Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 3.30, 3.35, 4.1, 4.15
Sydney Water Act 1994 (NSW), ss 38, 39, 40, 73
State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Appendix 5, cl 4.6, 6.1

Leppington Main 88 Pty Limited v Camden Council [2026] NSWLEC 1104 | Case summary | Zoe

NSWNSWLEC

Leppington Main 88 Pty Limited v Camden Council

[2026] NSWLEC 1104

Land and Environment Court (NSW)|2026-03-31|Before: Dixon SC

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-03-31

Before

Dixon SC

Catchwords

DEVELOPMENT APPLICATION – State significant development –
commercial mixed-use development – whether adequate arrangements
have been
made for public utilities infrastructure cl 6.1(1) of Appendix 5 of State

Source

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Catchwords

DEVELOPMENT APPLICATION – State significant development –commercial mixed-use development – whether adequate arrangementshave beenmade for public utilities infrastructure cl 6.1(1) of Appendix 5 of StateEnvironmental Planning Policy (Precincts—WesternParkland City) 2021– Planning Proposal – whether certain and imminent – weight tobe given under s 4.15(1)(a)(ii) of the Environmental Planning and Assessment Act1979 (NSW)

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Leppington Main 88 Pty Limited v Camden Council [2026] NSWLEC 1104

Hearing dates: 14-21 October 2025

Date of orders: 31 March 2026

Decision date: 31 March 2026

Jurisdiction: Class 1

Before: Dixon SC

Decision: The Court orders:
(1) The appeal is dismissed.
(2) Exhibits are returned.

Catchwords: DEVELOPMENT APPLICATION – State significant development – commercial mixed-use development – whether adequate arrangements have been made for public utilities infrastructure cl 6.1(1) of Appendix 5 of State Environmental Planning Policy (Precincts—Western Parkland City) 2021 – Planning Proposal – whether certain and imminent – weight to be given under s 4.15(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (NSW)

There are two remaining contentions between the Council and the applicant:
whether adequate arrangements have been made for public utilities infrastructure for the purpose of cl 6.1(1) of Appendix 5 of State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (SEPP WPC) (contention 2); and
whether, although the development is fully compliant with the current Precinct Plan (Camden Growth Centres Precinct Plan 2013) under the SEPP WPC, determining weight should be given to the Leppington Town Centre Planning Proposal 2023 (LTCPP) under s 4.15 (1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), resulting in the refusal of consent (contentions 3 to 5).
The Site falls within the Leppington North Precinct of the Camden Growth Centres Precinct Plan 2013 (the Precinct Plan). Because the development has an estimated development cost of over $30 million, this application must be assessed against the controls set out in the Precinct Plan at Appendix 5 of the SEPP WPC, and the Camden Growth Centre Precincts Development Control Plan 2025 (current DCP), including the precinct specific controls in Schedule 2 – Leppington Major Centre.
The land use table under the Precinct Plan identifies that most of the Site is within Zone B3 – Commercial Core, with a relatively small area of the Site adjacent to Rickards Road zoned SP2 – Infrastructure for future road widening purposes. Therefore, the Proposed Development is permissible with consent.
However, for the development to be serviced, there needs to be an extension of the reticulation sewer and water main to the Site.
The evidence is that the Proposed Development requires the construction of a sewer line through at least the property located at 134 Dickson Road to the west of the Site (Ex C, Tab 13).
Relevantly, cl 6.1 of Appendix 5 of SEPP WPC, requires the Court, exercising the power of the consent authority, to be satisfied (prior to the grant of consent) that “adequate arrangements have been made” to make the sewer and water infrastructure available when required: Georges River Council v Eskander [2024] NSWLEC 98 (Eskander) [54]-[56]. That is, “adequate arrangements” must already exist and be supported by some form of tangible and objective proof before the grant of development consent: Eskander [57].
The Council raises no issue with the application that relates to cl 6.1 and the water infrastructure which will be on land controlled by the Council. However, the Council does take issue with the construction of a sewer line through land including 134 Dickson Road to the west of the Site, being land that is not owned by ALAND (the owner of the Site) (Ex C Tab 18). Put simply, the Council argues in the absence of “tangible and objective evidence” of any adequate arrangement with the adjoining owner for construction of the sewer works on its land that the Court cannot form the positive state of satisfaction mandated by cl 6 (CWS at [12]-[16]).
The applicant contends that it has made adequate arrangements with Sydney Water to ensure the disposal and management of sewer works from the Proposed Development, which will be made available when required. It relies upon the powers of Sydney Water to enter the Site to carry out the works; or by way of a s 4.6 request to make good its case (AWS at [35]- [43]).
As the cl 6.1 contention raises a jurisdictional precondition to the grant of consent it needs to be dealt with before any consideration of the merits.
The second contention concerns the Council’s exhibited Leppington Town Centre Planning Proposal (Ex C) (Planning Proposal).
This Planning Proposal was submitted by the Council, in conjunction with Liverpool Council, in 2023. In early December 2024, and after the Council’s public consultation concluded, the State, through the Department of Planning (the Department), took ownership as a State-Assessed Rezoning Proposal (SARP). This was done pursuant to the Department of Planning, Housing and Infrastructure’s State Significant Rezoning Policy (2024) (the Policy) (Ex 1R2, Tab 19, 1259).
As was explained at the hearing, the Policy provides a pathway for sites to be identified, and their rezoning “fast tracked to deliver strategically important land for new housing and economic opportunities” (Ex 1R2, 1262). The timing of that fast-tracked process in a SARP is 180 to 205 working days from the initial consideration of the proposal through to finalisation (Ex 1R2, 1264). Following exhibition, there is then a 40-day period of post exhibition amendments, after which the planning proposal proceeds to “finalisation” (Ex 1R2, 1624). As part of the finalisation process stage “the Department [is] responsible for the preparation of all necessary environmental planning instruments and maps, engaging with the NSW Parliamentary Counsel’s office and Public Spaces approval” (Ex 1R2, 172).
The evidence is that the Department is presently engaged in the finalisation process of post exhibition amendments (Ex 1R5 at [265]). And, while the Policy suggests that the proponent of the Indicative Layout Plan (ILP) will be given an opportunity to update its rezoning proposal, any technical studies and any Site specific DCP (Ex 1R5,1272), it is acknowledged that the Department is not bound by the terms of the Policy. Particularly, in circumstances where, as in this case, the Policy does not contemplate the situation where a rezoning is called in by the Department after exhibition and significant work has already been undertaken by the proponent.
On 26 August 2024 the Senior Legal Officer at the Department wrote to Council’s solicitors stating:

