Procent Pty Ltd v Liverpool City Council

Texts Cited: Liverpool Growth Centre Precincts Development Control Plan 2021
Planning for Bushfire Protection

Category: Principal judgment

Parties: Procent Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation: Counsel:
B Salon (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)
Solicitors:
ZBA Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s): 2025/118097

Publication restriction: Nil

Judgment

COMMISSIONER:

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s refusal of the applicant’s development application DA-431/2024 (Development Application) for a boundary adjustment between Lot 888 in Deposited Plan 2475 (Lot 888) and Lot 889 in Deposited Plan 2475 (Lot 889), collectively known as 145 Ninth Avenue, Austral (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Development Application was lodged with the respondent on 9 October 2024.

4. The Subject Land comprises two allotments, being Lot 888 and Lot 889. Both allotments are presently approximately the same size (about 1.094 ha each). The Development Application seeks to retain the two allotments that comprise the Subject Land, however, relocate the shared boundary to align with the split zoning of the site. No works are proposed as part of the proposal.

5. The Development Application was not required to be publicly notified in accordance with the Liverpool City Council Community Engagement Strategy and Community Participation Plan 2022. Therefore, no submissions were received in respect of the proposal.

6. As the Subject Land is mapped as bushfire prone land, the Development Application was referred to the Rural Fire Service of NSW (RFS) on 21 October 2024 and the RFS provided its support to the proposal on 1 November 2024.

7. The Development Application was refused on 13 March 2025.

8. The proceedings were commenced on 27 March 2025, being within the appeal period prescribed by s 8.10 of the EPA Act.

9. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 20 June 2025. I presided over the conciliation conference.

10. At the site view, the Court inspected the Subject Land, including the approximate location of the zoning boundaries and proposed boundary adjustment.

11. During the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Development Application, as amended, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement, both filed with the Court on 4 July 2025.

12. The agreed amendments (referred to hereafter as the Amended Development Application) can be summarised as follows:

13. Providing additional information including details of the location of existing and future public utility services on the Subject Land.

14. Amending boundary adjustment on the subdivision plan so that the boundary will better align with the RE1 and SP2 zone boundary, resulting in a new proposed Lot 1 that is 2.099 ha in area and a new proposed Lot 2 that is 3308.5 m2 in area.

15. Amending the subdivision plan to contain an instrument under s 88B of the Conveyancing Act 1919 (NSW) that:

(a) releases the existing right of carriageway that provides access for Lot 888 to and from Ninth Avenue across Lot 889 using the existing access driveway. The amended location of the boundary renders this right of carriageway redundant; and (b) created a new right of carriageway that provides access for the resulting Lot 1 to and from Ninth Avenue across the resulting Lot 2 using the existing driveway. (c) The parties agree that this release and creation of rights of carriageway does not have any effect on the traffic movements to and from the site and does not require consent.

13. As the presiding Commissioner, I am satisfied that the decision is one that the Court could make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

14. The applicant is the registered proprietor of the Subject Land (Class 1 Application, tab 2).

State Environmental Planning Policy (Precincts – Western Parkland City) 2021

15. The Subject Land is zoned part RE1 Public Recreation and part SP2 Infrastructure (Drainage) under the Liverpool Growth Centres Precinct Plan 2013 (Precinct Plan) contained in Appendix 4 of State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Precincts SEPP). Accordingly, the parties agree that the development the subject of the Amended Development Application is permitted with consent under the Precinct Plan.

16. I have had regard to the zoning objectives in the RE1 and SP2 zones which are extracted below:

RE1 Public Recreation

• To enable land to be used for public open space or recreational purposes.

• To provide a range of recreational settings and activities and compatible land uses.

• To protect and enhance the natural environment for recreational purposes.

SP2 Infrastructure

• To provide for infrastructure and related uses.

• To prevent development that is not compatible with or that may detract from the provision of infrastructure.

17. Pursuant to cl 2.6 of the Precinct Plan relating to subdivision, subdivision is permissible with consent. The parties agree that there is no minimum lot size control applicable to the Subject Land under the Precincts SEPP or Precinct Plan. In any event, the parties agree, and I accept that, the lot sizes resulting from the proposed boundary adjustment are acceptable.

