//
[2026] NSWLEC 1072
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-19
Espinosa C
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: PR Holdings (NSW) Pty Ltd v Liverpool City Council [2026] NSWLEC 1072
Hearing dates: Conciliation conference held on 6 February 2026
Date of orders: 19 February 2026
Decision date: 19 February 2026
Jurisdiction: Class 1
Before: Espinosa C
Decision: The Court orders that:
(1) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or as assessed.
(2) The Appeal is upheld.
(3) Development Application No DA-240/2025, as amended, for the construction of a 3-storey building accommodating a centre-based child care facility for 126 children with parking within a basement level, tree removal, landscaping works and stormwater drainage works on land legally described as Lot 14 in DP413602 and known as 234 Edmondson Avenue, Austral, NSW, 2179, and Lot A in Deposited Plan 356902 and known as 110 Tenth Avenue, Austral, NSW, 2179, is determined by the grant of development consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL — centre based child care facility — conciliation conference — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7, 8.15, 10.3 Land and Environment Court Act 1979 (NSW), s 34 Education and Care Services National Regulations (2011), regs 107, 108 Environmental Planning and Assessment Regulation 2021 (NSW), s 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.1, 6.6, 6.7, 6.8, 6.9, 6.10, 6.13 State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4, cll 4.3, 6.1 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 2.118, 2.119, 3.26
Texts Cited: Liverpool City Council, Community Engagement Strategy 2022
NSW Department of Planning & Environment, Liverpool Growth Centre Precincts Development Control Plan, June 2021
Category: Principal judgment
Parties: PR Holdings (NSW) Pty Ltd (Applicant)
Liverpool City Council (Respondent)
Representation: Counsel:
E Flemming (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)
Solicitors:
Macpherson Kelley (Applicant)
Liverpool City Council (Respondent)
File Number(s): 2025/325706
Publication restriction: No
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA-240/2025 seeking consent for the construction of a three-storey childcare facility for 140 children with basement car parking (Proposed Development) at 234 Edmondson Avenue, Austral legally described as Lot 14 in DP 413602 (the Site).
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 has been held on 6 February 2026. I have presided over the conciliation conference. The parties had participated in an earlier conciliation conference pursuant to s 34 of the LEC Act on 8 December 2025.
At this conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
The Proposed Development was notified in accordance with the Respondent’s Community Engagement Strategy 2022 between 28 May 2025 to 19 June 2025 and advertised between 11 June 2025 to 30 June 2025. No submissions were received by the Respondent. In accordance with the Community Engagement Strategy 2022, the Proposed Development as amended was not renotified as the Respondent formed the opinion that the amendments did not intensify or change the external impact of the development.
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 development application.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of: s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) as to the Site having frontage onto a classified road; Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) as to the Site being located within a regulated water catchment; the State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4 Liverpool Growth Centres Precinct Plan (Precinct Plan); and Ch 3 of the Transport and Infrastructure SEPP as to the satisfaction of development standards. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note provided to the Court.
I note the following background
On 7 July 2021, the Court granted deferred development consent to Development Application No. DA-131/2019 at the Site for the demolition of existing structures and construction of a child care centre with associated basement parking, landscaping and site works (2019 Consent).
The 2019 Consent included approval for the relocation of the pedestrian crossing in front of the Site on Edmondson Avenue 10 metres south from the existing location.
The demolition works and tree removal works at the Site in accordance with the 2019 Consent has been completed. The construction works related to the approved child care centre in the 2019 Consent has not commenced and the Site has remained vacant.
The Amended DA proposes a new child care centre development with no connection to the 2019 Consent, except for the approved relocation of the pedestrian crossing. The relocation is shown on Drawing No. 07 of the Architectural Plans.
The Site is owned by the Applicant.
The stormwater drainage design proposes a connection from the Site through adjoining land at 110 Tenth Avenue (or 236 Edmondson Avenue), legally described as Lot A in Deposited Plan 356902 (110 Tenth Avenue) to drain into Tenth Avenue. There is an existing easement to drain water for the benefit of the Site burdening 110 Tenth Avenue (being Dealing DP1290055) (Existing Easement). The Proposed Development includes the associated drainage works, including the installation of a 225mm pipe and pits within the Existing Easement. Landowner’s consent from 110 Tenth Avenue has been provided for such works.
