Ventureland Capital Pty Ltd atf Ventureland Capital v Liverpool City Council [2025] NSWLEC 1644

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Ventureland Capital Pty Ltd atf Ventureland Capital (Applicant)
Liverpool City Council (Respondent)

Representation: Counsel:
G Visentin (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Liverpool City Council (Respondent)

File Number(s): 2025/49864

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application DA-550/2024 (DA) by Liverpool City Council (Council).

2. The site is 25 Simone Crescent, Casula, being Lot 1 in DP573750. The proposal seeks consent for demolition of the site’s existing structures and the construction of a new six-storey co-living housing development.

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 29 August 2025 and at which I presided. The parties had filed 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 consent to the DA, as amended, in accordance with agreed conditions.

Jurisdiction

4. 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. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties’ agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [62]-[65]).

5. Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties agreed statement of jurisdictional prerequisites (SJP), originally forwarded to the Court on 28 August 2025 and finalised on 1 September 2025.

Liverpool Local Environmental Plan 2008

6. The parties advise that residential accommodation (including co-living housing) is permissible with consent in the applicable Zone R4 High Density Residential (in addition to the permissibility otherwise afforded by State Environmental Planning Policy (Housing) 2021). Demolition is permissible pursuant to cl 2.7 of the Liverpool Local Environmental Plan 2008 (LLEP).

7. The proposal contravenes cl 4.3 relating to maximum building height and relies on cl 4.6 (“exceptions to development standards”). The parties agree that on the basis of the development application as amended, compliance with cl 4.3 is unreasonable and unnecessary and there are sufficient environmental planning grounds to justify the contravention of the development standard. In accordance with the Environmental Planning and Assessment Regulation 2021, the DA is accompanied by a document setting out the grounds upon which the applicant seeks to demonstrate the requirements of cl 4.6(3) have been met (Minto Planning documentation dated 1 July 2025 (Minto Planning documentation)). I find that the applicant has demonstrated that:

8. Compliance with the development standard is unreasonable or unnecessary in the circumstances. This is through the Minto Planning documentation working through each of the objectives of cl 4.3 and demonstrating they are relevantly satisfied. It is demonstrated that there is no need for strict compliance with the standard because the objectives of the clause have been achieved in any event.

9. There are sufficient environmental planning grounds to justify the contravention. This is through Minto Planning documentation’s demonstration of the compatibility of the proposal with the local setting that the landscape and visual character of the area would be maintained.

10. The parties agree that the site is not identified as a flood prone area. As such, cl 5.21 does not apply. With respect to cl 6.5, the parties are satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required. I accept this advice and am also satisfied with respect to cl 6.5. I further note the advice of the parties that the site is not identified in the Acid Sulfate Soils Map. As such, cl 7.7 does not apply.

State Environmental Planning Policy (Housing) 2021

9. Part 3 of Chapter 3 (co-living housing) applies. Section 69(1) outlines the development standards for co-living housing. The parties advise that the DA, as amended, complies with each. The parties advise that the appropriate consideration has also been given to s 69(2) and the proposal is generally acceptable with reference to those matters.

State Environmental Planning Policy (Resilience and Hazards) 2021

10. Chapter 4 (Remediation of Land) applies with s 4.6 providing that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated or potentially contaminated land, 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 parties reference the site’s long history of residential use and supportive advice to indicate there are no known previous land uses which would raise concern in terms of potential for contamination. This provision is satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

11. The parties take me to Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), which applies to the proposed development as the site is located within the Georges River catchment. There are a range of matters identified for consideration and a number of areas where positive findings of satisfaction are required. Council advises it has considered relevant matters and that the Court could be satisfied with respect to relevant provisions (ie ss 6.6(2)(a)-(b) and 6.7(2)(a)-(e) of the Biodiversity and Conservation SEPP). The parties reasoning is that:

“The effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, the impact on water flow in a natural waterbody will be minimised, the impact on animals and vegetation will be kept to the minimum necessary for the carrying out of the development and the development will not have an adverse impact on aquatic reserves.”

12. I accept this advice and am satisfied in relation to these technical matters.

13. I also note the provisions of s 6.8 do not apply as the land is not flood liable.

14. Council advises it has considered the matters related to recreation and public access, listed in s 6.9(1)(a) and (b) and is satisfied with respect to s 6.9(2)(a)-(c). I accept this advice given the site location.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

15. The parties have advised that 34 submissions were received against the development application. I also note the Council’s filing of written objecting submissions from four persons and the provision of these submissions to the Court during the course of the conciliation conference. It is clear that objections remain notwithstanding the amendments to the application.

16. In the jurisdictional statement the parties explained how consideration has been given to these objections. Relevant conditions have been applied according to the parties but more particularly there have been considerable amendments to the plan when compared to the proposal as originally submitted. Council believes the proposal is now acceptable on its merits.

