requirements in addition to that of Local Environmental Plans and Development Control Plans and includes licensing and approvals processes, including documentation requirements; facilities and equipment requirements; staffing requirements; child number requirements; operational requirements; administrative requirements; and probity check requirements.
The parties advise that compliance with the Regulations is assessed in the SEE submitted in support of the DA.
The Guideline establishes the assessment framework to deliver consistent planning outcomes and design quality for centre-based child care facilities in NSW. Section 3.23 of the Transport SEPP requires that the consent authority must take into consideration any applicable provisions of the Guideline before determining a development application.
The parties advise that compliance with the Guideline is addressed in the SEE.
Having considered the advice of the parties provided above at [12]-[36] I am satisfied that:
The Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b)-(e) of the EPA Act;
The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and
Approval of the proposed development is in the public interest.
Further, 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.
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.
The Court notes:
That Liverpool City Council, as the consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application DA-242/2023 made on 15 June 2025 to rely on the documents specified below:
| Architectural Plans prepared by: Mahn Design | | Name of Plan | Sheet Number | Issue | Date | | Site Plan | A106 | F | 23/05/2025 | | Site Section | A107 | D | 26/03/2025 | | Basement Plan | A108 | E | 17/04/2025 | | Ground Floor Plan | A109 | E | 17/04/2025 | | First Floor Plan | A110 | E | 17/04/2025 | | Roof Floor Plan | A111 | D | 26/03/2025 | | Demolition Plan | A112 | D | 26/03/2025 | | Elevations | A113 | E | 17/04/2025 | | Elevations | A114 | D | 26/03/2025 | | Sections | A115 | D | 26/03/2025 | | Schedule of Finishes | A117 | E | 17/04/2025 | | Sediment Control Plan | A129 | D | 26/03/2025 | | Fence Plan | A130 | E | 17/04/2025 | | Cut and Fill Plan | A131 | D | 26/03/2025 | | Front Yard Plan | A132 | E | 17/04/2025 |
| Additional Documents | | Name of Document | Prepared By | Reference No. | Date | | Landscape Plans | Earth Matters Consulting | Project no. CAN23 Revision: R4 | 23/05/2025 | | Noise Management Plan (NMP) for Proposed Childcare Centre at No 29 Carnation Ave, Casula | Anavs-Acoustic Noise & Vibration Solution P/L | No. 2023-049 Rev. 1 | 23/05/2025 | | Acoustic Report for the Proposed Childcare Centre at No. 29 Carnation Ave, Casula | Anavs-Acoustic Noise & Vibration Solution P/L | No. 2023-049 Rev. 2 | Amended date 06/05/2025 | | Operational Plan of Management Centre-Based Child Care Facility 29 Carnation Avenue, Casula NSW 2170 | PlanZone | Doc ID: POM.241108.AZ.AZ Version 1.0 | 23/05/2025 | | Detailed Site Investigation and Assessment Report Address 29 Carnation Avenue, Casula, NSW | Jeffrey Yu, Principal Environmental Consultant, Statiker Pty Ltd | Reference Number 23112_DSI_V1_29 Carnation Avenue, Casula, NSW_29032025 | 29/03/2025 | | Remedial Action Plan Site Address 29 Carnation Avenue, Casula, NSW | Jeffrey Yu, Principal Environmental Consultant, Statiker Pty Ltd | Reference Number 23112_RAP_V1_29 Carnation Avenue, Casula, NSW_30032025 | 30/03/2025 | | Traffic Impact Assessment | Statiker Pty Ltd | Version 2.0 | 16/04/2025 | | ESD & Section J (J1V3) Report | Dural Group Pty Ltd | Revision P1 | 20/03/2025 | | Accessibility Review | Azzams Trading Pty Ltd | Rev 2 | 23/03/2025 | | Construction & Demolition Waste Management Plan | Elephants Foot Consulting | Revision B | 18/03/2025 | | Operational Waste Management Plan | Elephants Foot Consulting | Report No. 6790 Revision B | 19/03/2025 |
The Court orders:
The appeal is upheld.
Development Application No DA-242/2023, as amended, for the demolition of all structures and construction of a 60-place centre-based child care facility and removal of trees with associated landscaping and stormwater works, on land legally described as Lots 42 and 43 DP 4559 and known as 29 Carnation Avenue, Casula, NSW, 2170, is determined by the grant of development consent subject to the conditions at Annexure A.
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Granny Flat Pioneers Pty Ltd
Liverpool City Council [2025] NSWLEC 1658