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[2026] NSWLEC 1078
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-24
Kullen 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: Masters Land Purchase Pty Ltd v Liverpool City Council [2026] NSWLEC 1078
Hearing dates: Conciliation conference held on 20 August 2025
Date of orders: 24 February 2026
Decision date: 24 February 2026
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders:
(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the amount agreed or assessed.
(2) The appeal is upheld.
(3) Development Application No DA-105/2025, as amended, for the construction of a multi-dwelling housing development comprising of thirty-four dwellings on land at 225 Fifth Avenue, Austral, NSW, 2179, legally known as Lot 1115 DP 2475, is determined by the grant of development consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL — multi-dwelling housing development — conciliation conference — agreement between the parties —— orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 8.7, 8.11, 8.15 Land and Environment Court Act 1979 (NSW), s 34 Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 38, Sch 7 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1, Sch 1 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 State Environmental Planning Policy (Precincts – Western Parkland City) 2021 s 3.26, Appendix 4 ss 2.1, 2.2, 2.3, 4.1AB, 4.1B, 4.3, 4.4, 5.9, 5.10, 6.1 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Texts Cited: Liverpool Community Engagement Strategy and Community Participation Plan 2022
Liverpool Growth Centre Precincts Development Control Plan 2021
Category: Principal judgment
Parties: Masters Land Purchase Pty Ltd (Applicant)
Liverpool City Council (Respondent)
Representation: Counsel:
V Conomos (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Liverpool City Council (Respondent)
File Number(s): 2025/154528
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal by the Respondent of development application No DA-105/2025 (the DA) for the following development on land legally described as Lot 1115 DP 2475, also known as 225 Fifth Avenue, Austral, NSW, 2179 (the site):
Construction of a multi-dwelling development consisting of 37 three storey townhouses with associated at grade parking;
The proposed development is configured in an arrangement whereby the dwellings are grouped between 8 buildings divided by an internal driveway inclusive of waste collection areas and visitor parking;
The proposal is for 10 two bedroom units and 27 three bedroom units; and
The proposed development will be located on proposed Lot X created under the parent subdivision application DA-508/2022
The DA was lodged with Liverpool City Council (the Respondent) on 10 March 2025.
On 22 April 2025, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under ss 8.7 and 8.11 of the EPA Act against the deemed refusal of the DA by the Respondent.
The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 22 May 2025.
On 20 August 2025, the Court arranged a s 34 conciliation conference on site pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). No submissions had been received in response to the notification of the DA and thus there were no submitters to attend the on-site view.
After discussions between the parties, the s 34 conciliation conference was adjourned a number of times, to enable the parties to explore reaching a s 34 agreement.
On 3 December 2025, the parties confirmed that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, based on amended plans (the amended DA). This decision involved the Court upholding the appeal and granting development consent to the further amended DA subject to conditions.
The parties advise that the amended DA includes a number of changes to the proposed development including:
Amended architectural plans showing a reduced number of dwelling units on the site of 34; and
Agreed arrangements for waste management.
A signed s 34 agreement with Annexure A and the further amended DA as agreed between the parties were filed with the Court on 3 December 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites provided by the parties.
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. 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 that were originally in dispute between the parties.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.
State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (the Precincts SEPP) is the relevant environmental planning instrument that applies to the site. The relevant planning controls for the site are contained in Chapter 3 – Sydney Region Growth centres and Appendix 4 – Liverpool Growth Centres Precinct Plan (Precinct Plan) of the Precincts SEPP.
The site is zoned R3 – Medium Density Residential pursuant to the provisions of the Precincts SEPP. Under the R3 zoning a range of uses including multi-dwelling housing is permissible upon the land.
The site is identified on the Land Application Map in the Precincts SEPP as within the Austral Precinct and is subject to the controls in the Precinct Plan.
Sections 2.1 and 2.2 of the Precinct Plan refer to the zoning of land to which the Precinct Plan applies. The site is identified on the Land Zoning Map as being zoned R3 Medium Density Residential. Under the R3 zoning a range of uses including multi-dwelling housing is permissible upon the land.
Section 2.3(2) of the Precinct Plan (Zone objectives and Land Use Table) requires the consent authority to have regard to the zone objectives, being for the R3 Medium Density Residential Zone:
1 Objectives of zone
• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a medium density residential environment.
The parties agree that the amended DA can be approved having regard to the objectives of the R3 zone.
I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.