In submitting “that adequate arrangements have been made to make the disposal and management of sewerage available when required”, the applicant refers to arrangements between the site landowner ALAND with Sydney Water (AWS at [33]).
The applicant submits at the relevant time, the date of the hearing, the Court has before it “objective and tangible proof that an arrangement has been made” for sewer infrastructure to be available for the development when required by cl 6.1 (Eskander [23]).
The “objective and tangible proof” relied upon by the applicant, for the purposes of cl 6.1(1), is the letter prepared by Hill Consulting Engineers Pty Ltd dated 15 September 2025 and other documents in Ex C, Tab 13 which are said to be evidence that:
The applicant has made an application under s 73 of the Sydney Water Act 1994 (NSW) (SW Act) to obtain a compliance certificate in relation to the supply of water and disposal of sewerage at the Site (Ex C, Tab 13, p 201);
Sydney Water has issued its Notice of Requirements following the s 73 application (Ex C, Tab 21); and
A Developer Works Deed has been entered into with Sydney Water on 11 September 2025 (DWD) (Ex C, Tab 13, p 234).
The applicant submits that the DWD is an “arrangement” and a contract that is more than “something in the nature of an understanding” between ALAND and Sydney Water that is evidence that the necessary sewer infrastructure for the proposed development will be made available when required.
The applicant submits that the letter of 15 September 2025 from Milos Salatic, (Senior Water Servicing Coordinator for Sydney Water) is evidence that the plans referred to therein are consistent with and maintain compliance with the Sydney Water Notice of Requirements (Ex C, Tab 19).
The applicant emphasises Mr Salatic’s explanation in Part 4 of his letter that the sewer line extension for this development does not require an easement: s 1.3 of Sydney Water’s Easements Operational Guidelines (2022).
Furthermore, that Sydney Waster has power under s 37(2) of the SW Act to:

Clause 6.1 is a jurisdictional provision which prohibits the grant of development consent, unless I form a particular state of satisfaction.
The subject matter of cl 6.1 concerns, relevantly in this case, that adequate arrangements have been made to make sewer infrastructure available when required because the sewer pipe extending to the west of the Site is not available despite it being essential for the servicing of the Proposed Development.
The clause refers to “arrangements have been made” thereby identifying a temporal point for the state of positive satisfaction (Eskander [56]). They cannot be contemplated in the future; the nature of the arrangement is current and must be prior to the grant of development consent (Eskander [57]).
The “adequate arrangements” are also not expressly limited to adequate arrangements with Sydney Water, as the applicant would have it. To my thinking the clause also invites a consideration, in the circumstances of this case, of the position of the adjoining landowner at 134 Dickson Road, on whose land the work is required to be undertaken.
As the applicant submits the nature of the arrangement depends upon the context of the particular provision. In Codlea it was accepted that evidence of a willingness on the part of the relevant authorities to co-operate in a consensual way effected the arrangement. In Crighton Properties Pty Ltd v Kiama Municipal Council (2006) 146 LGERA 271; [2006] NSWLEC 297, Preston CJ observed that arrangement means something in the nature of an understanding, and in Eskander the Court held that there “must be some form of objective and tangible proof to constitute an arrangement as something made’” (Eskander [57]).
The applicant argues that the letter from Hill Consulting Engineers (Ex C Tab 13) written by Mr Milos to Mr Wilkes (the applicant’s consultant) is relevant as it evidences that Sydney Water does not require an easement for assets of this kind (Heading 4, p 202). However, as the Council points out, that is not the end of the inquiry because more than access is required to provide the sewer infrastructure. The applicant does not own the land where the sewer infrastructure is proposed. The documents the applicant relies upon refer to the consent of the relevant landowner(s) for the infrastructure to be actually installed.
Under the Heading 5 options, Mr Milos states that if the adjoining landowner’s consent is withheld (described as an unlikely event), Sydney Water has powers of entry under s 38 of the SW Act. And, in that event Sydney Water is prepared to use these powers of entry when a landowner has unreasonably denied access.
As the Council submits, the premise for the proposition that Sydney Water is prepared to use its powers to enter does not arise on the evidence. I have no understanding of whether there has been an unreasonable denial of access by the adjoining landowner. In fact, there is no evidence as to any communication with the adjoining landowner.
The feasibility letter from Sydney Water (also relied upon by the applicant to support its adequate arrangements) under the heading “5.2 Entry onto the neighbour’s property” refers to forms provided by a listed water provider (WSC) that must be signed by the owner of the land to which entry is sought (Ex P Tab 4). The letter also contemplates, if required, the WSC negotiating with the adjoining landowner for permission to enter and the payment of compensation. I have no evidence of these matters being addressed.
The DWD (Ex P Tab 5) also requires the applicant to obtain entry and access rights from the adjoining owner, prior to the carrying out of the infrastructure works. Again, there is no evidence that the requirement has been satisfied or permission sought from the adjoining landowner to satisfy the terms of the DWD.
At this critical stage, all I know is that Sydney Water does not require an easement for access and that s 3.2 concerning easements is not engaged. However, this does not restrict the operation of cl A3.1 and there must be some property right that is engaged by the developer in order to carry out these sewer works and permanently install a pipe on its neighbour’s land (Ex C; T322:1-12).
At the time of this decision, contrary to the applicant’s submissions, there is no satisfactory evidence before the Court addressing the impacts of the installation of the proposed sewer works on the adjoining land. No understanding of how intrusive they will be or the level of detriment, if any, to the adjoining landowner’s property. I am not prepared to impose the applicant’s Condition 5 Part 1.1. The deferral of these essential works is inappropriate. Clause 6.1 mandates a state of satisfaction prior to the grant of consent (Eskander [21]).
Accordingly, in the absence of satisfactory evidence I cannot form the requisite state of satisfaction under cl 6.1 and the clause requires me to refuse this application.