Although the Site is no longer identified as Bushfire Prone Land, a Bushfire Hazard Assessment Report was prepared by Control Line Consulting dated 10 May 2021 and filed at Tab 11 to the Class 1 Application. The reason for this is that at the time of lodgement of the DA, the Site was identified as Bushfire Prone Land on the relevant Bush Fire Prone Land Map under s 10.3(2) of the EPA Act and the Site was mapped as Category 3 Vegetation Buffer. It is noted that referral to NSW Rural Fire Services and the associated bushfire certificates are no longer required.
As Edmondson Avenue is a classified road, the DA was referred to Transport for New South Wales (TfNSW) pursuant to s 2.118 of the Transport and Infrastructure SEPP. On 10 June 2025, TfNSW provided correspondence to the Respondent advising that the section of Edmondson Avenue which relates to the Site is under the care and management of the Respondent. On that basis, TfNSW did not provide any comment on the Proposed Development.
The State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4 Liverpool Growth Centres Precinct Plan (Precinct Plan) is the relevant local environmental planning instrument that applies to the Site. The Site is zoned R3 Medium Density Residential under the Precinct Plan and centre-based child care facilities are permissible with consent in the R3 Zone.
The Proposed Development does not exceed the maximum height of building (HOB) development standard of 12 m: cl 4.3 Precinct Plan. This is depicted in Drawing No. 13 of the Architectural Plans showing a proposed HOB of 10.5m.
As required by cl 6.1 (Public Utility Infrastructure) of the Precinct Plan, the Court can be satisfied that the public utility infrastructure listed in that clause is available or that adequate arrangements have been made to make that infrastructure available when required because the Site formerly contained a residential dwelling which had supply of water, electricity, and sewage management. The Site is generally in an established area containing other residential developments, Austral Public School, and retail uses.
In further satisfaction of cl 6.1 of the Precinct Plan, the Applicant also relies on a letter from Qalchek and a Notice of Requirements from Sydney Water to confirm that the Proposed Development will be serviced by sewer and water infrastructure once it is connected to the existing system. Any additional required utility clearances will be obtained prior to works commencing on the Site. Conditions 37, 38 and 39 of the Agreed Conditions require the relevant certificates and approvals be obtained from Sydney Water, Endeavour Energy and telecommunications, and Condition 71 requires the construction certificate plans to be approved by Sydney Water. Condition 7 requires a physical sewerage connection to be made to the development.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.
The 2019 Consent approved the following contamination assessments which are referred to together as the Martens Reports:
Preliminary Site Investigation Report prepared by Martens Consulting Engineers dated November 2018;
Detailed Site Investigation Report prepared by Martens Consulting Engineers dated January 2019; and
Remediation Action Plan prepared by Martens Consulting Engineers dated March 2019,
The Martens Reports identified areas as data gaps which required further investigation. These areas were within the footprints of the dwelling, sheds and garage which were previously on the Site. Following the demolition of these structures, the Site is now vacant and an additional data gap investigation have been able to take place. Accordingly, the Applicant relies on the following contamination assessments, which have considered the findings of the Martens Reports:
Preliminary Site Investigation prepared by Foundation Earth Sciences dated 19 November 2025 (PSI);
Detailed Site Investigation prepared by Foundation Earth Sciences dated 16 December 2025 (DSI);
Remediation Action Plan prepared by Foundation Earth Sciences dated 16 December 2025 (RAP).
Based on the conclusions of the PSI, the Site can be made suitable for the Proposed Development subject to the following:
Implementation of a supplementary investigation data gap assessment to adequately address the data gaps outlined in the Martens Reports; and
implementation of an updated remediation action plan.
The additional data gap assessment referred to in the PSI was since undertaken in the DSI, which similarly concluded that the Site can be made suitable for the proposed development subject to the implementation of an updated remediation plan.
The RAP includes the required remediation and validation works, having regard to the Martens Reports, PSI and DSI. The RAP confirms that there are no recommendations for further works pending successful implementation of the RAP. The RAP concludes at p16 that the Site can be made suitable for the intended use as a centre-based child care facility. Condition 98 of the Agreed Conditions requires the remediation of the Site in accordance with the RAP and the other recommendations of the PSI and DSI are provided in Conditions 99 to 105.
