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[2025] NSWLEC 1278
General information, not legal advice.
Land and Environment Court (NSW)
2025-04-30
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: Sovereign Property Group Pty Ltd v Liverpool City Council [2025] NSWLEC 1278
Hearing dates: Conciliation conference held on 13 February 2025
Date of orders: 30 April 2025
Decision date: 30 April 2025
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application No DA-539/2023 as amended for a single storey building accommodating a seventy-two (72) place child care centre with basement parking for twenty-four (24) vehicles and associated landscaping at Numbers 28 and 29 Eighteenth Avenue, Austral NSW 2179, legally known as Lots 28 and 29 in Deposited Plan 1272703, is determined by the grant of development consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – centre based child care facility – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, s 7
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4, ss 1.2, 2.1, 2.3, 4.3, 4.4, 5.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.25, 3.26
Education and Care Services National Regulations 2011
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guidelines: Delivering Quality Child Care for NSW, 2021
Liverpool Growth Centres Precincts Development Control Plan 2021
Liverpool Growth Centres Precinct Plan 2013
Planning for Bushfire Protection 2019
Category: Principal judgment
Parties: Sovereign Property Group Pty Ltd (Applicant)
Liverpool City Council (Respondent)
Representation: Counsel:
A Sarkis (Solicitor) (Applicant)
A Jucha (Respondent)
Solicitors:
Fortis Law (Applicant)
Liverpool City Council (Respondent)
File Number(s): 2024/157958
Publication restriction: Nil
The DA was lodged with Liverpool City Council (the Respondent) on 26 October 2023. On 6 March 2024 the DA was refused by the Respondent.
On 29 April 2024, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the EPA Act against the refusal of the DA by the Respondent.
On 5 August 2024, the Court arranged a s 34 conciliation conference on site pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). After an on-site view and discussions between the parties, the s 34 conciliation conference was adjourned. Subsequently the parties were unable to reach an agreement and the s 34 conciliation conference was terminated by the Court on 28 August 2024. The matter was adjourned for a hearing on 13 February 2025.
The on-site view on 13 February 2025 was vacated, as the parties had reached a s 34 agreement on the proposed development prior to the hearing. The s 34 agreement was filed with the Court on 11 February 2025.
The matter was adjourned to a s 34 conciliation conference which I conducted, commencing in the Court on 13 February 2025.
At the s 34 conciliation conference on 13 February 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 the amended DA. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.
The s 34 agreement is based on an amended DA which includes a number of amendments to the proposed development, including:
Additional 3 bicycle spaces;
Resolution of design and operation of bin storage area;
Additional windows in the cot room;
Additional sustainability measures (solar panels and water tank);
Updated landscape plans;
Updated Plan of Management; and
A number of updated technical reports supporting the proposed development, including an amended Statement of Environmental Effects (SEE).
A signed s 34 agreement with Annexure A and amended plans (the amended DA) as agreed between the parties were filed with the Court on 11 February 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites provided by the parties on 12 February 2025.
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 below.
The DA was publicly notified between 31 October 2023 to 15 November 2023. Three submissions were received during the public notification period.
The amended plans were not re-notified as the relevant officer of the Respondent formed the opinion that the environmental impact of the amendments will be the same or lesser than the original proposal and that the impact on the owners and occupiers of adjoining land will not be detrimentally affected in any manner.
The Respondent advised that on the DA form the Applicant elected that the application was not integrated development. However, the DA was referred by the Respondent to the NSW Rural Fire Service (RFS), the NSW Department of Planning and Environment (Water), and Endeavour Energy.
Copies of the requirements of the NSW Department of Planning and Environment (Water) (dated 8 December 2024) and Endeavour Energy (dated 19 January 2024) are attached to the conditions of consent.
The parties advise that RFS in its response noted that as the site was on bush fire prone land (BFPL), compliance was required with Chapter 6 of the Planning for Bushfire Protection 2019 (PBP 2019). In its response dated 12 August 2024 the RFS acknowledged that land surrounding the site had recently been developed and the current BFPL map does not reflect the present management that has occurred post-development. The RFS suggested that the Applicant apply to have the site (and adjoining land) re-mapped. This issue is further discussed at pars [40] – [43] below.
