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[2026] NSWLEC 1041
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-04
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: Ninth Avenue Pty Ltd v Liverpool City Council [2026] NSWLEC 1041
Hearing dates: Conciliation conference held on 1 October 2025
Date of orders: 04 February 2026
Decision date: 04 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-39/2025, as amended, for the demolition of existing structures, site remediation, tree removal, Torrens Title subdivision of the existing allotment into 42 residential lots with construction of roads and associated civil works that includes construction and decommissioning of temporary on-site detention basins over Stages 1 and 2 at 5 Ninth Avenue, Austral, NSW, 2179, is determined by the grant of development consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL — conciliation conference — agreement between the parties —— orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Pt 4, ss 7, 4.15, 4.16, 4.17, 4.46, 8.7, 8.15, Sch 1, Div 2, cl 7
Land and Environment Court Act 1979 (NSW),
s 34
Local Land Services Act 2013 (NSW), Pt 5B, s 60O
Rural Fires Act 1997 (NSW), s 100B
Water Management Act 2000 (NSW), s 91
Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 2.3, 2.6, 2.7, 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Pts 3.1, 3.5, ss 3.5, 3.26, Appendix 4, ss 2.1, 2.2, 2.3, 2.6, 2.6A, 4.1, 4.1AA, 4.1AB, 4.1AC, 4.1AD, 4.1AE, 4.1AF, 4.1B, 5.9, 5.10, 6.1, 6.2, 6.3
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
NSW Rural Fire Service, Guide for Bush Fire Prone Land Mapping, November 2015
NSW Rural Fire Service, Planning for Bush Fire Protection, November 2019
Category: Principal judgment
Parties: Ninth Avenue Pty Ltd (Applicant)
Liverpool City Council (Respondent)
Representation: Counsel:
M Sonter (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)
Solicitors:
Mills Oakley Lawyers (Applicant)
Liverpool City Council (Respondent)
File Number(s): 2025/171545
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application No DA-39/2025 (the DA) for the demolition of existing structures, site remediation, subdivision of existing allotment into a Torrens title subdivision of 42 residential lots with construction of roads and associated civil works that includes construction and decommissioning of temporary On-Site Detention Basins over two stages on land legally described as Lot 874, DP 2475, also known as 5 Ninth Avenue, Austral, NSW, 2179 (the site).
The proposed staging of the development is as follows:
Stage 1: Demolition of existing structures, tree removal, site remediation, subdivision of existing allotment into a Torrens title subdivision of 42 residential lots with construction of roads and associated civil works. This stage includes construction of temporary On-Site Detention Basins (OSD 1 over Lot 16 and OSD 2 over Lots 23 and 24) and new public roads; and
Stage 2: Decommissioning of the On-Site Detention Basins (OSD 1 over Lot 16 and OSD 2 over Lots 23 and 24) and rehabilitation and development of that land for residential purposes.
The DA was lodged with Liverpool City Council (the Respondent) on 10 February 2025.
On 5 May 2025, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 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 29 May 2025.
On 1 October 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.
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 20 November 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 building envelope plans that indicate:
(a) easement details for burdened lots; (b) required 4.5m front setbacks; (c) annotations of maximum site coverage being 60% for the ground floor and 40% for the first floor; (d) annotations of the minimum 25% landscaped area; (e) proposed size of garages; (f) driveway and garage locations for lots 16 and 18; (g) separate building envelope and floor plans for lots 19 and 6 due to the irregularity of the lots; and (h) acceptable solar diagrams.
(a) a public domain plan indicating street trees and vehicular crossovers; (b) stormwater drainage system with capacity to accommodate future upstream development flows; and (c) proposed raingardens subject to conditions.
A signed s 34 agreement with Annexure A and the further amended DA as agreed between the parties were filed with the Court on 20 November 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.