Having regard to the above, the Court can be satisfied that the Site can be made suitable for its proposed use.
The Site is located within the Hawkesbury-Nepean Catchment, being a nominated water catchment listed in s 6.1 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The matters in s 6.6(1) have been considered in the following materials accompanying the Proposed Development:
Stormwater Concept Plans prepared by Telford Civil dated 17 December 2025;
Stormwater Quality Report prepared by Telford Civil dated 17 December 2025 (Stormwater Quality Report);
Experts Report - Water Quality and Aquatic Ecology prepared by H2O Consulting Group dated 18 December 2025 (Aquatic Ecology Report); and
Geotechnical Investigation Report prepared by Foundation Earth Sciences dated 22 January 2025.
The Respondent is satisfied that the Proposed Development will have a neutral effect on the quality of water entering the Hawkesbury-Nepean Catchment, and that the impact on waterflow to the natural waterbody will be minimised. This is further discussed in the Stormwater Quality Report and Aquatic Ecology Report. The Respondent is also satisfied that the Proposed Development will not have an impact on the condition, structure and floristics of native vegetation in the catchment, and the development will maintain the scenic quality of the locality: s 6.13, Biodiversity and Conservation SEPP.
The Aquatic Ecology Report confirms that the Proposed Development incorporates adequate measures to avoid impact on water quality and aquatic ecology: s 6.7, Biodiversity and Conservation SEPP.
The Site is not located on flood liable land and the proposed development will have no impact on periodic flooding: s 6.8, Biodiversity and Conservation SEPP.
The Site is not located near any natural waterbodies or foreshores, and will have no impact on any public access to recreational land uses: s 6.9, Biodiversity and Conservation SEPP.
The proposed development is not likely to have an adverse environmental impact on any adjacent or downstream local government areas: s 6.10, Biodiversity and Conservation SEPP.
The parties explain that the consent authority is able to grant consent to development on the Site, being land that has a frontage to a classified road, because the terms of the subsections (a) to (c) of s 2.119(2) of the Transport and Infrastructure SEPP are satisfied as follows:
Due to the siting of the Site, there is no alternative practical nor safe means to access the Site. Vehicular access to the development is provided by a driveway off Edmondson Avenue: s 2.119(2)(a);
The safety, efficiency and ongoing operation of Edmondson Avenue will not be adversely affected by the proposed development. The design of the vehicular access to the development is in accordance with the relevant Australian Standards, and updated swept paths have been prepared to confirm manoeuvrability (refer to Appendix B of the Addendum Traffic and Parking Assessment behind Tab 6 of Note 2 of the s34 Agreement). The development is not a type which would emit smoke or dust. The Traffic and Parking Assessment prepared by Hemanote Consultants dated 31 January 2025 (refer to Tab 8 of the Class 1 Application) confirms that the estimated traffic generation from the proposed development will not have adverse impacts on the current operational performance of Edmondson Avenue (and the existing intersections), which will continue to operate at the same levels of service. The traffic generated by the proposed development can be readily accommodated in the existing road network and the nature of the vehicles will typically be light vehicles (i.e. cars): s 2.119(2)(b);
The development has been designed to ameliorate potential traffic noise or vehicle emissions within the Site. The Environmental Noise Impact Assessment prepared by Day Design Pty Ltd dated 18 December 2025 (refer to Tab 8 of Note 2 of the s34 Agreement) has assessed the traffic noise levels from Edmondson Avenue and the acoustic recommendations have been incorporated to mitigate any traffic noise intrusion to the development. The outdoor play areas have also been designed to be located at the rear of the Site, away from Edmondson Avenue, so that the building acts as a buffer from any vehicle emissions from the road: s 2.119(2)(c).
Section 3.26 of the Transport and Infrastructure SEPP sets out development standards for particular matters relating to a centre-based child care facility that, if complied with, prevents the consent authority from requiring more onerous standards for those matters. The architectural drawings for the Proposed Development demonstrate that at least 3.25m2 of unencumbered indoor play space and at least 7m2 of unencumbered outdoor play space is provided per child, which complies with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations: s 3.26(2)(b), Transport and Infrastructure SEPP.
