170 Willmington Road Pty Ltd v Liverpool City Council

[2025] NSWLEC 1600

Land and Environment Court

New South Wales

Medium Neutral Citation:

170 Willmington Road Pty Ltd v Liverpool City Council [2025] NSWLEC 1600

Hearing dates:

2-4 June 2025

Date of orders:

22 August 2025

Decision date:

22 August 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

In matter number 2024/183987 (Concept DA):

(1) The appeal is dismissed.

(2) Development Application DA 92-2024 seeking concept development approval for the use of the site as a logistics hub and related industrial uses within three warehouse buildings at 170 Willmington Road, Luddenham is determined by way of refusal of consent.

(3) Exhibits are returned with the exception of Exhibits E and 1.

In matter number 2024/184071 (Stage 1 DA):

(1) The appeal is dismissed.

(2) Development Application DA 93-2024 seeking approval for Stage 1 works being demolition, tree removal, subdivision of the site into five lots, bulk earthworks, civil works, stormwater drainage and provision of services for future light industrial development at 170 Willmintgton Road, Luddenham is determined by way of refusal of consent.

(3) Exhibits are returned with the exception of Exhibit M and 10.

Catchwords:

DEVELOPMENT APPLICATION – concept development application – stage one development application – Aerotropolis – industrial subdivision – role of designing with country and landscape led design controls in the Western Sydney Aerotropolis Precinct Plan – design excellence – appeals dismissed

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.24, 4.46, 8.7

National Parks and Wildlife Act 1974 (NSW), s 90

Environmental Planning and Regulations 2021 (NSW), s 44

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

State Environmental Planning Policy (Precincts – Western Sydney Parkland City) 2021, Ch 4, ss 4.3, 4.10, 4.26, 4.28(B), 4.31, 4.33, 4.38, 4.39, Sch 2

Cases Cited:

Ballina Shire Council v Palm Lake Works [2020] NSWLEC 41

Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22

Cameron v Nambucca Shire Council (1997) 95 LGERA 268

Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure & Anor; Australian Walkabout Wildlife Park Pty Limited (ACN 115 219 791) as Trustee for the Gerald and Catherine Barnard Family Trust v Minister for Planning and Infrastructure & Anor [2015] NSWLEC 1465

Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88

Texts Cited:

NSW Government, Western Sydney Aerotropolis Plan, September 2020

NSW Government, Western Sydney Aerotropolis Precinct Plan, March 2022

NSW Government, Recognise Country: guidelines for development in the Aerotropolis, November 2022

NSW Government, Western Sydney Aerotropolis Development Control Plan, November 2022

NSW Government, Cultural Landscapes: A practical guide for park management, October 2010

Category:

Principal judgment

Parties:

170 Willmington Road Pty Ltd ATF 170 Willmington Unit Trust (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Galasso, SC (Applicant)
A Jucha (Respondent)

Solicitors:
Mills Oakley (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/184071
2024/183987

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: These two proceedings were heard concurrently. In the first proceedings, the Applicant has appealed the deemed refusal of their Development Application DA 92-2024 (Concept DA) pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The Concept DA seeks concept approval for the use of the site as a logistics hub and related industrial uses within three warehouse buildings, associated car parking and landscaping.

2. The development of the site sought under the Concept DA is proposed to be staged as follows:

• Stage 1: Demolition, tree removal, subdivision, bulk earthworks, internal roads (Approval is sought for stage 1 in the second proceedings before the Court).

• Stage 2: Lot 1 built form.

• Stage 3: Lot 2 and Lot 3 built form.

• Stage 4: Lot 4 and Lot 5 built form, Sydney Water Land Reserve Acquisitions Area 1 and Area 2.

3. In the second proceedings the Applicant has appealed against the deemed refusal of their Development Application DA 93-2024 (Stage 1 DA). That development application seeks consent for demolition, tree removal, subdivision of the site into five future development lots which includes a residue lot that will be subdivided in future for acquisition by Sydney Water for stormwater infrastructure, associated subdivision works including bulk earthworks, civil works, stormwater drainage and the provision of services for future light industrial development.

4. The development in both applications is proposed at 170 Willmington Road, Luddenham (Lot 2 DP 827223).

Site and locality

5. The subject site, 170 Willmington Road, Luddenham, is located on the eastern side of Willmington Road. The site is some 12.36 hectares and slopes gently away from the street frontage. The site contains a man-made dam and some fifteen scattered trees. The site is currently used for rural purposes, as are the adjoining properties.

6. The Luddenham village is located approximately 500m to the south of the site and the Nancy Bird Walton Airport is under construction some 2.5klm to the south east of the site.

7. The site contains a registered Aboriginal site: Archaeological Heritage and Information Management System database (AHIMS) number 45-4-4783.

Concept DA Issues

8. The Respondent maintains that the Concept DA should be refused for the following reasons:

1. The Application has failed to meet the overall objective of the Western Sydney Aerotropolis Plan, September 2020 (WASP) to Recognise Country and Design for Country. Further, the development is inconsistent with the WASP. In particular:

1. The development is inconsistent with Part 2.1 of the WASP to achieve a landscape – led approach and to create a functional Blue-Green city structure.