State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (the Precincts SEPP) is the relevant environmental planning instrument that applies to the site. Appendix 4 (Liverpool Growth Centres Precinct Plan 2013) (the Precinct Plan) of the Precincts SEPP is applicable to the site; and
The site is zoned Low Density Residential R2 pursuant to s 2.2 of the Precinct Plan; and
(a) The proposed development for centre-based child care facilities is permissible with consent in the R2 zone pursuant to s 2.3 of the Precinct Plan; (b) Section 2.3(2) of the Precinct Plan requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; (c) 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;
Pursuant to s 4.3 of the Precinct Plan, the maximum height of buildings (HOB) on the site is 9 metres; and the parties advise that the amended DA is compliant with the building height limit at 8.8m;
The site is not subject to a floor space ratio control under s 4.4 of the Precinct Plan, but is subject to floor space ratio control of 0.5:1 under s 3.25 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Infrastructure SEPP) referred to in para [33] below;
Section 5.10 of the Precinct Plan relates to heritage conservation. The parties advise that s 5.10 does not apply to the site as it is not listed as a heritage item, nor is it within a conservation area or have any heritage items within close proximity;
The parties advise that the site is not identified as being flood prone on the Development Control Map Sheet DVC_012 in the Precincts SEPP;
The parties submit that the proposed development is consistent with the aims contained at s 1.2 of the Precinct Plan, including in providing innovative development which encourages employment and economic growth, and that the proposed childcare facility will provide valuable childcare services and employment opportunities to surrounding new residential estates within the area.
Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the 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.
The parties advise that:
The site is within the South West Growth Centre under the former State Environmental Planning Policy (Sydney Region Growth Centres) 2006 and has been marked for future redevelopment. The site is within the certified area of the South West Growth Centre under Sch 2 of the Biodiversity Certification Order and all existing trees can be removed from the site; and
As the site is devoid of vegetation there is no requirement for the removal of vegetation as part of the proposed development. The amended DA incorporates high quality landscape embellishment works which will reduce the bulk and scale of the development, soften the built form and assist in maintaining privacy to neighbouring properties.
Chapter 6 of the Biodiversity SEPP applies to the proposed development as the site is located within the Hawkesbury-Nepean Catchment. Chapter 6 of the Biodiversity SEPP seeks to manage and promote integrated catchment management policies. The parties advise that:
Part 6.2 of the Biodiversity SEPP provides the jurisdictional prerequisite to the grant of consent to development in a regulated catchment, which includes that the consent authority is satisfied that the proposed development ensures that the matters set out in ss 6.6–6.9 of the Biodiversity SEPP are met;
The proposed development does not detract from the principles set out in Pt 6.2 of the Biodiversity SEPP, given the nature of the development and environmental safeguards proposed including detailed drainage concepts and erosion and sediment controls;
As the proposed development is not likely to have an adverse impact on land in any adjacent or downstream local government areas, the Respondent is not required to consult with any other Councils in accordance with s 6.10 of the Biodiversity SEPP; and
The Respondent has considered the proposed development and agrees that the Court can be satisfied that the applicable provisions of the Biodiversity SEPP have been met.
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards 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 a Preliminary Contamination Assessment was prepared as part of the Parent Subdivision which determined the site to be suitable for residential development, subject to conditions. A Remedial Action Plan (RAP) was also prepared which proposed validation works on the site to make it suitable, which was carried out to allow for the registration of the subdivision.
The Applicant has undertaken a Geotechnical Investigation Report (GIR), Detailed Site Investigation (DSI), and a Remedial Action Plan (RAP). The GIR, DSI and RAP were prepared by Geotechnical Consultants Australia and submitted to the Respondent in support of the DA.
The parties advise that the most recent RAP prepared in response to the recommendations made in the DSI confirms that the site can be made suitable for its intended land use, subject to the implementation of adequate remedial measures.
The conditions of consent include various conditions relating to contamination matters, including requirements to undertake validation works (in particular Condition 113).
The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.
Chapter 3 of the Infrastructure SEPP aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW.
Under s 3.23 of the Transport and Infrastructure SEPP - Centre-based child care facility - matters for consideration by consent authorities, a consent authority must consider applicable provisions of the Child Care Planning Guideline 2021 (the Guideline) (at [36] below).
The parties advise that the amended DA proposes a FSR of 0.33:1, which complies with s 3.25(1) of the Transport and Infrastructure SEPP which provides for a minimum FSR of 0.5:1.
Section 3.26 of the Transport and Infrastructure SEPP contains non-discretionary development standards for centre-based child care centres. The parties submit that the amended DA provides sufficient unencumbered indoor play space and unencumbered outdoor play space per child consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations 2011.
