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Mackenzie Architects International Pty Ltd v Liverpool City Council [2025] NSWLEC 1634 | Case summary | Zoe

NSWNSWLEC

Mackenzie Architects International Pty Ltd v Liverpool City Council

[2025] NSWLEC 1634

Land and Environment Court (NSW)|2025-09-03|Before: Gray C

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-09-03

Before

Gray C

Catchwords

APPEAL – development application – residential flat building
containing affordable housing – conciliation conference
– agreement
reached – orders made

Source

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Catchwords

APPEAL – development application – residential flat buildingcontaining affordable housing – conciliation conference– agreementreached – orders made

Judgment

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

Medium Neutral Citation: Mackenzie Architects International Pty Ltd v Liverpool City Council [2025] NSWLEC 1634

Hearing dates: Conciliation conference on 25 August 2025

Date of orders: 03 September 2025

Decision date: 03 September 2025

Jurisdiction: Class 1

Before: Gray C

Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Application DA-310/2024 for the demolition of existing dwellings on the subject site and the construction of a five (5) storey in-fill affordable residential flat building across two buildings containing a total of 44 units, including 16 affordable rental units with at grade carparking on land at 15 – 21 Pearce Street, Liverpool is approved, subject to the conditions contained in Annexure A.

Catchwords: APPEAL – development application – residential flat building containing affordable housing – conciliation conference – agreement reached – orders made

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 29, 37, 38 Liverpool Local Environmental Plan 2008, cl 7.31 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9 State Environmental Planning Policy (Housing) 2021, Ch 4, ss 16, 17, 19, 20, 147 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.120

COMMISSIONER: This appeal concerns a development application for the demolition of existing dwellings and the construction of a 5-storey in-fill affordable residential flat building across two buildings containing a total of 44 units, including 16 affordable rental units with at grade carparking on land at 15-21 Pearce Street, Liverpool. The development application was lodged with the respondent on 19 July 2024. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 25 August 2025. I presided over the conciliation conference.
At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The final agreement was filed on 27 August 2025, and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW). The amendments include changes to the ground level car parking area, improvements to access to the ground floor communal open space, and changes to the roof top communal open space to improve privacy and solar access for neighbouring properties. The amended development application also includes updated stormwater management plans, an updated flood study, an arboricultural impact assessment, a preliminary site investigation, a detailed site investigation and a design verification statement.
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 an agreed Jurisdictional Statement, the final version of which was provided by email on 27 August 2025. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
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 could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:
The development is for the purpose of a residential flat building, which is a permissible use in the R4 High Density Residential zone in which the site is located, pursuant to the Liverpool Local Environmental Plan 2008 (LLEP).
The proposed development complies with the development standards in the LLEP concerning height and minimum building street frontage.
The development application includes earthworks for site preparation and levelling. Based on the Geotechnical Investigation Report dated 30 January 2023 (albeit prepared for architectural plans with a basement, which is no longer sought), I have considered the matters set out in cl 7.31(3) of the LLEP.
Whilst the LLEP prescribes a maximum floor space ratio (FSR) development standard, the proposed development proposes in-fill affordable housing to which Div 1 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies, such that it benefits from additional FSR under s 16(2) of the SEPP Housing. The proposed development has a FSR of 1.29:1, which is within the maximum FSR permitted by ss 17(2) and 16 of the SEPP Housing, calculated to be 1.3:1.
Section 20(3) of the SEPP Housing requires consideration of “whether the design of the residential development is compatible with” either the desirable elements of the local area, or the desired future character. Based on the Design Verification Statement dated 25 August 2025 and the Statement of Environmental Effects dated 29 May 2024, I consider that the design of the development is compatible with the desired future character of the area.
The development application is accompanied by a statement of a qualified designer that verifies the design of the development, the Design Verification Statement dated 25 August 2025, as required by s 29 of the EPA Regulation 2021.
Chapter 4 of the SEPP Housing applies to the proposed development. Based on the Design Verification Statement dated 25 August 2025, I have considered the matters required to be considered by s 147(1) of the SEPP Housing.
Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 2 July 2025. Based on the BASIX certificate, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.
Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated. In addition, a Preliminary Site Investigation dated March 2025 and a Detailed Site Investigation dated June 2025, were prepared in relation to land in Paciullo Park that will be used for stormwater drainage, and conclude that the land is suitable for the development.
The site is in a block that is adjacent to the Hume Highway, a classified road, and s 2.120 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) applies. Consistent with the requirements of s 2.120(3), the proposed development is designed to prevent or reduce the impacts associated with road traffic noise and will be carried out in accordance with the recommendations in the Noise Impact Assessment dated 3 May 2024 that will ensure a suitable degree of amenity for residents and other occupants of the proposed development, including compliance with the LAeq levels in s 2.120(3).
The site falls within the Georges River Catchment, such that Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the development application. Based on the stormwater management plans, the Stormwater Management Report dated 2 December 2024 and the Flood Study dated 3 December 2024, I am satisfied of the matters in ss 6.6(2), 6.7(2) and 6.8(2). Further, the development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2).
The development application was notified from 22 July 2024 to 7 August 2024, and again from 30 August 2024 to 27 September 2024. A total of 7 written submissions were received in response to the two periods of notification. I have considered the issues raised in those submissions, which concern privacy, overlooking, solar access and increased traffic.
I note also that s 19 of the SEPP Housing sets out a number of grounds on which consent cannot be refused if certain criteria are met. The proposed development meets the criteria for site area, landscaped area, deep soil zone, solar access, parking spaces, and accommodation size. Accordingly, consent cannot be refused on any of those grounds.
Having reached the state of satisfaction that the decision is one that the Court could have made 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)).
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.
The Court notes:
The Liverpool City Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the applicant amending development application No. DA-310/2024 in accordance with the following documents :