2. The development is inconsistent with Part 2.1.1 of the WASP to Start with Country and to allow traditional understandings of Country to influence design.

3. The development is inconsistent with Part 4.65 ‘Heritage’ of the WASP as it does not preserve indigenous heritage items located on the site. It is an agreed fact that the site contains a registered Aboriginal site: Archaeological Heritage and Information Systems database (AHIMS) number 45-4-4783.

2. The development is inconsistent with s 4.28(B) of State Environmental Planning Policy (Precincts – Western Sydney Parkland City) 2021 (SEPP Precincts), which states that consent must not be granted to development on land unless the consent authority has considered ‘Recognise Country: guidelines for development in the Aerotropolis’ (Recognise Country Guidelines).

3. The development application fails to consider the effect of the proposed development on the heritage item pursuant to s 4.26(4) of SEPP Precincts and relies on draft documents.

4. Concurrence has not been provided by Heritage NSW pursuant to s 90 of the National Parks and Wildlife Act 1974 (NSW) (NPWS Act).

5. The development does not satisfy the precondition at cl 4.31(2) of SEPP Precincts as the consent authority can not form the opinion that the development exhibits design excellence.

6. Pursuant to s 4.38 of SEPP Precincts a precinct plan is required to be developed for the Aerotropolis. That plan is the Western Sydney Aerotropolis Precinct Plan, March 2022 (the Precinct Plan). The development is inconsistent with the Precinct Plan and accordingly, the development consent must not be granted to development pursuant to s 4.39 of the Precinct Plan. In particular, the development is inconsistent with:   

1. the vision detailed at Part 2.6 ‘Agribusiness’;

2. the delivery of a ‘blue-green framework’ at Part 4 ‘Urban Structure’;

3. the requirements of Part 4.3 ‘Aboriginal Culture and Heritage – Recognising Country’;

4. the requirements of Part 4.5 ‘Blue -Green Infrastructure framework’;

5. the requirements of Part 4.5.3 ‘Public domain and canopy cover’;

6. the delivery of the Movement Framework at Part 4.6;

7. the maximum height in Part 5.2. Height.

7. There is insufficient evidence for the consent authority to be satisfied whether the land is contaminated. Further, whether it requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, or whether the land will be remediated before the land is used for the purpose proposed in the application.

8. The development application does not have suitable access from the Classified Road.

Stage 1 DA issues:

9. The Respondent maintains that the Stage 1 DA should be refused for the following reasons:

1. The Application has failed to meet the overall objective of the WASP to Recognise Country and Design for Country.

2. Concurrence has not been provided by Heritage NSW pursuant to s 90 of the NPWS Act.

3. The development is inconsistent with s 4.28(b) of SEPP Precincts which states that consent must not be granted to development on land unless the consent authority has considered Recognise Country Guidelines.

4. Concurrence had not been received from Transport for NSW (TfNSW) pursuant to s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI). Further, the development is inconsistent with Part 4.6 Movement Framework in the Precinct Plan

5. The development is inconsistent with the Western Sydney Aerotropolis controls at Ch 4 of SEPP Precincts. Accordingly, the development consent must not be granted to development pursuant to s 4.39 of the SEPP Precincts.

6. The Western Sydney Aerotropolis Precinct Plan (the Precinct Plan) applies to the site. The Respondent argues the Stage 1 DA application is inconsistent with the Precinct Plan because:

1. the proposed development does not reflect or appropriately distinguish the proposed use in line with the vision of the Agribusiness Precinct: Part 2.6

2. The applicant has not effectively assessed the proposed land use as required by the controls at Part 4.1 ‘Proposed Land use and Structure Plan’.

3. The proposed subdivision is not consistent with the controls in the Precinct Plan at Part 4.2 ‘Subdivision and Block Structure’.

4. The Applicant has not provided an appropriate response to Part 4.3 ‘Aboriginal Culture and Heritage – Recognising Country’ and they have not provided a Recognising Country report.

5. The proposed development is inconsistent with the integration of Blue – Green Infrastructure outlined at Part 4.5 of the Precinct Plan.

6. The applicant has not prepared a Design Excellence Strategy prior to lodging as outlined in Part 5.6 ‘Design Excellence’ in the Precinct Plan.

7. The development is inconsistent with the provisions of the Western Sydney Aerotropolis Development Control Plan 2022 (Aerotropolis DCP). Specifically, the following controls:

1. Part 2.1: Recognise Country.

2. Part 2.2: Heritage.

3. Part 2.3: Stormwater, Water Sensitive Urban Design and Integrated Water Management.

4. Part 2.4: Vegetation and Biodiversity.

5. Part 2.7: Service and Loading design.

6. Part 2.12 Sustainability.

7. Part 3.1 Local Road and Network design.

10. A number of the preceding contentions were resolved prior to the hearing through the joint conference of experts and the production of their respective expert reports. By consent the Applicant was granted leave to amend the Concept DA and the Stage 1 DA at the commencement of the hearing.