Section 3.26 of the Precincts SEPP relates to development on flood prone and major creeks land. The parties advise that:
The site is identified as comprising of flood prone land;
In response to the additional heads of consideration contained in s 3.26 of the Precincts SEPP a Flood Impact Assessment has been Prepared by JCO Consultants, dated 12 September 2024, which concludes that the proposed development will not have any significant or adverse impacts on existing flood behaviour; and
The Statement of Environmental Effects prepared by Minto Planning Services and dated 25 February 2025 reaches a similar conclusion.
The parties submit the following in relation to subdivision provisions contained in the Precinct Plan as they apply to the proposed subdivision of the site:
Section 4.1AB (Minimum lot sizes for residential development in Zone R2 Low Density Residential and Zone R3 Medium Density Residential) applies as the site is zoned R3 Medium Density Residential; and
Pursuant to s 4.1AB(7)(b) the minimum lot size for multi-dwelling housing is 375m2 if the dwelling density per hectare in relation to the land is 25. The parties advise that the site has an area of 6,314.96m2 and the proposed development has a dwelling density per hectare of 25. Therefore, the parties consider that the development lot size meets the minimum lot size under s 4.1AB.
Section 4.1B (Residential density) of the Precinct Plan refers to residential density to establish the minimum density requirements for residential development, to ensure that the residential development makes efficient use of land and infrastructure and to ensure that the scale of the development is compatible with the character of the precinct and adjoining land. As such, the density of any residential development is not to be less than the density established by the Residential Density Map in the Precincts SEPP which is 25 dwellings per hectare for the site.
The parties advise that:
The site is identified as having residential dwelling density of 25 and must support a minimum of 25 dwellings per hectare (refer to [26] above); and
The amended proposal seeks approval for a multi-dwelling housing comprised of 34 dwellings upon a previously approved lot of 6,314.96m2 in area, which is considered to be consistent with s 4.1B of the Precinct Plan.
Section 4.3 of the Precinct Plan relates to height of buildings. The parties advise that:
The site is located within Building Height Area “M” and is therefore subject to a maximum building height control of 12m; and
The proposal has a maximum building height below 12m which complies with this requirement.
Section 4.4 of the Precinct Plan relates to floor space ratio (FSR). The parties advise that there is no FSR control which is applicable to the site under the Precinct Plan.
Section 5.9 of the Precinct Plan aims to preserve the amenity of the area through the preservation of trees and other vegetation. The parties advise that the proposed development does not impact upon any trees or vegetation.
Section 5.10 of the Precinct Plan relates to heritage conservation. The parties advise that the site is not contained within a heritage conservation area and does not adjoin any identified heritage item.
Section 6.1 of the Precinct Plan relates to the availability of public utility infrastructure. Consent cannot be granted to the proposed development unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available, and adequate arrangements have been made to make that infrastructure available when required.
The parties advise that the subject site has access to the relevant public utility infrastructure that is essential for the proposed development. The supply of water and electricity and management of sewage is available from the road reserve. Disposal of stormwater is provided via the existing stormwater pit located adjacent to the northwestern boundary.
The parties advise that the State Environmental Planning Policy (Sustainable Buildings) 2022 (the Sustainable Buildings SEPP) applies to the DA.
The development requires a BASIX certificate as it is defined as a BASIX building that contains at least one dwelling and does not include a hotel, motel, boarding house, hostel or co-living housing as defined in Environmental and Planning Assessment Regulation 2021 (NSW) (EPA Regulation) s 27 and sch 7 Dictionary.
An updated BASIX certificate has been prepared to reflect the amended plans. BASIX Certificate No 1765361M_03 prepared by Building Sustainability Assessments dated 13 November 2025 has been submitted with the amended plans.
The proposed development satisfies the requirements of the BASIX Certificate and the applicable standards in Sch 1 of the Sustainable Buildings SEPP in terms of water conservation, energy efficiency and thermal comfort.
A letter prepared by Building Sustainability Consultants, dated 19 November 2025 deals with the fact that the embodied emissions have been taken into account by the Development Application in satisfaction of s 2.1(5) of the Sustainable Buildings SEPP.
The parties advise that in relation to Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) the site is located within the Hawkesbury-Nepean Catchment and therefore is subject to the requirements of Ch 6 of the Biodiversity SEPP.
The parties submit that:
Based upon compliance with the plans and recommendations of the accompanying reports that the proposed development will not result in any unreasonable impacts upon the Hawkesbury-Nepean Catchment; and
A letter prepared by Minto Planning Services, dated 13 November 2025 and a letter prepared by JCO Consultants dated, 13 November 2025 supports satisfaction of the proposed development with the Biodiversity SEPP.