The parties advise that:
The site is owned by two joint tenants, both of whom have provided owner’s consent;
The amended DA proposes a connection to a half road that is not currently a public road and is owned by the registered proprietors of Lot 73 in DP 1248900 (Lot 73);
The amended DA now contains owner’s consent from the registered proprietors of the following land:
(a) Lot 73 which provides consent for the following:
(i) construction of stormwater drainage pipes within the future road reserve areas and associated works; (ii) easement to drain stormwater and public access in favour of Liverpool City Council; and (iii) construction of the remaining road width and drainage of stormwater; and
(b) Lot 915 DP2475 (Lot 915) which provides consent for a minor increase in overland stormwater flow depth which may occur at the northern boundary of Lot 915 until the land is developed.
Pursuant to s 100B(3) of the Rural Fires Act, a person must obtain a bush fire safety authority before developing bush fire prone land including subdivision that could lawfully be used for residential purposes. The parties advise that the site is mapped as Bushfire Prone Land, and the amended DA seeks consent for subdivision of bush fire prone land for a residential purpose (s 100B(1)(a) of the Rural Fires Act refers).
The DA included a Bushfire Assessment and Recommendations Report prepared by Sydney Bushfire Consultants dated 6 January 2025 (the Bushfire Report) which was referred to and considered by the NSW Rural Fire Services (RFS). The Bushfire Report recommends bushfire safety compliance and mitigation measures in accordance with the Planning for Bush Fire Protection 2019 (PBP) by implementing asset protection zones, access provisions, services and construction standards. Based on these recommendations, the RFS issued a relevant Bush Fire Authority and general terms of approval (RFS GTAs) on 20 March 2025.
The parties advise that in accordance with s 4.47 of the EPA Act, the agreed conditions of consent include the requirement to comply with the recommendations in the Bushfire Report.
The parties submit that the Court can be satisfied that the proposed development conforms with the performance criteria in the PBP.
Pursuant to s 91(2) of the Water Management Act, “[a] controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, or under waterfront land.”
The parties advise that the DA was referred to the NSW Department of Planning and Environment (the Department). The Department confirmed on 9 April 2025 that the site is not located on waterfront land as defined by the Water Management Act and therefore, does not require any controlled activity approval.
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 mapped within a growth centre pursuant to s 3.5 of the Precincts SEPP. Section 3.26 of the Precincts SEPP (Development on flood prone and major creeks land—additional heads of consideration) applies to development requiring consent that is carried out on flood prone and major creeks land and requires the consent authority to consider the matters listed at s 3.26(2)(a) to (h).
The parties advise that the Applicant has provided the following documents as required by s 3.26 of the Precincts SEPP:
Overland Flow Study prepared by C&M Consulting Engineers dated October 2025;
Amended Civil Engineering Plans prepared by C&M Consulting Engineers dated 29 August 2025;
Amended Subdivision Plan prepared by Joseph P Frasca dated 2025; and
Plan of Detail and Levels prepared by United Surveyors dated 28 November 2024.
The parties submit that:
The Overland Flow Study provides comprehensive assessment of the pre and post development 1% annual exceedance probability (AEP) overland flow in the vicinity of the site. The study confirms the results indicate that the overland flow has generally been redirected to be contained within Driver Street and Browns Road;
The overland flow has also been contained within the temporary OSD basins as intended during rare storm events; and
Accordingly, the Court can be satisfied the proposed development complies with s 3.26 of the Precincts SEPP.
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 part R2 Low Density Residential and part SP2 Infrastructure. The relevant zones permit the following:
R2 Low Density Residential Zone permits ‘Dwelling houses’ and ‘Roads’; and
SP2 Infrastructure Zone permits ‘Roads’ without consent and the purpose shown on the Land Zoning Map, including any development that is ordinarily incidental or ancillary to development for that purpose is permitted with consent.
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 R2 Low Density Residential Zone:
1 Objectives of zone
• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.
• To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.
1 Objectives of zone
• To provide for infrastructure and related uses.