At [44]-[69] of its written submissions, the Council identifies documents comprising of the Planning Proposal and “the best evidence before the Court of the departments’ proposed changes to the Council’s draft precinct plan”. The applicant sets out at [53] of its written submissions “a package of documents, including a draft planning instrument, a draft DCP and a Contributions plan and possibly other documents” which in its view constitutes the Planning Proposal.
While the applicant accepts that the Planning Proposal is a relevant consideration under s 4.15(1)(a)(ii) of the EPA Act, it contends that the Council has failed to establish that the Planning Proposal is both certain and imminent. Therefore, it contends that the Planning Proposal should be given minimal weight and the fully compliant application under the current controls be approved.
The applicant asserts that at least three officers of the Department with relevant knowledge should have been called by the Council to assist the Court with an update on the timing of the Planning Proposal’s finalisation. In the absence of such evidence the Court is unable to draw an inference that the Department would not have assisted the Council’s case.
The applicant argues that the Planning Proposal has undergone significant change since being taken over by the Department. It contends that the proposed rezoning of the Site from RE1 to B4 and the change to the public space through an unexplained DCP process supports its argument that the draft instrument is far from settled (T161:47; T162:21). (It rejects Mr Matthew’s evidence that a process of acquisition through a DCP (similar to that followed by Canada Bay Council) is appropriate and contends that his evidence only adds to the uncertainty of the draft instrument.)
The proposed changes to the maximum height of buildings control, the FSR control for the Site (and possibility other sites) (Ex 1R3 p 24-25), the changes to the bus terminal (which TNSW oppose) (Ex R4), and the alteration of the commuter car park on the south side of the station under the LTCPP foreshadowed on 10 October are all submitted as indicative of an unsettled draft Planning Proposal (T205:24). And, the prospect that the lot levy will exceed $30,000 and require approval from IPART is said to only complicate matters further in terms of delay and finalisation by 30 March 2026.
The applicant believes that the Council’s decision not to tender the public submissions made by landowners and stakeholders following notification suggests real community opposition to the draft Planning Proposal. And, the Council’s failure to disclose the Council officers’ assessment reports for the public submissions only adds to the uncertainty of the whole process (T127:13; Ex 1R11). The applicant is also highly critical of Mr Matthew’s failure to disclose during joint conferencing his knowledge about proposed major changes to zoning and other controls affecting the applicant’s land. Albeit, the applicant embraces Mr Matthews’ reservations about the finalisation date of 30 March 2026 and invites me to do the same (T177:11).
The applicant submits the Department’s letter of 13 August 2025 with the slide shows of more recent iterations of the Department’s plans for the Site ILP at Tab 14 Ex 1R2 (Ex 1R3 Tab 7) demonstrates that the terms of the instruments are now very different to the original proposal. The design principles forwarded on 2 October 2025 under cover of a letter described as “indicative only” and “not relied upon for final designs and approvals” are also said to be far from settled.
The applicant invites me to accept Mr Wilkes evidence over that of Mr Matthews and Mr Pritchard and find that the changes identified in the draft Precinct Plan are so extensive that they require a redraft of the DCP. And, the caveats entrenched in the draft such as “indicative only”, “subject to change” and “not be relied on for final designs and approvals” only underline the fact that the draft instrument is far from “settled” and that the changes are not details but changes to matters of substance (AWS at [68]).
In support of its position, the applicant relies on the same cases as the Council to argue that the draft plan, draft DCP and Contributions Plan are not certain in their terms, including in relation to ‘substance’ nor “imminent in their making”: Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 (Architects Haywood) (AWS at [59]-[60]). It submits, as the Department’s letter of 5 December 2024 identifies, the Department intends to collaborate with the Council throughout the finalisation process of the rezoning process and there will be inevitable delays as public participation is enshrined in the EPA Act and is an object of the planning system in NSW.
It is further submitted, given the work still to be done in the post exhibition and finalisation stage (AWS at [70]), and the time elapsed to date that gazettal of the instant, by 30 March 2026, or the foreseeable futures is not achievable.
For these reasons, the applicant submits that the Court cannot place determining weight on the draft LTCPP.
The applicant submits that the lack of certainty in relation to the planning aims and objectives that will apply to the Site are matters that prevent the Court from even asking the question as to whether the Proposed Development is “antipathetic” to the draft instrument: Topwei One Pty Limited v Camden Council [2025] NSWLEC 1296.
However, in the event that the Court considers that the exhibited draft plan should be afforded some weight, the applicant submits that the Court should accept that the broader objectives of the LTCPP will not be thwarted by an approval of the application (AWS at [72]-[76]). The applicant relies on the evidence of Mr Pritchard, the Council’s planner, that the proposed development is consistent with the Department’s latest version of draft maps (Ex 1R3 Tab 10) and that the development is consistent with zoning, height and density controls (T249:9-13). Consistent with the reasoning in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 (Terrace Tower) at [6]; Architects Haywood, and Edward Listin Properties Pty Ltd v North Sydney Council (No 2) [2000] NSWLEC 181 Talbot J at [15], the applicant submits that its Proposed Development is consistent with the planning approach in the Draft Planning Proposal at (AWS at [76(a)-(d)]).
The applicant submits that the evidence demonstrates that the Proposed Development is consistent with the latest draft maps from the Department. Furthermore, nothing in the LTCPP requiring the height of buildings to go to 65m or 95m with an FSR of 5:1. These development standards are maximums (AWS [82]). The Objective (1)(c) of the proposed height of buildings standard was intended to “facilitate higher density development” but not mandate it (Ex 1R2 p 822). Therefore, the Proposed Development does not offend these draft controls.
The applicant rejects the Council planner’s comment at [139] of the Joint Report (Ex 1R5) that if the Proposed Development were approved, “it would deprive Council of the future opportunity to acquire the land proposed for public open space or the land proposed for a public road and linear plaza on the Site, once rezoning is finalised” and argues that this comment is made without proper foundation. It submits that it is always open to the Department or Council to negotiate with the applicant to achieve a modified outcome. It can also acquire the Site or at least those parts of it that are proposed to be used for recreation.
For these reasons the applicant submits that the grant of development consent does not frustrate the Council or the Department’s vision for the land.
Additionally, the applicant submits that the Council’s use of the draft instrument in the LTCRPP and DCP is an indirect way of imposing more onerous standards than those outlined in the current DCP in respect of this application.
The applicant refers the Court to s 4.15(3A)(a) of the EPA Act which provides that if a proposed development complies with standards fixed for the development in a DCP, then the consent authority cannot require more onerous standards with respect to that aspect of the development. It contends that by the Council inviting the Court to impose more onerous standards by “moving the Court to give significant weight to the LTCRPP, including the draft Precinct Plan, the draft DCP and draft ILP” is contrary to s 4.15(3A)(a) (Ex 1R5 p 222). Ultimately, the applicant submits that s 4.15(3A)(a) operates so as to prevent the consent authority from reforming the Proposed Development on the basis that it is inconsistent with the LTCRPP and/or the Draft Precinct Plan as it concerns building footprint, envelope and massing if it satisfies the standards relating to those matters in the current DCP (Ex 1R5 Appendix J p 222)
As the proposal complies with the current DCP controls in relation to building footprint, envelope and massing, the controls for those matters under exhibited draft instruments are more onerous. It is submitted that cannot be relied upon to refuse consent if the draft Planning Proposal is determined to be certain and imminent.