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out.
The parties advise that:
They consider that the issue of contamination has been previously considered as part of the development approval for the recent subdivision of the site;
The DA is accompanied by a Site Validation Report dated 15 June 2020, prepared by Sydney Environmental Group. That report concludes that the site will be suitable for the proposed use; and
The suitability of the site pursuant to the Resilience SEPP is also confirmed in the Statement of Environmental Effects submitted in support of the DA.
The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.
Having considered the advice of the parties provided above at [13]-[44], I am satisfied that:
The Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b)-(e) of the EPA Act;
The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and
Approval of the proposed development is in the public interest.
Further, 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.
The Court notes:
That Liverpool City Council, as the consent authority, pursuant to s 38(1) of the EPA Regulation, has approved the application for an amendment to Development Application DA-105/2025 made on 28 November 2025 to rely on the documents specified below:
(a) Architectural plans
| Plan | Drawn by | Dated | | DA-06, Survey, Issue F | SWA Group | 23.09.2025 | | DA-07/F, Site Context, Issue F | SWA Group | 23.09.2025 | | DA-08/G, Development Statistics, Issue G | SWA Group | 13.11.2025 | | DA-09/G, Site Plan, Issue G | SWA Group | 13.11.2025 | | DA-010/G, Flood Level, Issue G | SWA Group | 13.11.2025 | | DA-11/G, Ground Level 1:500, Issue G | SWA Group | 13.11.2025 | | DA-12/G, Level 1 1:500, Issue G | SWA Group | 13.11.2025 | | DA-13/G, Level 2 1:500, Issue G | SWA Group | 13.11.2025 | | DA-14/G, Building 1 – Ground, Issue G | SWA Group | 13.11.2025 | | DA-15/G, Building 1 – Level 1, Issue G | SWA Group | 13.11.2025 | | DA-16/G, Building 1 – Level 2, Issue G | SWA Group | 13.11.2025 | | DA-17/G, Building 2 – Ground, Issue G | SWA Group | 13.11.2025 | | DA-18/G, Building 2 – Level 1, Issue G | SWA Group | 13.11.2025 | | DA-19/G, Building 2 – Level 2, Issue G | SWA Group | 13.11.2025 | | DA-110/G, Building 3 – Ground, Issue G | SWA Group | 13.11.2025 | | DA-111/G, Building 3 – Level 1, Issue G | SWA Group | 13.11.2025 | | DA-112/G, Building 3 – Level 2, Issue G | SWA Group | 13.11.2025 | | DA-113/G, Building 4 – Ground, Issue G | SWA Group | 13.11.2025 | | DA-114/G, Building 4 – Level 1, Issue G | SWA Group | 13.11.2025 | | DA-115/G, Building 4 – Level 2, Issue G | SWA Group | 13.11.2025 | | DA-116/G, Building 5 – Ground Issue G | SWA Group | 13.11.2025 | | DA-117/G, Building 5 – Level 1, Issue G | SWA Group | 13.11.2025 | | DA-118/G, Building 5 – Level 2, Issue G | SWA Group | 13.11.2025 | | DA-119/G, Building 6 – Ground, Issue G | SWA Group | 13.11.2025 | | DA-120/G, Building 6 – Level 1, Issue G | SWA Group | 13.11.2025 | | DA-121/G, Building 6 – Level 2, Issue G | SWA Group | 13.11.2025 | | DA-122/G, Building 7 – Ground, Issue G | SWA Group | 13.11.2025 | | DA-123/G, Building 7 – Level 1, Issue G | SWA Group | 13.11.2025 | | DA-124/G, Building 7 – Level 2, Issue G | SWA Group | 13.11.2025 | | DA-125/G, Building 8 – Ground, Issue G | SWA Group | 13.11.2025 | | DA-126/G, Building 8 – Level 1, Issue G | SWA Group | 13.11.2025 | | DA-127/G, Building 8 – Level 2, Issue G | SWA Group | 13.11.2025 | | DA-21/G, Overall Elevations 1:500, Issue G | SWA Group | 13.11.2025 | | DA-22/G, Building 1 Elevation 1:200, Issue G | SWA Group | 13.11.2025 | | DA-23/G, Building 2 Elevations 1:200, Issue G | SWA Group | 13.11.2025 | | DA-24/G, Building 