Greenfields Pastoral Holdings No. 1 Pty Ltd v Liverpool City Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38
State Environmental Planning Policy (Precinct – Western Parklands City) 2021, Ch 4, Pt 4.3, ss 4.3, 4.27, 4.40, 4.49
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 4.9, 6.6, Pt 6.2
Liverpool Local Environmental Plan 2008, cl 2.7

Category: Principal judgment

Parties: Greenfields Pastoral Holdings No. 1 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation: Counsel:
R O’Gorman Hughes (Applicant)
A Jucha (Respondent)
Solicitors:
Fishburn Watson O’Brien (Applicant)
Liverpool City Council (Respondent)

File Number(s): 2024/474929

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of a Development Application DA-427/2023 for the construction and use of a landscaping material supplies facility including a new driveway, parking shed, hardstand area, landscape material storage bays, stormwater improvement works, new on-site wastewater system, acoustic fencing and landscaping and tree removal at 45 Whitaker Road, Rossmore (Lot 4003 DP 260075) (the Site) by Liverpool City Council (the Council).

2. This matter commenced as a hearing however the parties, having reached agreement, requested that the matter be relisted as a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The request was granted and the conciliation conference, which I presided over, was held on 26 February 2026.

Outcome

3. At the conciliation, the parties reached agreement 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 one 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 joint reports, and the documents that are referred to in Condition 2 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.

5. The Court notes that the Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). The documents comprising the amended application were submitted to the Court on 26 February 2026 and are listed under Condition 2 of the conditions of consent at Annexure A. Changes made to the proposal and/or additional information submitted to address the contentions include:

6. An amended drainage design and flood impact assessment;

7. Amendments to the Traffic Management Plan to include road safety signage and identification of appropriate haulage routes;

8. Widening of the driveway to 14m and pavement reconstruction;

9. Agreement to conditions of consent related to ongoing management including annual independent environmental compliance audit and public feedback / complaints line; and

10. Provision of an acoustic assessment and acoustic barrier.

11. The parties advise that the amendments, additional documentation and conditions of consent resolved the respondent’s contentions and addressed the matters raised in submissions to the respondent’s satisfaction.

Jurisdictional matters

7. 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 (Precinct – Western Parklands City) 2021

8. Chapter 4 of State Environmental Planning Policy (Precinct – Western Parklands City) 2021 (WPC SEPP) applies to the site as it is within the boundaries of the Western Sydney Aerotropolis. While the site is not identified on the land application map, s 4.3 of the WPC SEPP provides that certain provisions apply to land within the Western Sydney Aerotropolis.

9. The Court notes that no relevant jurisdictional requirements apply as outlined in Pt 4.3 – Development controls – Airport safeguards.

10. Whitaker Road is mapped as an arterial road on the Transport Corridors Map under the WPC SEPP. In accordance with s 4.27 of the WPC SEPP the concurrence of Transport for NSW (TfNSW) is required for the proposed development. In satisfaction of this requirement TfNSW provided its concurrence to the proposal on 22 January 2025.

11. Section 4.40 also requires the consideration of certain matters prior to the granting of consent to development on land prior to a Precinct Plan. I am satisfied that consideration has been given to the relevant matters on the basis of the parties’ jurisdictional statement.

12. Further s 4.49 of the WPC SEPP requires that a consent authority be satisfied that public utility infrastructure is either available to a proposed development or will be made available prior to the grant of consent. On the basis of the existing use of the site, I am satisfied that relevant infrastructure is available. Further in respect of sewerage infrastructure, I note on-site sewerage management is proposed.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. I am also satisfied that consideration has been given as to whether the site is contaminated, and whether it is or can be made suitable for the proposed use as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, having regard to the Preliminary Site Investigation prepared by Down to Earth (June 2023). On this basis I am satisfied that the site is suitable for the proposed use.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. Section 4.9 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the proposal in respect of impact on koalas or koala habitat. On the basis of the parties’ agreement and the letter prepared by JEP Environment & Planning (25 February 2026) I am satisfied that the proposal will not have any impact on koalas or their habitat.

15. The site falls within the Hawkesbury Nepean Catchment under the BC SEPP, such that Pt 6.2 applies to the development application. In accordance with the requirement of s 6.6 Water Quality and Quantity the Amended Stormwater Management Report (DMC, 20 March 2024) demonstrates that the proposal will have a beneficial impact on stormwater quantity and quality.

Liverpool Local Environmental Plan 2008

16. The proposed development is for the purposes of a landscaping materials supplies facility which is a permissible use in the RU4 Primary Production Small Lots zone pursuant to Liverpool Local Environmental Plan 2008 (LLEP).

17. The development application proposes consent for demolition of an existing structure on site in accordance with the requirements of cl 2.7 of LLEP.

Other matters

18. The applicant is the owner of the site in accordance with s 23 of the EPA Reg.

19. The development application was notified between 25 August and 8 September 2023 with six (6) submissions received. It was further notified following amendment from 5 February to 20 February 2025 with a total of four (4) submissions received. In addition, at the commencement at the site view four (4) neighbours addressed the Court on their concerns in respect of the application. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submissions.

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 that:

23. The appeal is upheld.

24. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant shall pay the Respondent’s costs thrown away as a result of the amendments the subject of the Notice of Motion dated 18 February 2026, in the amount as agreed or assessed.

25. Development Application DA-427/2023 for the construction and use of a landscaping material supplies facility including a new driveway, parking shed, hardstand area, landscape material storage bays, stormwater improvement works, new on-site wastewater system, acoustic fencing and landscaping and tree removal at 45 Whitaker Road, Rossmore being Lot 4003 DP 260075 is determined by the grant of consent subject to conditions of consent at Annexure A.

H Miller

Acting Commissioner of the Court

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Annexure A (1.60 MB, pdf)