| Plan No. | Plan Title | Drawn by | Dated | | A0001 (Revision G) | Cover Page | Mackenzie Architects International | 26/06/2025 | | A0004 (Revision G) | Site Plan | Mackenzie Architects International | 26/06/2025 | | A0005 (Revision E) | Demolition Plan | Mackenzie Architects International | 19/05/2025 | | A1001 (Revision F) | Ground Floor Plan | Mackenzie Architects International | 17/06/2025 | | A1002 (Revision E) | First Floor Plan | Mackenzie Architects International | 19/05/2025 | | A1003 (Revision E) | Second Floor Plan | Mackenzie Architects International | 19/05/2025 | | A1004 (Revision E) | Third Floor Plan | Mackenzie Architects International | 19/05/2025 | | A1005 (Revision F) | Fourth Floor Plan | Mackenzie Architects International | 17/06/2025 | | A1006 (Revision E) | Roof Plan | Mackenzie Architects International | 19/05/2025 | | A2001 (Revision F) | North & East Elevations | Mackenzie Architects International | 17/06/2025 | | A2002 (Revision F) | South & West Elevations | Mackenzie Architects International | 17/06/2025 | | A2003 (Revision E) | East & West Int. Facades Elevations | Mackenzie Architects International | 19/05/2025 | | A2004 (Revision E) | Streetscape Elevation | Mackenzie Architects International | 19/05/2025 | | A2101 (Revision E) | Sections | Mackenzie Architects International | 19/05/2025 | | A3001 (Revision F) | GFA Calculations | Mackenzie Architects International | 17/06/2025 | | A3002 (Revision G) | Landscape Calculations | Mackenzie Architects International | 26/06/2025 | | A3003 (Revision G) | Communal Open Space | Mackenzie Architects International | 26/06/2025 | | A3004 (Revision B) | Deep Soil Calculations | Mackenzie Architects International | 26/02/2025 | | A3005 (Revision G) | Building Height Plane | Mackenzie Architects International | 26/06/2025 | | A3006 (Revision G) | Cross-ventilation | Mackenzie Architects International | 26/06/2025 | | A3008 (Revision G) | Sample Board | Mackenzie Architects International | 26/06/2025 | | A3009 (Revision G) | Public Domain Plan | Mackenzie Architects International | 26/06/2025 | | A4001 (Revision G) | Solar Access 9am-12pm | Mackenzie Architects International | 26/06/2025 | | A4002 (Revision G) | Solar Access 1pm-3pm | Mackenzie Architects International | 26/06/2025 | | A4003 (Revision G) | Solar Access Analysis | Mackenzie Architects International | 26/06/2025 | | A4004 (Revision G) | Solar Impact Future Development | Mackenzie Architects International | 26/06/2025 | | A4005 (Revision G) | Solar Access U306 | Mackenzie Architects International | 26/06/2025 | | A4101 (Revision G) | Shadow Diagram 9am | Mackenzie Architects International | 26/06/2025 | | A4102 (Revision G) | Shadow Diagram 10am | Mackenzie Architects International | 26/06/2025 | | A4103 (Revision G) | Shadow Diagram 11am | Mackenzie Architects International | 26/06/2025 | | A4104 (Revision G) | Shadow Diagram 12pm | Mackenzie Architects International | 26/06/2025 | | A4105 (Revision G) | Shadow Diagram 1pm | Mackenzie Architects International | 26/06/2025 | | A4106 (Revision G) | Shadow Diagram 2pm | Mackenzie Architects International | 26/06/2025 | | A4107 (Revision G) | Shadow Diagram 3pm | Mackenzie Architects International | 26/06/2025 |