• To prevent development that is not compatible with or that may detract from the provision of infrastructure.
The parties submit that the amended DA can be approved having regard to the objectives of the R2 and SP2 zones.
I am satisfied that the proposed development is consistent with the objectives for development within the zones in which the development is proposed to be carried out.
Pursuant to s 2.6 of the Precinct Plan, subdivision of the existing lot is permissible with consent. The proposed development seeks consent for the Torrens Title subdivision of the existing allotment into 42 residential lots.
Pursuant to s 2.6A of the Precinct Plan, demolition is permitted with consent. The site currently contains a residential dwelling and other ancillary structures that are to be removed and demolished as part of the proposed development.
The parties advise the following in relation to subdivision provisions contained in the Precinct Plan as they apply to the proposed subdivision of the site:
Section 4.1 (Minimum subdivision lot size) applies to subdivision of any land shown on the ‘Lot Size Map’ that requires development consent. The site is not identified on the Lot Size Map, accordingly this section does not apply to the proposed development. Additionally, s 4.1AB operates to exclude this clause from applying to land zoned R2;
Section 4.1AA (Subdivision resulting in lots between 225-300m2), applies as the site is zoned part R2 Low Density Residential. Section 4.1AA(2) provides consent can be “granted to the subdivision of land … resulting in the creation of a lot that has an area of less than 300m2 (but not less than 225m2) if the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot”;
The amended DA proposes subdivision of 15 lots with an area between 250-300m2, being lots 1-5, 10, 16-18, 25-28 and 38-39. The amended DA contains building envelope plans that adequately demonstrate a dwelling house can be sufficiently built on those lots. The balance of the lots proposed to be subdivided are more than 300m2 in area. Therefore, the Court can be satisfied that the proposed development complies with s 4.1AA;
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 R2 Low Density Residential under s 4.1AB(2)(a). The site is shown on the Residential Density Map in the Precincts SEPP as having a density of 15 dwellings per hectare, however, the amended DA does not propose the construction of a dwelling house, dual occupancy, semi-detached dwelling, attached dwelling or multi dwelling on the site. Accordingly, s 4.1B (Residential density) does not apply to the proposed development;
Section 4.1AC (Minimum lot sizes for secondary dwellings in Zone R2 Low Density Residential and Zone R3 Medium Density Residential) applies to land zoned R2 Low Density Residential and provides that the minimum lot size for a secondary dwelling on land identified on the Residential Density Map in the Precincts SEPP. The amended DA does not seek consent for a secondary dwelling on the site;
Section 4.1AD (Exceptions to minimum lot sizes for dwelling houses) applies to a lot in the R2 Low Density Residential zone as provided in ss 4.1AD(1)(a) and (b). While the site is zoned R2, the amended DA does not seek consent for the erection of a dwelling house on the site;
Section 4.1AE (Exceptions to minimum to lot sizes for dwelling houses on other lots in Zone R2 Low Density Residential) applies to the erection of a dwelling on a lot in the R2 Low Density Residential Zone that has an area less than 250m2 (but not less than 225m2 and if the dwelling density shown on the Residential Density Map in relation to the land is 15). The amended DA does not seek consent for a lot less than 250m2 nor does it propose an erection of a dwelling house on any lot. Accordingly, s 4.1AE does not apply to the proposed development;
Section 4.1AF (Exceptions to minimum lot sizes for dwelling houses on small lots) applies to a lot in Zone R2 Low Density Residential that has an area less than 225m2. As none of the proposed lots has an area of less than 225m2, s 4.1AF does not apply to the proposed development; and
Section 4.1B (Residential density) 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 which is 15 dwellings per hectare for the site. The site has a total area of 18,934.9m2. The proposed development seeks consent for 42 lots, being 22.19 dwellings per hectare. Accordingly, the Court can be satisfied the proposed development complies with s 4.1B.
