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[2025] NSWLEC 1841
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-02
Young 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: The Trustee for Mersey (NSW) Trust v Liverpool City Council [2025] NSWLEC 1841
Hearing dates: Conciliation conference on 22 October 2025
Date of orders: 02 December 2025
Decision date: 02 December 2025
Jurisdiction: Class 1
Before: Young AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Application No. DA-503/2024 seeking consent for a short term truck depot compromising of the demolition of existing structures, construction of gravel hardstand area, construction of shed, alteration to existing buildings for use as an office and site landscaping at Lot 5 DP2650 is approved subject to the conditions in Annexure A.
(3) The Applicant to pay the Respondent's costs thrown away as a result of the amendment of the application in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $500.
Catchwords: DEVELOPMENT APPLICATION — s34 conciliation conference — temporary truck depot — agreement reached — orders made
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.47, 8.7, 8.15, Sch 1, s 8A,
Land and Environment Court Act 1979 (NSW), s 34
National Parks and Wildlife Act 1974 (NSW), s 90
Water Management Act 2000 (NSW), s 91
Environmental Planning and Assessment Regulation 2021 (NSW), ss 35, 38, 66
State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Ch 4, ss 4.26, 4.27, 4.28B, 4.33, 4.39, 4.49, Pt 4.5
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 4.9, 4.49
Texts Cited: Liverpool City Council, Aerotropolis s7.12 Contributions Plan 2024 (July 2024)
NSW Department of Planning, Housing and Infrastructure, Western Sydney Aerotropolis Precinct Plan (September 2024)
NSW Department of Planning, Housing and Infrastructure, Recognise Country: Guidelines for Development in the Aerotropolis (November 2022)
Category: Principal judgment
Parties: The Trustee for Mersey (NSW) Trust (Applicant)
Liverpool City Council (Respondent)
Representation: Counsel:
T March (Applicant)
A Jucha (Respondent)
Solicitors:
K&L Gates (Applicant)
Liverpool City Council (Respondent)
File Number(s): 2025/15961
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. DA-503/2024 lodged with Liverpool City Council on 31 October 2024 (DA).
The Development Application No. DA-503/2024 seeks consent for a temporary truck depot comprising:
demolition of existing structures;
construction of a temporary gravel hardstand area;
construction of a temporary shed;
alterations to existing buildings for use as a temporary office; and
site landscaping and stormwater management measuress,
at 70 Mersey Road, Bradfield, legally described as Lot 5 DP2650 (the site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 22 October 2025 following a hearing on 20 and 21 October 2025 that was vacated as the parties had reached agreement. I presided over the hearing and the conciliation conference.
Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), Liverpool City Council has approved amending the DA in accordance with the amended plans.
On 22 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 DA, subject to conditions in Annexure A.
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.
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.
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.
The proposed development proposes works on waterfront land within the meaning of the Water Management Act 2000 (NSW) (WM Act). In this regard, the proposed development is Nominated Integrated Development as it requires a controlled activity approval under s 91(2) of the WM Act. The Department of Planning and Environment – Water provided General Terms of Approval on 14 January 2025, subject to conditions.
The proposed development also requires an Aboriginal Heritage Impact Permit (AHIP) under s 90 of the National Parks and Wildlife Act 1974 (NSW). Heritage NSW provided General Terms of Approval on 14 October 2025, subject to conditions.
In accordance with s 4.47(3) of the EPA Act, the parties agree and I accept that the conditions of consent in Annexure A are consistent with the general terms of approval proposed to be granted by the relevant approval body in relation to the development.
The site is located within the Western Sydney Aerotropolis under the WPC SEPP. In accordance with s 35(2)(e) of the EPA Regulation, a person must not apply for development consent to carry out development on land in the Western Sydney Aerotropolis under Chapter 4 of the WPC SEPP without an assessment of the consistency of the development with the Western Sydney Aerotropolis Plan (WSA Plan). The Amended DA includes a consistency assessment against the WSA Plan prepared by Noble Planning dated June 2025 to satisfy s 35(2)(e) of the EPA Regulation.
