Vicliz Pty Ltd v Liverpool City Council

Category: Principal judgment

Parties: Vicliz Pty Ltd (Applicant)
Liverpool City Council (First Respondent)
Transport for NSW (Second Respondent)

Representation: Counsel:
I Hemmings SC (Applicant)
A Jucha (First Respondent)
F Berglund (Second Respondent)
Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Liverpool City Council (First Respondent)
Bartier Perry (Second Respondent)

File Number(s): 2024/76528

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of DA-1123/2021 for construction of a two storey mixed use building comprising a supermarket, retail/business premises, potential child care centre and three level car park at 1370 Camden Valley Way in Leppington (Part Lot E in DP 28997). The development is also known as the East Leppington Neighbourhood Centre.

2. Initially listed for a hearing on 29-30 April 2025, on the request of the parties the Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) on 30 April 2025. I presided over the conciliation conference.

3. As part of the conciliation conference process the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent under s 4.16 of the EPA Act.

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. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

Jurisdictional Prerequisites

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, set out below.

6. The DA was lodged to the Respondent on 27 September 2021 pursuant to s 3.38 of the EPA Act (concurrently lodged with a planning proposal). I am satisfied that owners consent accompanied the DA as provided in the class 1 application. The Respondent notified the DA from 27 April 2022 to 25 May 2022. Two submissions of support were received and have been considered by the parties.

7. The proposed development is Integrated Development pursuant to the Water Management Act 2000. General Terms of Approval have been received from the Department of Planning and Environment – Water which have been included in Annexure A.

State Environmental Planning Policy (Precincts – Western Parkland City) 2021 – Chapter 3 Sydney Region Growth Centres – Appendix 4 Liverpool Growth Centres Precinct Plan

8. The subject site is zoned B1 Neighbourhood Centre, where the proposed development comprising building identification signage, business premises, office premises, roads and shops are permissible with consent. Pursuant to s 2.3, I have had regard to the objectives of the zone.

9. Section 4.3 height of buildings applies which allows a maximum height of 15m. The Addendum Statement of Environmental Effects prepared by GAT and Associates dated 30 April 2025 (ASEE) and architectural plans prepared by Benson McCormack Architecture with various dates (architectural plans) show the proposed development as 14.2m.

10. Section 5.10 heritage conservation applies to the site, as the site is located adjacent to a state heritage item known as WaterNSW Upper Canal. On the basis of the ASEE which details that the proposed development will not impact on the heritage significance of the state item given the distance between the item and proposal, I accept that the parties have considered cl 5.10.

11. Section 6.1 public utility infrastructure applies to the site. The ASEE details that all water, electricity and sewage services are available to the site.

12. Section 6.2 and 6.3 in relation to native vegetation apply to the site. The proposed works are located between 40m—100m away from the mapped area and there is no proposed clearing or disturbance of the mapped native vegetation.

13. Section 6.4 maximum gross floor area for retail premises in zone B1 in East Leppington Precinct applies to the proposed development. The ASEE and architectural plans demonstrate that the maximum retail gross floor area does not exceed 4,800m2, with a proposed 3,636.2m2 of retail floor area.

14. Section 6.5 vehicular access to service stations and food and drinks premises in zone B1 in East Leppington Precinct is stated to not apply to the proposed development. In any event, the parties agree that the proposed access from Camden Vallery Way complies, with the existing access restricted to ingress only.

15. I accept that the relevant preconditions are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Section 6.65 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) provides that given the lodgement date of the DA, the now repealed ch 6-12 apply. Specifically, Ch 9 applies to the site which is located in the Hawkesbury Nepean Catchment. I accept the agreement of the parties that the provisions have been satisfied on the basis of the ASEE, stormwater plans prepared by Burgess, Arnott & Grava and enforced through conditions of consent at Annexure A. I accept that the proposed development will have a neutral effect on water quality and ground water and provides adequate stormwater management measures to minimise its impacts and reuse where possible. I accept that the provisions have been met.

State Environmental Planning Policy (Industry and Employment) 2021

17. Chapter 3 of State Environmental Planning Policy (Industry and Employment) 2021 (SEPP IE) applies as the proposed development includes artwork and identification signage. As set out in the ASEE, I accept that Ch 3 and Sch 5 have been satisfied as the proposed signage is minimal, consistent with the desired future character, will have no impacts on views or natural settings, are sited appropriately and will not result in any safety or light pollution concerns.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. The DA was lodged prior to the commencement of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). I accept the Applicant’s submissions that the provisions of State Environmental Planning Policy No.55 – Remediation of Land were transferred to SEPP RH, but are to be construed as if they had not been transferred (s 30A of the Interpretation Act 1987). These provisions are generally identical. The provisions of s 4.6 of SEPP RH apply to the site in relation to contamination. The amended DA is accompanied by a Detailed Site Contamination Investigation dated 10 March 2022 and Remediation Action Plan (RAP) dated 16 March 2022, both prepared by Geo-Environmental Engineering in relation to the proposed uses and remediation strategy.

19. The RAP details a remediation strategy for the contaminated material and finds that on its implementation, the site will be suitable for the proposed uses. The recommendations have been included in the conditions of consent at Annexure A. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

20. The DA was lodged prior to the commencement of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI). Similarly, I accept the Applicant’s submissions that the provisions of State Environmental Planning Policy (Infrastructure) 2007 were transferred to SEPP RH, but are to be construed as if they had not been transferred (s 30A of the Interpretation Act 1987).

21. The parties are in some disagreement about whether the subject site has frontage to a classified road, given the location of the proposed development on part of the site. Notwithstanding, for the abundance of caution, I will address these provisions as if they do apply. The Applicant has addressed ss 2.119, 2.120 and 2.122 in the ASEE. I accept that these provisions are met for the reasons detailed in the:

22. ASEE.

23. Road Safety Audit prepared by The Transport Planning Partnership dated 19 September 2024.

24. Traffic and Parking Assessment Report and Supplementary Traffic Advices prepared by McLaren Traffic Engineer.

25. Various and conditions of consent requiring patrons of the service station to enter the proposed development separately from the existing entry off Camden Valley Way.

26. Whilst the existing driveway will be maintained, I accept that the volume of traffic will not affect the safety, efficiency and ongoing operation of the classified road. Primary access will be provided to the shopping centre from a local road, which is currently under construction. I accept that ss 2.119 and 2.122 have been considered and met. I accept that the proposed development is not sensitive development in relation to s 2.120.

27. To the extent that concurrence is required, Transport for NSW, in their capacity as Second Respondent, has provided conditions of consent incorporated into Annexure A and has agreed that the proposed development meets the provisions.

28. Section 2.48 applies due to the proximity to a substation and likely need for a new substation. Endeavour Energy have provided condition of consent, which have been included in the conditions of consent at Annexure A.

29. I accept that s 2.77 development adjacent to pipelines has been met, as the proposed development was referred to the relevant authority, Jemena, who no longer objects to the proposal.

Heads of consideration

25. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

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 that were originally in dispute between the parties.

28. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

29. The Court orders that:

30. The appeal is upheld.

31. Development consent is granted to Development Application DA-1123/2021 for the development of the East Leppington Neighbourhood Centre, including the construction of a two storey mixed use building comprising of a supermarket, retail/business premises, associated three level car park and staged construction at 1370 Camden Valley Way, Leppington being part Lot E in DP 28997 subject to the conditions in Annexure A.

S Porter

Commissioner of the Court

**********

(Annexure A) (1.40 MB, pdf)