Conclusion

17. With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

18. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notations

19. With respect to the amendments of the DA, the Court notes that:

20. Liverpool Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicants amending the development application DA-550/2024 in accordance with the plans and documents listed below:

| Plans | | Reference/ DWG No | Title/Description | Revision | Prepared by | Date | | Architectural Plans | | A000 | Cover Page | | TEXCO Design | | | A002 | Survey | A | Ensure Consulting Pty Ltd | 27/07/2024 | | A003 | Demolition Plan | B | TEXCO Design | 18/07/2025 | | A004 | Site Plan | B | TEXCO Design | 18/07/2025 | | A005 | Site Analysis | B | TEXCO Design | 18/07/2025 | | A006 | Streetscape Analysis | B | TEXCO Design | 18/07/2025 | | A007 | GFA Calculation | B | TEXCO Design | 18/07/2025 | | A008 | Unti Schedule | B | TEXCO Design | 18/07/2025 | | A009 | Communal Living Area | B | TEXCO Design | 18/07/2025 | | A010 | Communal Open Space | B | TEXCO Design | 18/07/2025 | | A011 | Landscape and Deep Soil Calculation | B | TEXCO Design | 18/07/2025 | | A012 | Sun Eye Diagram – 21st June | B | TEXCO Design | 18/07/2025 | | A013 | Shadow Diagram 21st June | B | TEXCO Design | 18/07/2025 | | A014 | Evacuation Diagram | B | TEXCO Design | 18/07/2025 | | A015 | Height limit Diagram | B | TEXCO Design | 18/07/2025 | | A101 | Ground Floor Plan | B | TEXCO Design | 18/07/2025 | | A102 | Level 1 Plan | B | TEXCO Design | 18/07/2025 | | A103 | Level 2 Plan | B | TEXCO Design | 18/07/2025 | | A104 | Level 3 Plan | B | TEXCO Design | 18/07/2025 | | A105 | Level 4 Plan | B | TEXCO Design | 18/07/2025 | | A106 | Level 5 Plan | B | TEXCO Design | 18/07/2025 | | A107 | Roof Terrace Plan | B | TEXCO Design | 18/07/2025 | | A108 | Roof Plan | B | TEXCO Design | 18/07/2025 | | A201 | North Elevation | B | TEXCO Design | 18/07/2025 | | A202 | South Elevation | B | TEXCO Design | 18/07/2025 | | A203 | West Elevation | B | TEXCO Design | 18/07/2025 | | A204 | East Elevation | B | TEXCO Design | 18/07/2025 | | A301 | Section A | B | TEXCO Design | 18/07/2025 | | A302 | Section B | B | TEXCO Design | 18/07/2025 | | A303 | Section C | B | TEXCO Design | 18/07/2025 | | A401 | Material Schedule | B | TEXCO Design | 18/07/2025 | | A402 | Doors Schedule | B | TEXCO Design | 18/07/2025 | | A403 | Windows Schedule | B | TEXCO Design | 18/07/2025 | | A404 | Typical Kitchen Details | B | TEXCO Design | 18/07/2025 | | Civil Works Plans | | DA-C100 | Coversheet | 4 | JCO Consultants | 25/07/25 | | DA-C101 | General Notes and Specifications | 4 | JCO Consultants | 25/07/25 | | DA-C200 | General Arrangement Plan | 4 | JCO Consultants | 25/07/25 | | DA-C600 | Details – Sheet 01 | 4 | JCO Consultants | 25/07/25 | | DA-C601 | Details – Sheet 02 | 4 | JCO Consultants | 25/07/25 | | DA-C602 | Details – Sheet 03 | 4 | JCO Consultants | 25/07/25 | | DA-C700 | Internal Bulk Earthworks Plan | 4 | JCO Consultants | 25/07/25 | | Stormwater Plans | | DA-SW101 | General Notes and Specifications | 5 | JCO Consultants | 21/07/2025 | | DA-SW200 | Stormwater Concept Design – Ground Floor Plan | 5 | JCO Consultants | 21/07/2025 | | DA-SW300 | Stormwater Concept Design – Details Sheet | 5 | JCO Consultants | 21/07/2025 | | DA-SW400 | Stormwater Concept Design – OSD Catchment Plan | 5 | JCO Consultants | 21/07/2025 | | DA-SW600 | Erosion and Sediment Control Plan Details | 5 | JCO Consultants | 21/07/2025 | | Landscape Plans | | 01 | Hardscape Plan | H | Conzept Landscape Architects | 23/07/2025 | | 02 | Landscape Plan – GF | H | Conzept Landscape Architects | 23/07/2025 | | 03 | Landscape plan – Kurrajong Road | H | Conzept Landscape Architects | 23/07/2025 | | 04 | Landscape Plan – L4 | H | Conzept Landscape Architects | 23/07/2025 | | 05 | Planting Palette | H | Conzept Landscape Architects | 23/07/2025 | | 06 | Detail and Specification | H | Conzept Landscape Architects | 23/07/2025 | | 07 | Section A-A | H | Conzept Landscape Architects | 23/07/2025 | | Reports | | Title/Description | Prepared by | Date | | 1. Clause 4.6 Variation Request | Minto Planning | N/A | | Plan of Management | Gemstone Commercial | July 2025 | | Traffic Impact Assessment | Genesis Traffic | 27/06/2025 | | Waste Management Plan | Gemstone Planning | June 2025 |

Orders

20. The Court orders that:

21. The Appeal is upheld.

22. Development Application DA-550/2024 for the demolition of existing structures, construction of a 6-storey co-living housing development comprising private rooms, communal rooms and related landscaping, on Lot 1 in Deposited Plan 573750, being 25 Simone Crescent, Casula is determined by the grant of consent subject to the conditions set out in Annexure 'A' to this agreement.

23. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

P Walsh

Commissioner of the Court

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Annexure A