Section 5.9 of the Precinct Plan aims to preserve the amenity of the area through the preservation of trees and other vegetation. The site adjoins the Western Sydney Parklands conservation area which is identified as ‘Biodiversity Values’ on the Biodiversity Values Map. The amended DA proposes the removal of approximately 32 trees on the site. All trees located in the Western Sydney Parklands are proposed to be retained. Additionally, an Arboricultural Impact Appraisal and Method Statement has been prepared by Naturally Trees which requires tree sensitive construction measures must be implemented if works are to proceed within the tree protection zones.
The parties have included agreed to conditions to ensure there are minimal and acceptable impacts to trees on the site. Accordingly, the parties submit that the Court can be satisfied the proposed development complies with s 5.9 of the Precinct Plan.
Section 5.10 of the Precinct Plan relates to Heritage conservation. The parties advise that the site is not identified as having any heritage significance or contain any heritage item and accordingly, s 5.10 of the Precincts SEPP does not apply to the proposed development.
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 adequate arrangements for public utility infrastructure have been made noting the recent development of adjoining subdivisions to the immediate south, west and north and recent subdivision approval at 10 Ninth Avenue to the northeast of the site.
Accordingly, the parties submit that the Court can be satisfied the proposed development complies with s 6.1 of the Precincts SEPP.
Section 6.2 of the Precinct Plan (Development controls—native vegetation retention areas) aims to prevent the clearing of certain native vegetation and applies to land within a native vegetation retention area as shown on the Native Vegetation Protection Map. The parties advise that the site is not mapped within the Native Vegetation Protection Map and accordingly, s 6.2 of the Precinct Plan does not apply to the proposed development.
Section 6.3 of the Precinct Plan (Development controls—existing native vegetation) aims to manage existing native vegetation in accordance with the relevant biodiversity measures under Part 7 of Schedule 7 of the Threatened Species Conservation Act 199**5 (NSW). This section applies to land within an existing native vegetation area as shown on the Native Vegetation Protection Map. The parties have advised (at [44]) that the site is not mapped within the Native Vegetation Protection Map. Accordingly, s 6.3 of the Precinct Plan does not apply to the proposed development.
Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) operates to protect the biodiversity values of trees and other vegetation in non-rural areas of NSW and to preserve the amenity of non-rural areas of NSW through the preservation of trees and other vegetation. Pursuant to s 2.3(1)(a) of the Biodiversity SEPP, Chapter 2 applies to the site as it is located in the Liverpool local government area.
Pursuant to s 2.6(1) of the Biodiversity SEPP, vegetation cannot be cleared on land to which Chapter 2 applies without the authority conferred by a permit granted by the Council. However, in accordance with s 2.7(1) of the Biodiversity SEPP, a permit or approval to clear vegetation is not required if it is clearing of a kind that is authorised under s 60O or Pt 5B of the Local Land Services Act 2013 (NSW) (LLS Act).
Section 60O(a)(i) of the LLS Act authorises clearing of vegetation where the clearing is authorised by development consent under Pt 4 of the EPA Act. The amended DA seeks consent for the removal of 32 trees on the site, authorised under s 60O of the LLS Act, and for the replanting of 48 trees that are selected from species endemic to the Cumberland Plain Woodland that are a critically endangered ecological community.
The parties advise that:
A permit or approval to clear vegetation is not required under s 2.6 of the Biodiversity SEPP; and
The Applicant has provided a Demolition/Tree Removal Plan, a Public Domain Plan/Street Tree Planting Plan and an Arboricultural Impact Appraisal and Method Statement in support of the DA.
The parties submit that the Court can be satisfied the proposed removal of trees on the site is consistent with the Biodiversity SEPP having regard to the tree species, integrity, level of significance and replacement planting as proposed in the Public Domain Plan/Street Tree Planting Plan which forms part of the amended DA.