The Education and Care Services National Regulations provide extensive controls and requirements in addition to that of the Transport and Infrastructure SEPP, Precinct Plan and Liverpool Growth Centre Precincts Development Control Plan 2021 (Liverpool Growth Centres DCP) and includes:
licensing and approvals processes, including documentation requirements;
facilities and equipment requirements;
staffing requirements;
child number requirements;
operational requirements;
administrative requirements;
probity check requirements; and
various miscellaneous requirements.
Compliance with Education and Care Services National Regulations is assessed as part of the assessment against the Child Care Planning Guidelines in the Statement of Environmental Effects prepared by Think Planners dated 7 March 2025 and filed with the Class 1 Application at pages 70 to 72.
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. I adopt the reasons given by the parties as set out in this judgment.
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.
| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No 00 Revision E | Cover Page | Baini Design | 13 January 2026 | | Drawing No 01 Revision E | Compliance Table, Location Plan | 13 January 2026 | | Drawing No 02 Revision E | Site Context Plan | 13 January 2026 | | Drawing No 03 Revision E | Site Analysis Plan | 13 January 2026 | | Drawing No 04 Revision E | 9am Shadow Diagram | 13 January 2026 | | Drawing No 05 Revision E | 12pm Shadow Diagram | 13 January 2026 | | Drawing No 06 Revision E | 3pm Shadow Diagram | 13 January 2026 | | Drawing No 07 Revision E | Demolition Plan | 13 January 2026 | | Drawing No 08 Revision E | Site Plan / Roof Plan | 13 January 2026 | | Drawing No 09 Revision E | Basement Floor Plan | 13 January 2026 | | Drawing No 10 Revision E | Ground Floor Plan | 13 January 2026 | | Drawing No 11 Revision E | First Floor Plan | 13 January 2026 | | Drawing No 12 Revision E | Second Floor Plan | 13 January 2026 | | Drawing No 13 Revision E | Building Height Plane | 13 January 2026 | | Drawing No 14 Revision E | Elevations | 13 January 2026 | | Drawing No 15 Revision E | Elevations | 13 January 2026 | | Drawing No 16 Revision E | Section | 13 January 2026 | | Drawing No 17 Revision E | Callout Elevations | 13 January 2026 | | Drawing No 18 Revision E | Callout Elevations | 13 January 2026 | | Drawing No 19 Revision E | Kitchen & Laundry Details | 13 January 2026 | | Drawing No 20 Revision E | Typical Nappy Change | 13 January 2026 | | Drawing No 21 Revision E | Typical Bottle Prep Detail | 13 January 2026 | | Drawing No 22 Revision E | Typical Craft Bench Detail | 13 January 2026 | | Drawing No 23 Revision E | Schedule of Materials and Finishes | 13 January 2026 | | Drawing No 24 Revision E | Calc. Plan - OPA & FSR Ground Floor | 13 January 2026 | | Drawing No 25 Revision E | Calc. Plan - OPA & FSR - First Floor | 13 January 2026 | | Drawing No 26 Revision E | Calc. Plan - OPA & FSR -Second Floor | 13 January 2026 | | Drawing No 27 Revision E | Calc. Plan – Landscape Area - Ground Floor | 13 January 2026 | | Drawing No 28 Revision E | Calc. Plan - Landscape Area - First Floor | 13 January 2026 | | Drawing No 29 Revision E | Calc. Plan - Landscape Area - Second Floor | 13 January 2026 | | Drawing No 30 Revision E | Calc. Plan - Deep Soil | 13 January 2026 | | Drawing No 31 Revision E | Calc. Plan - Site Coverage | 13 January 2026 | | Drawing No 32 Revision E | Calc. Plan – Indoor Play Area – GF – 0-2 | 13 January 2026 | | Drawing No 33 Revision E | Calc. Plan – Indoor Play Area – GF – 2-3 | 13 January 2026 | | Drawing No 34 Revision E | Calc. Plan – Indoor Play Area – FF – 3-5 | 13 January 2026 | | Drawing No 35 Revision E | Calc. Plan – Indoor Play Area – SF – 4-5 | 13 January 2026 | | Drawing No 36 Revision E | 