The parties advise that compliance with the Transport and Infrastructure SEPP is addressed in the updated SEE.
The Regulations provide extensive controls and requirements in addition to that of Local Environmental Plans and Development Control Plans and includes licensing and approvals processes, including documentation requirements; facilities and equipment requirements; staffing requirements; child number requirements; operational requirements; administrative requirements; and probity check requirements; and
The parties advise that the amended DA has been assessed as complying with the Regulations in the updated SEE.
The Guideline establishes the assessment framework to deliver consistent planning outcomes and design quality for centre-based child care facilities in NSW. Section 3.23 of the Transport and Infrastructure SEPP requires that the consent authority must take into consideration any applicable provisions of the Guideline before determining a development application; and
The parties advise that compliance with the Guideline is addressed in the updated SEE.
The parties advise that the Liverpool Growth Centres Precincts Development Control Plan 2021 (the Growth Centres DCP) is in place to guide future development in the Austral and Leppington North Precincts. The site is located within the Leppington North Precinct, and therefore the Growth Centres DCP applies to the site.
The Growth Centres DCP aims to promote high quality urban design outcomes within the context of environmental, social and economic sustainability. The parties advise that compliance of the proposed development with the Growth Centres DCP is addressed in the updated SEE.
Schedule 1 of the Growth Centres DCP applies to the Austral and Leppington North Precincts. In relation to bushfire risk, the parties advise that:
Pursuant to s 4.14(1)(a) of the EPA Act, the Court must be satisfied that the amended DA conforms to the specifications and requirements of PBP 2019;
Pursuant to s 4.14(1)(b) of the EPA Act, the Court must be provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development confirms to the relevant specifications and requirements;
The amended DA includes this letter, which confirms that proposed development conforms to the specifications of the PBP 2019, prepared by NSW Rural Fire Service, having regard to the proposed development and the current management of vegetation. This is also addressed in the response dated 21 July 2024;
This letter has been prepared by Craig Burley who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment. As such, the parties advise that the letter is an appropriate certificate for the purpose of s 4.14(1)(b) of the EPA Act;
As a consequence of this letter, the Applicant and the Respondent consider that the Court can be satisfied the requirements of s 4.14(1) of the EPA Act are satisfied, and pars 24(e) and 27(g) of the Respondent’s contentions are resolved; and
Conditions 42 and 124 of the conditions of consent require that the recommendations provided in the approved Bushfire Hazard Assessment Report, Ref 22.02.56.2, prepared by Control Line Consulting, dated 30 March 2023, shall be implemented and incorporated into the design and construction of the development and be shown on plans accompanying the Construction Certificate application, and shall be carried out for the proposed development prior to the issue of an Occupation Certificate.
As discussed at para [18], the RFS in its response dated 12 August 2024 (as annexed to the conditions of consent) acknowledged that land surrounding the site had recently been developed and the current bush fire prone land (BFPL) map does not reflect the present management that has occurred post-development. The RFS suggested that the Applicant apply to have the site (and adjoining land) re-mapped.
In its letter to the Respondent dated 12 August 2024, the RFS also stated that: “It should be noted that if the site is not mapped as bush fire prone land (BFPL), a Bush Fire Safety Authority (BFSA) will not be required and the requirements of PBP 2019 and associated addendum will not apply in accordance with Figure 2.4 of PBP 2019 and 100b of the Rural Fires Act 1997”.
However the parties acknowledge that, pursuant to s 100B of the Rural Fires Act 1997, if the site and adjoining land is not re-mapped as suggested by the RFS in its letter of 12 August 2024, a BFSA must be obtained prior to the development commencing, noting the proposed use of the site as a child care centre fits within the definition of development for a special fire protection purpose.
The parties’ experts agree that all contentions raised in the Statement of Facts and Contentions (the SOFAC) filed 28 May 2024 have been resolved by the preparation of:
Amended plans and documents referred to at item 2(a) of the agreement between the parties under s 34(3) of the LEC Act; and
Agreed conditions of consent.