As the site is located within the Hawkesbury-Nepean River Catchment, Chapter 6 of the Biodiversity SEPP, which seeks to manage and promote integrated catchment management policies, applies to the proposed development.
The parties advise that in relation to Ch 6 of the Biodiversity SEPP the Applicant has prepared the following documentation to demonstrate that the proposed development will not result in an adverse impact on the Hawkesbury Nepean Catchment:
Statement of Environmental Effects prepared by Miletic-Mieler dated January 2025;
Overland Flow Study prepared by C&M Consulting Engineers dated October 2025**;**
Stormwater Management Plan prepared by C&M Consulting Engineers dated December 2024;
Planning Statement in response to the Statement of Facts and Contentions prepared by Miletic-Mieler Development Consultants Pty Ltd dated 4 August 2025; and
Amended Civil Engineering Plans prepared by C&M Consulting dated 29 August 2025.
The parties submitted that the consent authority can be satisfied that the matters set out in ss 6.6(2)(a)-(b), 6.7(2)(a)-(e), 6.8(2)(a)-(b), and 6.9(2)(a) of the Biodiversity SEPP have been met, based on the assessment of the material submitted by the Applicant in support of the DA.
In addition, the parties submitted that the consent authority can be satisfied that the development is unlikely to have an adverse environmental impact. Pursuant to s 6.10 of the Biodiversity SEPP it is not required for the consent authority to consult with the Council of each adjacent or downstream local government area.
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 the site has been historically utilised for rural-residential use, and that the DA is supported by:
Stage 1 Preliminary and Stage 2 Detailed Site Investigation prepared by K2 Consulting Group dated 20 December 2024 (DSI) which provides the recommendations to be implemented including preparation of a Remedial Action Plan (RAP);
A RAP prepared by K2 Consulting Group dated 20 December 2024 which provides appropriate remedial strategies and methodologies for remediation of the site to ensure its suitability for the proposed development; and
Statement of Environmental Effects (SEE) prepared by Miletic-Mieler Development Consultants Pty Ltd dated January 2025.
The parties submit that the recommendations of these reports have been appropriately reflected within the conditions of consent; and that pursuant to s 4.6(1)(a) of the Resilience SEPP, the Court can be satisfied that proper consideration has been given as to whether the site is contaminated, and the Court can be satisfied that the site is capable and suitable for the proposed development.
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 [14]-[59], 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-39/2025 made on 20 November 2025 to rely on the documents specified below:
| Amended Civil Engineering Plans | | Plan name | Drawing Ref | Revision | Date | Prepared by | | Cover Sheet, Drawing Index & General Notes | 02967_100 | 04 | 29.08.2025 | C&M Consulting Engineers | | Demolition / Tree Removal Plan | 02967_110 | 04 | 29.08.2025 | C&M Consulting Engineers | | General Arrangement Plan | 02967_201 | 05 | 29.08.2025 | C&M Consulting Engineers | | Bulk-Earthworks Cut / Fill - Plan | 02967_231 | 05 | 30.09.2025 | C&M Consulting Engineers | | Bulk-Earthworks Cut / Fill - Plan | 02967_232 | 05 | 30.09.2025 | C&M Consulting Engineers | | Linemarking & Signposting Plan | 02967_241 | 04 | 29.08.2025 | C&M Consulting Engineers | | Road Longitudinal Sections – Sheet 01 | 02967_301 | 02 | 30.09.2025 | C&M Consulting Engineers | | Road Longitudinal Sections – Sheet 02 | 02967_302 | 02 | 02.07.2025 | C&M Consulting Engineers | | Typical Road Sections | 02967_401 | 04 | 29.07.2025 | C&M Consulting Engineers | | Road Cross-Sections – Browns Road | 02967_402 | 02 | 29.07.2025 | C&M Consulting Engineers | | Stormwater Drainage External Catchment Plan | 02967_601 | 03 | 29.08.2025 | C&M Consulting Engineers | | Stormwater Drainage Internal Catchment Plan – Water Quality | 02967_602 | 04 | 29.08.2025 | C&M Consulting Engineers | | Temporary Stormwater Detention & Bio-Retention Basin 1 Plan & Details | 02967_651 | 02 | 02.07.2025 | C&M Consulting Engineers | | Temporary Stormwater Detention & Bio-Retention Basin 2 Plan & Details | 02967_652 | 01 | 29.01.2025 | C&M Consulting Engineers | | Sediment & Erosion Control Plan | 02967_701 | 04 | 29.08.2025 | C&M Consulting Engineers | | Sediment & Erosion Control Details | 02967_702 | 02 | 30.06.2025 | C&M Consulting Engineers | | Amended Building Envelope Plans | | Plan name | Drawing Ref | Revision | Date | Prepared by | | Building Envelope Plan (Lots 1-5, 16-18 & 25-28) | BEP01 | - | 18.07.2025 | MPS Architects | | Building Envelope Plan (Lots 10, 38 & 39) | BEP02 | - | 18.07.2025 | MPS Architects | | Indicative Shadow Diagrams 9AM | BEP03 | - | 18.07.2025 | MPS Architects | | Indicative Shadow Diagrams 10AM | BEP04 | - | 18.07.2025 | MPS Architects | | Indicative Shadow Diagrams 11AM | BEP05 | - | 18.07.2025 | MPS Architects | | Indicative Shadow Diagrams 12PM | BEP06 | - | 18.07.2025 | MPS Architects | | Indicative Shadow Diagrams 1PM | BEP07 | - | 18.07.2025 | MPS Architects | | Indicative Shadow Diagrams 2PM | BEP08 | - | 18.07.2025 | MPS Architects | | Indicative Shadow Diagrams 3PM | BEP09 | - | 18.07.2025 | MPS Architects | | Shadow Diagrams Compliance | BEP10 | - | 18.07.2025 | MPS Architects | | Indicative Building Envelope Plan (Lots 6 & 19) | BEP11 | - | 18.07.2025 | MPS Architects | | Concept Plan – Lot 6 | BEP12 | - | 18.07.2025 | MPS Architects | | Concept Plan – Lot 19 | BEP13 | - | 18.07.2025 | MPS Architects | | Public Domain Plan | | Plan name | Drawing Ref | Revision | Date | Prepared by | | Public Domain Plan / Street Tree Planting Plan | LA01 | 01 | 29.07.2025 | Camden Landscape Studio | | Amended Subdivision Plan | | Plan name | Drawing Ref | Revision | Date | Prepared by | | Plan of Subdivision of Lot 874 in DP2475 | 7779 | - | 2025 | Joseph P Frasca | | Amended Reports and Certificates | | Report name | Ref | Revision | Date | Prepared by | | Addendum to Statement of Environmental Effects | - | - | 4 August 2025 | Miletic-Mieler Development Consultant Pty Ltd | | Overland Flow Study | R02967-FL | C | October 2025 | C&M Consulting Engineers | | Owners Consent from 73 Browns Road, Austral legally known as Lot 73 DP1248900 and attached plan | - | - | 15 July 2025 | Benzir Ahmed | | Owners Consent from 10 Ninthe Avenue, Austral legally known as Lot 915 DP2475 and attached plan | - | - | 26 September 2025 | Bathi Boctor |
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-39/2025, as amended, for the demolition of existing structures, site remediation, tree removal, Torrens Title subdivision of the existing allotment into 42 residential lots with construction of roads and associated civil works that includes construction and decommissioning of temporary on-site detention basins over Stages 1 and 2 at 5 Ninth Avenue, Austral, NSW, 2179, is determined by the grant of development consent subject to the conditions at Annexure A.
Annexure A (853 KB, pdf)
**********
Ninth Avenue Pty Ltd
Liverpool City Council [2026] NSWLEC 1041