It is clear from the evidence particularly of Mr Wilkes that the applicant has been in contact with the Department about the changes to the draft Planning Proposal and the broad changes affecting sites A and B (which it owns) well before the hearing date. And, in respect to imminence, the date of 30 March 2026 was also made known to the applicant well before the hearing.
The terms of and the detail of those communications between the applicant and the Department are referenced in Ex 1R3 and the transcript.
Relevantly these communications with the Department confirm that none of the changes listed in the email of 7 August 2025 between the Department and the applicant’s Director (and depicted on the Site A & B slides of 13 August 2025; Ex 1R3 pp 24-25) in any way concerns the planning approach to the Site apart from Item 4. These communications identify the need for an open space corridor on Site A but indicate the final shape will be subject to design principles which were still being refined.
Accepting that those were the issues that the Department was considering for Site A as of 13 August 2025, and that the Design Principles were in fact drafted by 2 October 2025 (Ex 1R3 Tab 7, p 27) it is difficult to accept the applicant’s submission that it only became aware of changes to its land on 10 October 2025.
That said, the exhibited Planning Proposal is a draft instrument, the consideration of which is required by s 4.15(1)(a)(ii) EPA Act is engaged. The fact that the Department is considering amendments does not change the characterisation of that draft instrument. It must be acknowledged that the Act contemplates changes to a draft instrument even after exhibition (s 3.35). Further, the exhibited draft falls within the wide rubric of considerations that fall within the concept of the public interest: Architects Haywood at [81].
As the Council submits there cannot be an expectation for the purpose of legislation (Part 3 of the EPA Act) that requires re-exhibition of a draft planning instrument following each and every alteration made to the draft in response to a consideration of public submissions: Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 at [158].
The requirements of certainty and imminence are conjunctive.
The critical question, addressing certainty, is whether the planning approach has been settled and any future amendments (at this time perhaps unknown) will be matters of detail rather than substance. The imminence issue is then addressed by asking “…will they be brought into force within the reasonably foreseeable future?”: Architects Haywood at [33].
For the reasons identified by the Council (CWS at [79]-[90]), I am satisfied that the substance of the exhibited Planning Proposal is settled and certain. There may be matters of detail changed but the evidence suggests that the purpose of the planning instrument will not change.
In that regard, it is to be noted that the Site is located within the inner core of the proposed town centre under the Planning Proposal in a prominent and strategically important location. Under the Planning Proposal, it seems settled that there will be a civic park on the Site which will “create [a] more legible and central heart for the town centre and provide a location capable of accommodating larger community events” (Ex 1R2, p 566). It will include an east-west linear plaza which will provide a “wide footpath to allow for public seating and nooks and opportunity for retail breakout whilst maintaining clear movement paths” (Ex R2 Tab 7, 28-29). The central north-south plaza on the Site remains an important feature and as recently as 2 October 2025 the Department advised the applicant of the design principles for that plaza and the Council received a copy of those design principles on 8 October 2025 (Ex 1R3 33).
In forming that view I accept that there is no onus on the Council in this case to prove the draft instrument is both certain and imminent. Nor does anything turn on the fact that a representative of the Department was not called to give evidence about the status of the draft instrument (a course that was also open to the applicant but not taken) (CWS at [77]). I also do not read anything negative into the fact that the Court did not receive copies of all submissions made as a result of the exhibition of the Planning Proposal. It is not necessary in this case to know the precise nature of the issues raised by other submitters. The most relevant matter at this point is the attitude of the Department who relevantly have spent a 12-month period considering these submissions, as Mr Matthews explained to the Court (T158:16-37).
As the Council identified, the proposed instrument has had four critical features affecting the site which have remained consistent throughout the entire process namely:
north-south park/plaza;
east-west linear plaza;
greater height and density on the Site given its proximity directly adjacent to the train station; and
an east-west road partially located in the south-west corner of the Site.
Whilst the north-south park appears to have narrowed into a 35m wide open space park/plaza, its location in the centre of the Site remains the same.
There has been no change to the location of the east-west linear plaza since public exhibition.
The change in the mechanism for the provision of those areas of open space is of no moment. Contrary to AWS at [57(k)], the mechanism is not only the proposed DCP but provisions in the proposed SEPP itself, as Mr Matthews explained (T162:1-8,45-50; T163:9-13), and as is clear from the Department’s September letter (Ex 1R3, 36). It is the planning approach that those mechanisms embody which is critical. Whether it be by Council’s mechanism or the Department’s, the planning vision and approach is the same; an area of open space central to the Site, intersected by an east-west linear plaza. In any event, as noted above, the view of the Department is that it is “unlikely” that any developer “would choose to forego the incentives and not deliver any of the Civic Plaza” (Ex 1R11, 3).
Similarly, whilst there have been changes to proposed density and height controls, the maximums have increased. As the Council submits the Department has not only reinforced the planning approach of increased density in the inner core but “has decided to double down” (CWS at [87]). That is, in its own words, partly a response to the need for greater housing arising from the housing crisis (Ex 1R3, 36).
The Applicant places heavy reliance on the references in the Departmental communications where it is said that “proposed changes are continuing to be refined and are subject to change” (Ex 1R3, 35, 37). Those references are hardly surprising as the Department has not yet forwarded its changes to the Minister’s office (T165:17-21). However, the likelihood is that any further changes are likely to be mere matters of detail, or if the Council’s suggestions regarding open space are accepted, the applicant’s Proposed Development will be even more inconsistent with the vision for the Leppington Town Centre.