18. Pursuant to cl 5.1 of the Precinct Plan relating to acquisition, the Subject Land is identified as being reserved for acquisition by the respondent. The parties agree, and I accept that, the future acquisition of the site will not be adversely affected by the proposal and there is no impediment to the grant of consent to the Amended Development Application having regard to cl 5.1.

19. Pursuant to cl 6.1 of the Precinct Plan relating to public utility infrastructure, the consent authority must be satisfied that any public utility infrastructure that is essential for the proposed development is available, or adequate arrangements have been made to make them available. The parties agree, and I accept that, these requirements are met having regard to the additional information provided in the Amended Development Application.

20. Finally, s 3.26 of the Precincts SEPP relating to development on flood prone and major creeks land applies to the Amended Development Application as the Subject Land is mapped as flood prone and major creeks land. Pursuant to s 3.26 of the Precincts SEPP, consent is not to be granted to the carrying out of development on land so mapped unless the matters in s 3.26(2) are taken into consideration. The parties agree, and I accept, that these requirements have been met on the basis that the Amended Development Application proposes a boundary adjustment only and no physical works.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. I accept the parties’ submission that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the proposal does not include any change to the use of the Subject Land (or works on the Subject Land) that would result in concerns with respect to contamination.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

22. The parties agree that Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Subject Land. Division 2 of Ch 6 sets out relevant matters which must be considered and/or satisfied prior to the grant of consent. The parties agree, and I accept that, as the Amended Development Application is for a boundary adjustment only, and proposes no physical works, the relevant matters listed in Div 2 of Ch 6 have been considered and there is no impediment to the grant of consent to the proposal.

Liverpool Growth Centre Precincts Development Control Plan 2021

23. The parties agree that the provisions of the Liverpool Growth Centre Precincts Development Control Plan 2021 have been considered in the assessment and determination of the Amended Development Application (see Statement of Environmental Effects prepared by Planning Ingenuity, dated 6 September 2024 (SEE), Pp 21-22).

Remaining matters in EPA Act

24. In determining the Amended Development Application and noting the above, I have taken into consideration the matters listed in s 4.15(1)(a), (b), (c) and (e) of the EPA Act as are of relevance to the proposal (see also SEE, Pp 13-15).

25. For the purposes of s 4.15(1)(d) of the EPA Act, as set out at [5], the Development Application was not required to be notified and there are subsequently no submissions to be considered.

26. Finally, as set out at [6], the Subject Land is mapped as bush fire prone land and even though the proposal seeks consent for subdivision, the land cannot be lawfully used for residential or rural purposes and therefore s 4.14 of the EPA Act applies. To this end, I confirm that I am satisfied that the development conforms to the specifications and requirements of Planning for Bushfire Protection (insofar as it is relevant for a boundary adjustment), having regard to the RFS’ support of the proposal and the Bushfire Assessment Statement prepared by Bushfire Planning & Design, dated 3 September 2024.

Conclusion

27. 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.

28. 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.

29. The Court notes that:

30. The respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant amending Development Application DA-431/2024 in accordance with the following documents:

| Amended Plan of Subdivision Ref (22107261/2), prepared by Craig Hancock, dated 27 March 2024 | 26 June 2025 | | Sydney Water Drinking Water Connection Letter – Property 4573798 | 30 Nov 2022 | | Sydney Water Drinking Water Connection Letter – Property 5207504 | 30 Nov 2022 | | Construction Access Licence - Procent Pty Ltd & Sydney Water | 17 Mar 2025 | | Survey Plan (Ref 22107261/1), prepared by Craig Hancock | 15 May 2025 |

2. The parties agree that the above amendment is minor.

Orders

30. The Court orders that:

31. The appeal is upheld.

32. Development Application DA-431/2024 for a boundary adjustment between existing lots 888 and 889 in Deposited Plan 2475 at 145 Ninth Ave Austral NSW 2179 is determined by the grant of consent subject to conditions in Annexure A.

N Targett

Commissioner of the Court

Annexure A (164 KB, pdf)

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