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[2026] NSWLEC 1153
General information, not legal advice.
Land and Environment Court (NSW)
2026-03-25
Young 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: Heidelberg Materials Australia Pty Ltd v Liverpool City Council [2026] NSWLEC 1153
Hearing dates: Conciliation conference on 19 February 2026
Date of orders: 25 March 2026
Decision date: 25 March 2026
Jurisdiction: Class 1
Before: Young AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application No. DA-1368/2021 for the construction and operation of a concrete batching plant with a capacity to produce up to 170,000 m3 of concrete per annum and an associated transport depot at 135 Lawson Road, Badgerys Creek (Lot 2 in DP226912) subject to the conditions set out in Annexure A.
Catchwords: DEVELOPMENT APPLICATION — s34 conciliation conference — concrete batching plant — agreement reached — orders made
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.14, 4.15, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9 (repealed), ss 6.65, 9.4
State Environmental Planning Policy (Industry and Employment) 2021, ss 3.1, 3.6, Sch 5
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.122
State Environmental Planning Policy Amendment (Water Catchments) 2022
State Environmental Planning Policy (Western Sydney Aerotropolis) 2020 (repealed), ss 14, 42, Pts 3, 4, 5
Texts Cited: Liverpool City Council, Community Engagement Strategy (2022)
NSW Rural Fire Service, Planning for Bush Fire Protection (November 2019)
Category: Principal judgment
Parties: Heidelberg Materials Australia Pty Ltd (Applicant)
Liverpool City Council (Respondent)
Representation: Counsel:
N Bergman (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)
Solicitors:
Allens (Applicant)
Liverpool City Council (Respondent)
File Number(s): 2025/169143
Publication restriction: Nil
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 Development Application No. DA-1368/2021 (DA).
The DA sought development consent for the construction and operation of a concrete batching plant with a capacity to produce up to 170,000 m3 of concrete per annum and an associated transport depot at 135 Lawson Road, Badgerys Creek (Lot 2 in DP226912) (the Site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 19 February 2026. I presided over the hearing and the conciliation conference.
Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), Liverpool City Council has approved amending the DA in accordance with the amended plans and documents provided to the Respondent and listed in Annexure A of the s 34 Agreement between the parties.
As the Amended DA is the subject of Court proceedings, it is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.
The Amended DA seeks consent for construction and operation of a concrete batching facility (together the Proposed Development), including:
aggregate storage bins and conveyors, a batching tower where inputs are weighed and discharged into concrete agitator trucks (including an area for storage of additives and admixtures) and slump stands;
a range of ancillary components including truck washout facilities, water recycling system, ancillary site office and staff amenities and car and truck parking facilities;
production capacity of up to approximately 240 m3 per hour, totalling approximately 170,000 m3 of concrete per annum (or approximately 400,000 tonnes per annum);
a truck depot located in the western portion of the site (within the Western Sydney Airport Public Safety Area) comprising car and truck parking, an office and an amenities building;
up to approximately 76,000 truck movements per annum, mainly comprising concrete agitator trucks for outbound products, up to 19-metre tippers, 25-metre B-double tippers and cement tankers for inbound materials (comprising aggregates and cement), or approximately 300 trucks per day;
employment of up to 37 employees or contractors;
operations 24 hours 7 days a week; and
a total of 44 car parking spaces (combined across the concrete batching plant and truck depot) for employees and visitors, 39 truck parking spaces (for concrete agitator trucks and tippers), 7 bicycle parking spaces and 4 motorcycle parking spaces.
On 18 February 2026, the parties submitted an 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 Amended DA, and subject to the conditions in Annexure A.
The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.
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.
For the reasons set out below, 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.
The DA was notified in accordance with the Liverpool City Council’s Community Engagement Strategy 2022 between 13 November 2025 to 10 December 2025. No submissions were received by Council.
I consider that the Amended DA is not required to be notified given that the amendments do not increase the impacts of the Proposed Development.
Parts 3, 4 and 5 of the Aerotropolis SEPP prescribe various controls and requirements that must be complied with in order for development consent to be granted.
Based on the information in the Amended Environmental Impact Statement (EIS) prepared by Colliers dated 31 October 2025 accompanying the Amended DA, the parties agree and I accept that the Proposed Development complies with all applicable controls and requirements under the Aerotropolis SEPP relating to aircraft noise, building wind shear and turbulence, wildlife hazards, lighting, airspace operations, public safety, flood planning, and design excellence.
I also accept the parties’ agreement that the matters in s 42 of the Aerotropolis SEPP relating to the provision of public utilities and interactions with adjacent development have been adequately considered in the Amended DA.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.
In this case, a Preliminary Site Investigation by Martens Consulting Engineers dated March 2022 and Detailed Site Investigation by EBG Environmental Geoscience dated 23 August 2023 have been carried out for the Site. These investigations confirm that the Site is suitable for the Proposed Development, subject to the implementation of the recommendations in the investigation reports.
Given the findings of these investigations and the fact that the recommendations have been incorporated into the conditions of consent in Annexure A, the parties agree and I accept that contamination has been adequately considered and the site is suitable for the proposed use in accordance with s 4.6 of the Resilience and Hazards SEPP.
The Site is located within the Hawkesbury-Nepean Catchment, as identified on the Hawkesbury-Nepean Catchment Map.
Section 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) provides that the former provisions applying to the Hawkesbury-Nepean Catchment continue to apply to applications lodged, but not finally determined, before the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022 on 21 November 2022.
As the DA was lodged prior to 21 November 2022, the provisions in force immediately before that date apply. These were contained in the now repealed Ch 9 of the Biodiversity and Conservation SEPP.
Pursuant to the Ch 9 (now repealed) of the Biodiversity and Conservation SEPP, the parties agree and I accept that the matters required to be considered by the consent authority in s 9.4 of the Biodiversity and Conservation SEPP which relate to potential impact on the Hawkesbury-Nepean Catchment have been adequately addressed in the Amended EIS.
Section 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry and Employment SEPP) provides that the consent authority must not grant consent for signage unless it is satisfied that the signage aligns with the objectives in s 3.1(1)(a) and meets the assessment criteria in Sch 5.
Based on the Amended EIS, the parties agree and I accept that the objectives in s 3.1(1)(a) and the assessment criteria in Sch 5 of the Industry and Employment SEPP are met in relation to the location, design and finish, character of the area, special areas, views and vistas, streetscape, setting or landscape, site and building, associated devices and logos, advertisements and advertising structures, illumination, and safety.
Pursuant to s 4.14 of the EPA Act, the Site is mapped as bushfire prone land, and the parties agree and I accept that, the Proposed Development conforms with the specifications and requirements of Planning for Bush Fire Protection 2019, as described in the Bush Fire Risk Assessment Report prepared by Advanced Bushfire Performance Solutions dated 15 November 2021.
Furthermore, the conditions of consent in Annexure A incorporate the recommendations from the NSW Rural Fire Service provided on 18 November 2022.
Based on the Jurisdictional Note, the Amended EIS accompanying the Amended DA and the documents referred to in Annexure A, 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.
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 against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.
The Court orders:
The appeal is upheld.
Development consent is granted to Development Application No. DA-1368/2021 for the construction and operation of a concrete batching plant with a capacity to produce up to 170,000 m3 of concrete per annum and an associated transport depot at 135 Lawson Road, Badgerys Creek (Lot 2 in DP226912) subject to the conditions set out in Annexure A.
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Annexure A (550 KB, pdf)
Heidelberg Materials Australia Pty Ltd
Liverpool City Council [2026] NSWLEC 1153