The word “imminence” means “temporal proximity, falling short of presence or arrival: Terrace Tower at [51]. However, it is a relative concept and depends upon context (CWS at [104]). In this case, the strategic process commenced in 2017 and on any view the process is well advanced. Considered in context, the making of the instrument is imminent.
The evidence before the Court is that the Planning Proposal has been exhibited and is in the stage of finalisation by the Department (Ex 1R5, 265).
Various sources confirm that the Department expects that the proposed instrument will be finalised by end of March 2026. Mr Wilkes confirmed that the Department had also indicated that date to him on 31 July 2025 when he was dealing with a DA for mixed use development at 141 and 153 Byron Rd (T270:22-25; Ex 1R12, p 37).
The Council was also advised in writing on 26 August 2025 by the solicitor of the Department of the anticipated finalisation date of March 2026. Mr Matthews gave evidence that as recently as 14 October 2025, officers of the Department had told him that they remained “committed” to finalisation of the Planning Proposal by end of March 2026, adding that it takes about 3 months within the Minister’s office (T227:5-130). The Planning Proposal has been identified as State Significant and by all accounts the State Government is finalising the process after multiple years of planning at both the State and local levels as part of the redevelopment of western Sydney alongside the Aerotropolis.
While the precise finalised form and detail of the draft instrument and the documents under it may change, the evidence is that the substance of the instrument is otherwise certain: Architect Haywood at [33]; Terrace Tower at [47]; Village McEvoy Pty L**imited v Council of the City of Sydney (No 2) 176 LGERA 119; [2010] NSWLEC 17 at [50]. As the Council submits, the planning vision and approach is this same (above at 107).
Further to my findings above, at [104]-[107], I do not accept, as the applicant contends, that the references in the Department’s communications to “proposed changes [which] are continuing to be refined and are subject to change” to be anything other than matters of detail.
There is no evidence of the Department’s intention to re-exhibit its post exhibition changes to the Council’s Planning Proposal. In the communications with the Department before the Court, the changes to the Planning Proposal are consistently referred to as “post exhibition changes”. This is also consistent with communications to Mr Matthews by Departmental officers at the fortnightly meetings (T219:36-40).
Accordingly, I find that the Planning Proposal for the Leppington Town Centre is both certain and imminent (Terrace Tower at [46]). The changes to the planning controls that relate to the development Site in the Planning Proposal will be made, and made in the foreseeable future as the Council submitted. The Court has before it multiple references from multiple sources that the Department anticipates that the proposed instrument will be finalised by the end of March 2026. The evidence supports a finding that the finalisation of the draft is in the foreseeable future: Terrace Tower at [47].
The evidence is that the applicant was made aware of the changes to the proposed zoning, height and FSR controls for the Site and its anticipated finalisation date of the end of March 2026 by the Department in July and August 2025 (T270:22-25).
The mere fact that evidence is hearsay is not on its own sufficient to discount its reliability. Mr Matthews gave clear evidence of what he was told by the Department. There is nothing to suggest that he was mistaken in his evidence, particularly given the consistent position expressed by the Department in its other dealings (including with the applicant). In that circumstance, to reject Mr Matthews’ evidence of what he was told by the Department would require an adverse credibility finding which is simply not available. Nor was any basis for such a finding put to him in cross-examination, as in fairness to Mr Matthews it should have been: Browne v Dunn (1893) 6 R 67 (HL).
Mr Matthews was challenged in cross-examination about the likelihood of the 30 March 2026 date being achieved, principally on the basis of four matters:
The Council officers’ response to the Department dated 30 September 2025 proposed a re-exhibition of the proposed post-exhibition changes (on the basis that there was a proposed significant increase in the open space adjacent to the existing and proposed school sites);
The Council also requested that the proposed post-exhibition ILP should be supported by an infrastructure delivery plan and a contributions plan which relates to the amended ILP;
The contributions plan will need to be referred to IPART; and
The post-exhibition changes to the planning instrument are yet to be documented.
Mr Matthews accepted that it would be “a difficult job to achieve” the 30 March 2026 date if re-exhibition was required and the amended infrastructure delivery plan and contributions plan were required to be re-exhibited together with the proposed changes to the draft SEPP. However, as the Council submits the “if” is not made out.
In re-examination, Mr Matthews confirmed that the Department’s position was that no further exhibition was required, and that the Department was not contemplating delaying the making of the amendments to the SEPP until after changes were made to the infrastructure delivery plan, contributions plan or draft DCP.
I accept Mr Matthews evidence that the Planning Proposal is not following the Policy route, but the Department’s streamlined process. The Minister is not obliged to re-exhibit the prosed instrument (or exhibit at all) (s 3.30(1) of the EPA Act) and the evidence suggests there will not be a renotification. I also accept that the finalisation of the proposed instrument is not dependent upon the finalisation of the contributions plan. Nor do I have any understanding or need to understand the Department’s position in respect to the role of IPART of if it is intended that the contributions exceed $30,000.
As the Court held in Architects Haywood at [33] and Terrace Tower at [47], the question is whether the planning approach which the new instruments adopt can be regarded as certain to be brought into force within the reasonably foreseeable future. For the reasons stated the answer to that question is yes. Accordingly, I find the date for finalisation of the Planning Proposal is in the foreseeable future and imminent, if not 30 March 2026.

