Jubilee Estate Group Pty Ltd v Liverpool City Council

File Number(s): 2025/39797

Publication restriction: Nil

Judgment

1. COMMISSIONER: Development consent was granted to DA-1186/2022 (DA) by the Land and Environment Court of NSW (the Court) on 24 July 2024, after a conciliated agreement: Jubilee Estate Group Pty Ltd v Liverpool City Council [2024] NSWLEC 1420. The development consent approved the demolition of existing structures, removal of ten trees, and subdivision of land into 19 Torrens Title lots including one residue lot, and associated site works including earthworks, provision of infrastructure and the construction of internal roads at 255 Fifteenth Avenue, Austral.

2. The applicant has now made an application to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to modify development consent DA-1186/2022. The modification application, with reference number DA-1186/2022/A (as amended and finally before the Court today) seeks to modify DA-1186/2022 by amending Conditions 20 and 21, to require the payment of contributions associated with the development application "Prior to the Issue of a Subdivision Certificate" (instead of “Prior to the issue of a Subdivision Works Certificate").

Conciliation and agreement reached between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The conference was held on 25 June 2025. I was appointed to preside. After more time was given, the parties have advised the Court that agreement has been reached in regard to the modification application. This agreement provides for the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court approving the modification of DA-1186/2022, essentially involving the change in timing of payment of contributions as outlined at [2].

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in a jurisdictional statement (JS) provided to the Court on 10 July 2025.

Jurisdiction

5. The parties are in agreement that it is within the Court’s power to uphold the appeal and approved the modification to DA-1186/2022 as now agreed. The matters requiring attention before such power is enabled are addressed below. The focus is s 4.55(2) and (3) of the EPA Act:

6. Having regard to s 4.55(2)(a) of the EPA Act, I accept the advice of the parties that the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted. When considered holistically, the development as modified would remain one for land subdivision and associated works. The timing of contributions does not affect the substance of the proposed development.

7. The rest of the statutory considerations in s 4.55(2) and (3) of the EPA Act either involve procedural tasks or “considerations”. With respect to the procedural tasks, the parties advise that relevant notification occurred, and no formal submissions were received.

8. Then in respect to matters for consideration the parties advise that the application involves “no or minimal environmental impact” (JS par 11); and that (JS pars 12-13)

“The proposed modification of condition 20 is consistent with the application of the Liverpool Contributions Plan 2021 Austral Leppington North.

In relation to the Special Infrastructure Contribution in condition 21, the modification application is consistent with the Environmental Planning and Assessment (Special Infrastructure Contribution - Western Sydney Growth Areas) Determination 2011.”

9. I note these points in relation to the consideration of such matters by, in particular, Council as the consent authority. But there is no requirement for a finding of the Court with respect to them in this judgement. This is for two reasons. First, is that mindful of McMillan v Taylor [2023] NSWCA 183 (at [62]-[65]), the question to be attended to in actioning s 34 agreements is whether there is a jurisdictional constraint to the Court’s exercise of power in accordance with the parties’ agreement, and these requirements for consideration are not to be thought of as jurisdictional constraints. Second is that mindful of North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 (at 480-481), modification applications, under now s 4.55 of the EPA Act, are to be understood to not provide for a statutory bar (or constraint), in the sense that jurisdictional findings of satisfaction might be otherwise be required for example under particular provisions of s 4.15(1) of the EPA Act.

Conclusion

10. In accordance with the above, I am satisfied that the jurisdictional pre-requisites have been met, and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

11. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders

12. The Court orders that:

13. The appeal is upheld.

14. Development Consent No. DA-1186/2022 is modified in the terms in Annexure A.

15. Development Consent No. DA-1186/2022 as modified by the Court is Annexure B.

P Walsh

Commissioner of the Court

Annexure A (239 KB, pdf)

Annexure B (1.16 MB, pdf)

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