3 Elevation 1:200, Issue G | SWA Group | 13.11.2025 | | DA-25/G, Building 4 Elevation 1:200, Issue G | SWA Group | 13.11.2025 | | DA-26/G, Building 5 Elevation 1:200, Issue G | SWA Group | 13.11.2025 | | DA-27/G, Building 6 Elevation 1:200, Issue G | SWA Group | 13.11.2025 | | DA-28/G, Building 7 Elevation 1:200, Issue G | SWA Group | 13.11.2025 | | DA-29/G, Building 8 Elevation 1:200, Issue G | SWA Group | 13.11.2025 | | DA-210/G, Schedule of Materials and Finishes, Issue G | SWA Group | 13.11.2025 | | DA-31/G, Overall Sections 1:500, Issue G | SWA Group | 13.11.2025 | | DA-32/G, Section A & B 1:200, Issue G | SWA Group | 13.11.2025 | | DA-33/G, Section C & D 1:200, Issue G | SWA Group | 13.11.2025 | | DA-34/G, Section 1 1:200, Issue G | SWA Group | 13.11.2025 | | DA-35/G, Section 2 1:200, Issue G | SWA Group | 13.11.2025 | | DA-36/G, Section A (Western Side) 1:50, Issue G | SWA Group | 13.11.2025 | | DA-37/G, Section A (Eastern Side) 1:50, Issue G | SWA Group | 13.11.2025 | | DA-41/G, Shadow Diagram 1, Issue G | SWA Group | 13.11.2025 | | DA-42/G, Shadow Diagram 2, Issue G | SWA Group | 13.11.2025 | | DA-43/G, Shadow Diagram 3, Issue G | SWA Group | 13.11.2025 | | DA-44/G, Sun Eye P1, Issue G | SWA Group | 13.11.2025 | | DA-45/G, Sun Eye P2, Issue G | SWA Group | 13.11.2025 | | DA-46/G, Sun Eye P3, Issue G | SWA Group | 13.11.2025 | | DA-51/G, Site Coverage, Issue G | SWA Group | 13.11.2025 | | DA-52/G, Landscape Area, Issue G | SWA Group | 13.11.2025 | | DA-61/G, Adaptable Unit Type 1 (P1), Issue G | SWA Group | 13.11.2025 | | DA-62/G, Adaptable Unit Type 1 (P2), Issue G | SWA Group | 13.11.2025 | | DA-63/G, Adaptable Unit Type 2, Issue G | SWA Group | 13.11.2025 | | DA-81/G, Fence Details, Issue G | SWA Group | 13.11.2025 | | DA-91/G, Notification Plan, Issue G | SWA Group | 13.11.2025 |
(b) BASIX Certificate
| BASIX Certificate No. 1765361M_03 | Dated | | Building Sustainability Assessments | 13.11.2025 |
(c) Landscape Plans
| Plan | Drawn by | Dated | | Sheet 01, Hardscape Plan, Issue B | Conzept Landscape Architects | 08.09.2025 | | Sheet 02, Landscape Plan – 1, Issue B | Conzept Landscape Architects | 08.09.2025 | | Sheet 03, Landscape Plan – 2, Issue B | Conzept Landscape Architects | 08.09.2025 | | Sheet 04, Landscape Plan – 3, Issue B | Conzept Landscape Architects | 08.09.2025 | | Sheet 05, Landscape Plan – L1, Issue B | Conzept Landscape Architects | 08.09.2025 | | Sheet 06, Landscape Plan – L1, Issue B | Conzept Landscape Architects | 08.09.2025 | | Sheet 07, Details & Specification, Issue B | Conzept Landscape Architects | 08.09.2025 |
(d) Other Documents
| Document | Prepared by | Dated | | Roof Garden Landscape Maintenance | Conzept Landscape Architects | 08.09.2025 | | Town Planning Letter | Minto Planning Services | 08.09.2025 | | Swept Paths for Waste Truck | PDC Consultants | 04.09.2025 | | Letter from JCO Consultants | JCO Consultants | 13.11.2025 | | Letter from Minto Planning Services | Minto Planning Services | 13.11.2025 | | Embodied Emissions Letter | Building Sustainability Assessments | 19.11.2025 |
The Court orders:
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the amount agreed or assessed.
The appeal is upheld.
Development Application No DA-105/2025, as amended, for the construction of a multi-dwelling housing development comprising of 34 dwellings on land at 225 Fifth Avenue, Austral, NSW, 2179, legally known as Lot 1115 DP 2475, is determined by the grant of development consent subject to the conditions at Annexure A.
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Annexure A.598 KB.pdf
Masters Land Purchase Pty Ltd
Liverpool City Council [2026] NSWLEC 1078