I accept Mr Smith’s expert assessment as it applies to this case. The Proposed Development clearly conflicts with numerous components and policies advanced in the Planning Proposal, as amended by the Department. I accept that “construction of an enclosed shopping centre would prevent the delivery of the planned plazas. The hotel would do the same for the linear east -west plaza. It would remove the green entry statement for those arriving at the Leppington town centre and funnel them into a private shopping centre” (CWS at [115]-[117]).
As Mr Matthews identifies in the joint report the proposed civic park is critical to defining the heart of the town centre. This is a key element of the draft precinct plan and draft DCP. Removal of the linear plaza significantly reduces the activation of the precinct as a whole and reduces desired line though the Site (Ex 1R5 at 126). The purpose of the park is to deliver a significant public open space to support the planned commercial activity, public transport users, workers in the proposed strategic centre and residents of the planned high density residential dwellings. The DA would thwart this by preventing future development of the Civic plaza (Ex 1R5 at 129(a)).
As the Council submits (CWS at [130.4]) the DA would prevent the future development of the linear plaza which:
Has a purpose to enhance pedestrian amenity along Byron Road creating a calmer, cooler and more present streetscape that supports ground floor commercial uses and encourages activity and encourages views to Scalabrini Creek (Ex 1R5 at [130.4(i)]); and
Utilises pedestrian desire lines toward Leppington Station and between riparian corridors, facilitating movement throughout what is envisaged to be some of the most heavily trafficked parts of Leppington Town Centre and linking green spaces into a network (Ex 1R5 at [130.4(ii)]).
By preventing these two elements the development “would completely break the link between the public domain green network focussed on the existing natural creek lines and its connection with the Town Centre Core and the Railway Station. It would remove a significant street (the planned linear plaza), frustrating the delivery of the tree canopy and cool outdoor spaces” (Ex 1R5 at [130.5]).
Mr Wilkes ultimately accepted that the Proposed Development does not allow for the north south plaza (T145:31); cannot accommodate the linear plaza in the area of the proposed shopping centre (T150:47) and is fundamentally inconsistent with the density pyramid approach adopted by the Department (T141:45).Mr Wilkes also accepted that the 25m east-west connecting road which is slated for acquisition under the Department’s ILP (presumably by the Council) would not be able to be provided if the DA were approved and proposed development constructed ( T150:42-49; T151:1).
I do not accept Mr Smith and Mr Wilkes’ evidence that the planning vision in the Proposed instrument is only “partly thwarted by the Proposed Development” because the Site is only a small part of the land affected by the Planning Proposal. Their evidence seriously downplays the significance of the location of the Site and the planning approach under the Planning Proposal. I prefer Mr Matthew’s evidence as it better reflects the planning purpose disclosed in the Planning Proposal (its underlying documents) and the approach taken by the Department in relation to the Site. And, I accept his expert assessment that the development is antipathetic to the vision, objectives and intended outcomes of the planning proposal (Ex 1R5, 150).
Moreover, I reject the applicant’s criticism of Mr Matthew for not disclosing in the joint report his knowledge that the final form and size of the north-south plaza on the Site had not been finalised (Ex 1R5, 149). I accept his apparent conflict between his obligations as an expert and his legal obligation not to commit a breach of confidence with the Department (CWS at [134]-[135]). As it happened, his evidence was given on the basis that the specific terms were not “set in stone”. As such, this does not warrant giving less weight to his evidence, particularly in circumstances where I accept it largely reflects what is obvious from a review of the Planning Proposal and a comparison between the proposed development and the department maps as the Council contends. That said, criticism can equally be made of Mr Wilkes’ failure to disclose in the joint report his knowledge of changes to the proposed zoning, height and FSR and open space following earlier meetings with officers of the Department (T270:22-25).
For the reasons stated, as submitted by the Council (CWS at [114]-[137]), I find that the proposed development is antipathetic to the planning purpose of the draft Planning Proposal. It substantially undermines the achievement of critical objectives that underpin the proposed instrument and for that reason the DA should also be refused.

