Sunwell Holdings Pty Ltd v Liverpool City Council

Texts Cited: Liverpool City Council Community Engagement Strategy 2022
NSW Department of Planning, Industry and Environment
Child Care Planning Guideline, September 2021

Category: Principal judgment

Parties: Sunwell Holdings Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation: Counsel:
C Gough (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)
Solicitors:
Storey and Gough Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s): 2025/156422

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application No. DA84/2025 lodged with Liverpool City Council on 4 March 2025.

2. The Development Application, as amended, seeks consent for demolition of existing buildings and related structures on site, and construction of a single storey childcare centre (116 child place) with basement carpark and related landscaping works at Lot 1 in Deposited Plan 1274578, 183-187 Fifth Avenue, Austral NSW 2179 (the ‘site’).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 17 September 2025. I presided over the conciliation conference.

4. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), Liverpool City Council has approved amending the Development Application in accordance with the amended plans.

5. As the amended Development Application is the subject of Court proceedings, it is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.

6. On 7 October 2025, the parties submitted an 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 amended Development Application, subject to conditions in Annexure A.

Jurisdictional Prerequisites

7. The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.

8. 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.

9. For the reasons set out below, 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.

Owner’s consent

10. I accept the parties’ agreement that the amended Development Application was lodged with the consent of the owners of the land to which the development relates.

Zoning and permissibility

11. The proposed development (‘Centre-based childcare facilities’) is permissible with consent in the R3 Medium Residential Density zone and consistent with the objectives of the zone under the State Environmental Planning Policy (Precincts-Western Parkland City) 2021.

Public notification

12. The Development Application was notified in accordance with the Liverpool City Council Community Engagement Strategy 2022 between 6 March 2025 and 24 March 2025. No submissions were received during the notification period.

13. In accordance with Pt 2 of Sch 1 to the EPA Act, I accept that there is no need to re-notify the amended Development Application as the amendments do not increase the environmental impacts of the proposed development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. The site is located within the Hawkesbury-Nepean Catchment, a regulated catchment, and accordingly Ch 6 of the Biodiversity and Conservation SEPP applies.

15. Pursuant to s 6.6 (1) and (2), I accept the parties’ agreement that, subject to the implementation of the conditions of consent in Annexure A, the proposed development will not adversely affect the quality of water or water flow, will not adversely impact waterways or animals or vegetation, and will have a neutral impact on water quality in the catchment.

16. Accordingly, I am satisfied that the relevant jurisdictional prerequisites provisions of the Biodiversity and Conservation SEPP have been satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. Section 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

18. In this case, the Development Application is accompanied by a Detailed Site Investigation and Assessment Report dated 8 August 2025. The investigation found that there are levels of contaminants present on the site considered low to medium for asbestos.

19. Accordingly, a Remediation Action Plan (RAP) was prepared for the site, dated 14 August 2025. The RAP concludes that the site can be made suitable for the proposed childcare centre provided that the recommendations in the RAP are implemented.

20. With the implementation of the RAP, as required under the conditions of consent in Annexure A (conditions 122 and 187), I am satisfied that the land can be made suitable for the proposed use in accordance with s 4.6 of the Resilience and Hazards SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

21. Under s 3.23 of the Transport and Infrastructure SEPP, the consent authority must consider the provisions of the Child Care Planning Guidelines 2021*.*

22. The parties agree, and I accept that the Statement of Environmental Effects accompanying the Development Application adequately considers the proposed development against the provisions of the Child Care Planning Guideline 2021.

23. Pursuant to s 3.22 of the Transport and Infrastructure SEPP, the parties agree, and I accept that the concurrence of the Secretary of the NSW Department of Education is not required for the proposed development, as the design of the indoor and outdoor play areas complies with regulation 107 and 108 of the Education and Care Services National Regulations 2011.

Section 4.15 of the EPA Act

24. I am satisfied that the mandatory matters in s 4.15 of the EPA Act that are of relevance to the amended Development Application have been taken into consideration by the parties, including the environmental, social and economic impacts in the locality, the suitability of the site and the public interest.

Conclusion

25. Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, 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.

26. 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.

27. 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 against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

Orders

28. The Court orders:

29. The appeal is upheld.

30. Development Application DA-84/2025 (as amended) for the demolition of existing structures and construction of a single storey childcare centre (116 child place) with basement carpark and related landscape works at 183-187 Fifth Avenue, Austral be determined by the grant of consent subject to the conditions set out in Annexure A.

| M Young Acting Commissioner of the Court |

**********

Anneuxre A.611 KB.pdf