12pm Solar Access Plans | 13 January 2026 | | Drawing No 37 Revision E | 1pm Solar Access Plans | 13 January 2026 | | Drawing No 38 Revision E | 2pm Solar Access Plans | 13 January 2026 | | Drawing No 39 Revision E | Shading Devices Plans | 13 January 2026 | | Drawing No 40 Revision E | Fencing Detail - Ground Floor | 13 January 2026 | | Drawing No 41 Revision E | Fencing Detail - First Floor | 13 January 2026 | | Drawing No 42 Revision E | Fencing Detail - Second Floor | 13 January 2026 | | Drawing No 43 Revision E | 3D Perspectives | 13 January 2026 | | Drawing No 44 Revision E | Proposed Development Envelope Streetscape | 13 January 2026 | | Landscape Plans | | 2 | Drawing No: 01 Revision D | Landscape Concept Ground Floor | Outside In Design Group | 16 December 2025 | | Drawing No: L-02 Revision D | First + Second Floor | 16 December 2025 | | Stormwater Concept Plans | | 3 | Dwg No: 000 Issue C | Cover Sheet, Notes & Legend | Telford Civil | 17 December 2025 | | Dwg No: 101 Issue C | Stormwater Concept Plan Basement Floor Sheet 1 of 2 | 17 December 2025 | | Dwg No: 102 Issue C | Stormwater Concept Plan Basement Floor Sheet 2 of 2 | 17 December 2025 | | Dwg No: 103 Issue C | Stormwater Concept Plan Sheet 1 of 2 | 17 December 2025 | | Dwg No: 104 Issue C | Stormwater Concept Plan Sheet 2 of 2 | 17 December 2025 | | Dwg No: 105 Issue C | Pre-Development, OSD and WSUD Catchment Plans | 17 December 2025 | | Dwg No: 106 Issue C | OSD, WSUD and RWT Details and Calculations | 17 December 2025 | | Dwg No: 107 Issue C | DRAINS and MUSIC Models and Results | 17 December 2025 | | Dwg No: 108 Issue C | Miscellaneous Details Sheet | 17 December 2025 | | Proposed Bulk Earthworks Plan | | 4 | Dwg No: C000 Revision C | General Notes, Locality Plan & Drawing Schedule | Telford Civil | 15 December 2025 | | Dwg No: C100 Revision C | Bulk Earthworks Layout Plan | 15 December 2025 | | Dwg No: C200 Revision C | Bulk Earthworks Sections Sheet 1 | 15 December 2025 | | Dwg No: C201 Revision C | Bulk Earthworks Sections Sheet 2 | 15 December 2025 | | Documents | | 5 | Stormwater Quality Report | Telford Civil | 17 December 2025 | | 6 | Updated Addendum Traffic & Parking Report | Hemanote Consultants | 13 January 2026 | | 7 | Arboricultural Impact Assessment and Tree Management Plan | Horticultural Management Services | 18 December 2025 | | 8 | Environmental Noise Assessment | Day Design Pty Ltd | 18 December 2025 | | 9 | Water Quality And Aquatic Ecology | H2O Consulting Group | 18 December 2025 | | 10 | Preliminary Site Investigation | Foundation Earth Sciences | 19 November 2025 | | 11 | Detailed Site Investigation | Foundation Earth Sciences | 16 December 2025 | | 12 | Remediation Action Plan | Foundation Earth Sciences | 16 December 2025 | | 13 | Plan of Management | | 19 January 2026 | | 14 | Private Waste Service Confirmation Letter | WasteFree | Undated | | 15 | Qalchek letter and Sydney Water Notice of Requirements | Qalchek | 22 December 2025 | | 16 | Landowners Consent - 110 Tenth Avenue | The Churches of Christ Property Trust | 11 December 2025 |
The Court orders:
The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or as assessed.
The Appeal is upheld.
Development Application No DA-240/2025, as amended, for the construction of a 3-storey building accommodating a centre-based child care facility for 126 children with parking within a basement level, tree removal, landscaping works and stormwater drainage works on land legally described as Lot 14 in DP413602 and known as 234 Edmondson Avenue, Austral, NSW, 2179, and Lot A in Deposited Plan 356902 and known as 110 Tenth Avenue, Austral, NSW, 2179, is determined by the grant of development consent subject to the conditions at Annexure A.
**********
PR Holdings (NSW) Pty Ltd
Liverpool City Council [2026] NSWLEC 1072