The applicant submitted that because the DA is fully compliant with the relevant controls in the current DCP that by reason of s 4.15(3A) of the EPA Act, the current DCP will override the Planning Proposal, and the Court will not be able to refuse the DA based on the new requirements in the Planning Proposal (AWS at [86-131]).
It contends that the Council’s use of the draft instruments in the LTCRPP and the DCP is an indirect way of imposing more onerous standards than those outlined in the current DCP on the applicant (AWS at [88]; Letter of Advice dated 4 May 2025; Ex 1R5, p 222).
However, I do not accept their argument. A refusal of the application on the basis that it will undermine the strategic planning purpose and vision contained in the proposed instrument is not requiring a more onerous standard. It is a consideration of a draft instrument under s 4.15(1)(a)(ii). Moreover, being compliant with a DCP does not mean that a DA cannot be refused – the DCP is not alone determinative. The requirement in s 4.15 is, as the Council submits, to consider the DCP and other matters – there is no hierarchy: Terrace Tower at [56].
As the Council submits, it is almost inevitable that the new planning instrument will be inconsistent with the current controls. The weight to be given to the new instrument cannot depend on how closely the development aligns with existing controls that are about to be replaced. If the extent of a development’s inconsistency with an existing DCP is a determinative matter under s 4.1(a)(ii), then the section would achieve nothing.
The term “standards” for aspects of the development attracting the operation of s 4.15(3A)(a) of the EPA Act is not defined other than to include performance criteria, however, it must be acknowledged that not all DCP provisions can be said to set standards. Some provisions encourage a particular outcome. In all cases context is relevant.
The alleged standards that the applicant relies upon are set out at AWS at [104]-[109]. Namely the land use “retail core” is to occupy the bulk of the Site, and buildings are to be built to the boundary with zero setback and provide active street frontages. However, these are not standards with respect to an aspect of the development. The changes proposed under the Planning Proposal are similar to requiring a complete redesign of the development on the Site. Contending that the DA should be refused on the basis that the proposed development thwarts the objectives of the planning rationale of the Planning Proposal does not involve requiring more onerous standards.
The meaning of “onerous” in s 4.15(3A) needs to be considered having regard to the purposes of the Act. Those purposes focus on environmental and planning matters and the financial burden of compliance with the new LEP provisions as detailed in the applicant’s feasibility evidence, if relevant, is not established. There are no concept plans showing the various alternative developments such that the Court can assess financial feasibility. Focussing only on the draft DCP as the applicant identified in opening, I reject its argument in respect to s 4.15(3A) of the EPA Act for the same reasons (CWS at [140]-[157]).
Finally, when I interrogate the task under s 4.15(1)(a)(ii), it requires that I take into consideration “any proposed instrument that is or has been the subject of public consultation under the Act and that has been notified to the consent authority” and determine the weight to be given to the draft instrument having regard to the certainty of its terms and the imminence of its making. In that consideration I will have regard to the draft DCP as a component of the proposed instrument. However, I am not imposing a more onerous standard than the current DCP. I am not imposing any standard.

Leppington Main 88 Pty Limited v Camden Council

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English brief of this case

Catchwords

Judgment

JUDGMENT

Overview

Contention 2 – cl 6.1 adequate arrangements

Applicant’s position

Council’s position

Recourse to Sydney Water’s powers

Finding – cl 6.1

Alternative arrangement – clause 4.6 request

Contentions 3 to 5 – Planning Proposal

Consideration – the Planning Proposal

Is the Planning Proposal imminent?

Whether the Proposed Development is antipathetic to the settled Planning Proposal

The section 4.15(3A) argument

Conclusion

Orders

S Dixon

Senior Commissioner of the Court

Parties

Legislation Cited (2)

Cases Cited (11)