Having considered the advice of the parties provided above at [13]-[43] 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 Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application DA-539/2023 made on 11 February 2025 to rely on the documents specified below:
| No | Document | Ref No. | Prepared by | Rev | Date | | 1. | Architectural Plans | | General Notes | A0.00 | Creative Drafting Services | C | 05 Aug 2024 | | Site Plan and Notes | A1.00 | Creative Drafting Services | C | 05 Aug 2024 | | Basement Carpark Layout and Notes | A1.01 | Creative Drafting Services | C | 05 Aug 2024 | | Ground Floor Layout | A1.02 | Creative Drafting Services | C | 05 Aug 2024 | | Roof Layout | A1.03 | Creative Drafting Services | C | 05 Aug 2024 | | Playground Set-Outs and Notes | A1.04 | Creative Drafting Services | C | 05 Aug 2024 | | Elevations 1-4 and Section 5 | A1.05 | Creative Drafting Services | C | 05 Aug 2024 | | Coloured Scheme Elevations | A1.06 | Creative Drafting Services | C | 05 Aug 2024 | | Coloured Scheme Elevations | A1.07 | Creative Drafting Services | C | 05 Aug 2024 | | Coloured Unencumbered Area Layouts | A1.08 | Creative Drafting Services | C | 05 Aug 2024 | | Site Cut and Fill Plan | A1.09 | Creative Drafting Services | C | 05 Aug 2024 | | Landscape Ratio Plan | A1.10 | Creative Drafting Services | C | 05 Aug 2024 | | Boundary Fence Elevations | A1.11 | Creative Drafting Services | C | 05 Aug 2024 | | Shadow Diagrams for the Winter Solstice (June 2022) | A1.12 | Creative Drafting Services | C | 05 Aug 2024 | | Kitchen Set-Out and Elevations | A1.13 | Creative Drafting Services | C | 05 Aug 2024 | | Solar Panel Roof Allocation | A1.14 | Creative Drafting Services | C | 05 Aug 2024 | | Emergency Evacuation | F1.00 | Creative Drafting Services | C | 05 Aug 2024 | | 19. | Landscape Plans | | Landscape Coversheet | 000 | Site Image | B | 12 Aug 2024 | | Landscape Plan | 100 | Site Image | B | 12 Aug 2024 | | Landscape Details | 501 | Site Image | A | 22 Jul 2024 | | 22. | Stormwater Plans | | Coversheet | S100 | Deboke Engineering Consultants | 03 | 12 Aug 2024 | | Specifications Sheet | S101 | Deboke Engineering Consultants | 03 | 12 Aug 2024 | | Basement Plan | S200 | Deboke Engineering Consultants | 03 | 12 Aug 2024 | | Ground Floor Plan | S201 | Deboke Engineering Consultants | 03 | 12 Aug 2024 | | Roof Plan | S202 | Deboke Engineering Consultants | 03 | 12 Aug 2024 | | Details Sheet | S300 | Deboke Engineering Consultants | 03 | 12 Aug 2024 | | Erosion and Sediment Control Plan | S400 | Deboke Engineering Consultants | 03 | 12 Aug 2024 | | 25. | Details of External Finishes/Materials | Creative Drafting Services | - | - | | 26. | Bushire Response | Control Line Consulting | - | 21 Jul 2024 | | 27. | Plan of Management | Applicant | - | 06 Aug 2024 | | 28. | Social Impact Comment | Think Planners | - | 25 Jul 2024 | | 29. | Amended Statement of Environmental Effects | Think Planners | - | 25 Jul 2024 | | 30. | Addendum Traffic & Parking Report | Hemanote Consultants | - | 29 July 2024 | | 31. | Geotechnical Addendum | CEC Geotechnical | - | 29 July 2024 | | 32. | Geotechnical Response | CEC Geotechnical | 1 | 29 July 2024 | | 33. | Noise Assessment | Renzo Tonin & Associates | 2 | 05 Jul 2024 | | 34. | Groundwater Contamination Assessment | CEC Geotechnical | 2 | 15 Jan 2025 | | 35. | Confirmation of Compliance with Planning for Bushfire Protection 2019 | Control Line Consulting | - | 10 Dec 2024 |
That the parties acknowledge that, pursuant to section 100B of the Rural Fires Act 1997, a Bush Fire Safety Authority must be obtained prior to the development commencing.
The Court orders:
The appeal is upheld.
Development Application No DA-539/2023 as amended for a single storey building accommodating a seventy-two (72) place child care centre with basement parking for twenty-four (24) vehicles and associated landscaping at Numbers 28 and 29 Eighteenth Avenue, Austral NSW 2179, legally known as Lots 28 and 29 in Deposited Plan 1272703, is determined by the grant of development consent subject to the conditions at Annexure A.
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Sovereign Property Group Pty Ltd
Liverpool City Council [2025] NSWLEC 1278