The site is shown on the Land Application Map – Aerotropolis under WPC SEPP. In accordance with s 66(1) of the EPA Regulation, development consent must not be granted on land shown on the Land Application Map under the WPC SEPP unless a contributions plan in in place. On 24 July 2024 the Liverpool City Council s7.12 Aerotropolis Contributions Plan 2024 was adopted by Council. The Contributions Plan applies to the site and development consent can therefore be granted.
The site is shown on the Land Application Map – Aerotropolis under WPC SEPP and Chapter 4 of the WPC SEPP therefore applies to the amended DA.
The parties agree and I accept that the proposed development complies with the applicable development controls under Chapter 4 of the WPC SEPP, including:
Assessment of Aboriginal cultural heritage and consultation with local Aboriginal communities required under s 4.26 of the WPC SEPP.
Concurrence from Transport for NSW as required under s 4.27(1) of the WPC SEPP as the site is located on ‘transport corridor land’.
Consideration of the Recognise Country: Guidelines for Development in the Aerotropolis as required under s 4.28B of the WPC SEPP.
Compliance with the design excellence provisions under Pt 4.5 of the WPC SEPP, including taking into account the findings of the Liverpool City Council Design Excellence Panel, that the development exhibits design excellence, and consideration of the matters listed under s 4.33(2) of the WPC SEPP.
Compliance with the provisions relating to consistency with Western Sydney Aerotropolis Precinct Plan 2024 (WSA Precinct Plan) as required under s 4.39 of the WPC SEPP. Clause 5.5 of the WSA Precinct Plan permits development to be inconsistent with the WSA Precinct Plan where required to enable temporary or short term uses on land and where it can be demonstrated that the intended use under the WSA Precinct Plan can be achieved. In this case, the conditions of consent in Annexure A include a condition that requires the proposed development to cease 5 years and 3 months from the issuing of an Occupation Certificate. Given this, the parties agree and I am satisfied that with the imposition of this condition, the Amended DA is consistent with the WSA Precinct Plan.
Compliance with s 4.49(1) of the WPC SEPP regarding the provision of public utility infrastructure based on the Utilities Infrastructure Report prepared by Enspire dated 1 October 2024.
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 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.
In this case, a Preliminary Site Investigation for the site prepared by KFM Geotech dated 13 August 2024 and a Preliminary Site Investigation Certificate prepared by PEM Environmental dated 13 August 2024 accompanied the DA. These documents confirm that the site is suitable for the proposed use as a temporary truck depot.
Accordingly, the parties agree and I am satisfied that contamination has been adequately considered and the site is suitable for the proposed use in accordance with s 4.6 of the Resilience and Hazards SEPP.
Pursuant to s 4.9(2) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), the consent authority cannot grant consent to the proposed development unless it has assessed whether the development is likely to have any impact on koalas or koala habitat. Based on the Koala Assessment prepared by Ecological Consultants Australia Pty Ltd dated August 2025, the parties agree and I am satisfied that the proposed development is likely to have low or no impact on koalas or koala habitat.
Chapter 6 of the Biodiversity and Conservation SEPP applies to the proposed development, as the site is located within the Hawkesbury-Nepean Catchment which is also a regulated catchment for the purposes of Chapter 6.
Based on the documents supporting the amended DA, the parties agree and I am satisfied that the applicable matters under Chapter 6 of the Biodiversity and Conservation SEPP have been considered and the proposed development will not result in a direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; and that the proposed development is not likely to have an adverse environmental impact on adjacent or downstream local government areas.
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.
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.
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.
The Court orders:
The appeal is upheld.
Development Application No. DA-503/2024 seeking consent for a short term truck depot compromising of the demolition of existing structures, construction of gravel hardstand area, construction of shed, alteration to existing buildings for use as an office and site landscaping at Lot 5 DP2650 is approved subject to the conditions in Annexure A.
The Applicant pay the Respondent's costs thrown away as a result of the amendment of the application in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $500.
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Annexure A (758 KB, pdf)
amended title
The Trustee for Mersey (NSW) Trust
Liverpool City Council [2025] NSWLEC 1841