Remaining issues

11. At the close of the hearing the key issues that remained for determination in both proceedings can be grouped into five main issues:

1. Aboriginal cultural heritage

2. Landscape led approach

3. Built form and Design Excellence

4. Intersection with Luddenham Road

5. Contamination

12. The judgment commences by examining the Respondent’s contentions in relation to Aboriginal cultural heritage. That broad issue encompasses the Concept DA contentions detailed at paragraph [5] in sub paragraph (1)(b), (2), (3), (4) and (6) and the Stage 1 DA contentions detailed at paragraph [6] in sub paragraph (1), (2), (3), (6)(d) and (7)(a),(b).

Aboriginal Cultural Heritage

The planning framework

13. I have summarised the planning framework relevant to the contentions in relation to Aboriginal cultural heritage below.

Western Sydney Aerotropolis Plan

14. The WASP is not a statutory plan but rather provides a high-level strategic plan for the Aerotropolis growth area and includes planning visions, objectives and principles for each precinct.

15. The overarching objective of the WASP is:

Recognise Country

Acknowledge Traditional Custodians and provide opportunities to Connect with Country, Design for Country and Care for Country when planning for the Aerotropolis.

16. Part 2.1.1 of the WASP ‘Starting with Country’ describes how the overarching objective and the concept of Country and Aboriginal peoples understanding should influence planning and development in the Aerotropolis. Importantly the focus of the WASP is on how these concepts influence planning, urban design and landscape management at a strategic level and the process of plan making.

17. In the Structure Plan, the WASP identifies the site as part of a precinct for agribusiness land use.

18. Part 4.6.5 of the WASP ‘Heritage’ states that key heritage sites, significant cultural landscapes and items will be preserved, and where appropriate, activated and integrated into development. Importantly, the WASP outlines the process for this to occur as:

‘During precinct planning, detailed site investigations will occur to identify and protect Aboriginal and non-Aboriginal heritage. The outcomes of these investigations will then inform master planning and will be considered in development applications’.

State Environmental Planning Policy (Precincts – Western Parkland City) 2021

19. Chapter 4 of SEPP Precincts outlines the development standards applicable to the Wester Sydney Aerotropolis. The subject site is within the mapped bounds of the precinct: s 4.3 of SEPP Precincts.

20. Pursuant to s 4.10 and the land use table in SEPP Precincts the site is zoned Agribusiness. The objectives of the zone are:

•  To encourage diversity in agribusiness, including related supply chain industries and food production and processing that are appropriate for the area.

•  To encourage sustainable and high technology agribusiness, including agricultural produce industries.

•  To enable sustainable agritourism.

•  To encourage development that is consistent with the character of Luddenham village.

•  To maintain the rural landscape character and biodiversity of the area.

21. Section 4.26 of SEPP Precincts addresses ‘Heritage conservation’. The terms of the provision are:

4.26   Heritage conservation

Note.

Heritage items (if any) are listed and described in Schedule 2. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 2.

(1)  The objectives of this section are—

(a)  to conserve the environmental heritage of the land to which this Chapter applies, and

(b)  to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, and

(c)  to conserve archaeological sites, and

(d)  to conserve Aboriginal objects and Aboriginal places of heritage significance.

(2) Requirement for consent Development consent is required for the following—

(a)  demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—

(i)  a heritage item,

(ii)  an Aboriginal object,

(iii)  a building, work, relic or tree within a heritage conservation area,

(b)  altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 2 in relation to the item,

(c)  disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,

(d)  disturbing or excavating an Aboriginal place of heritage significance,

(e)  erecting a building on land—

(i)  on which a heritage item is located or that is within a heritage conservation area, or

(ii)  on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

(f)  subdividing land—

(i)  on which a heritage item is located or that is within a heritage conservation area, or

(ii)  on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.

(3) When consent not required However, development consent under this section is not required if—

(a)  the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development—

(i)  is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and

(ii)  would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or

(b)  the development is in a cemetery or burial ground and the proposed development—

(i)  is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and

(ii)  would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or

(c)  the development is limited to the removal of a tree or other vegetation that the relevant council is satisfied is a risk to human life or property, or

(d)  the development is exempt development.

(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this section in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.

(5)  Subsection (4) applies regardless of whether a heritage management document is prepared under subsection (6) or a heritage conservation management plan is submitted under subsection (7).

(6) Heritage assessment The consent authority may, before granting consent to development—

(a)  on land on which a heritage item is located, or

(b)  on land that is within a heritage conservation area, or

(c)  on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

(7) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this section.

(8) Archaeological sites The consent authority must, before granting consent under this section to the carrying out of development on an archaeological site (other than land listed on the State Heritage Register or to which an interim heritage order under the Heritage Act 1977 applies)—

(a)  notify the Heritage Council of its intention to grant consent, and

(b)  take into consideration a response received from the Heritage Council within 28 days after the notice is sent.

(9) Aboriginal places of heritage significance The consent authority must, before granting consent under this section to the carrying out of development in an Aboriginal place of heritage significance—

(a)  consider the effect of the proposed development on the heritage significance of the place and an Aboriginal object known or reasonably likely to be located at the place by means of an adequate investigation and assessment (which may involve consideration of a heritage impact statement), and

(b)  notify the local Aboriginal communities, in writing or other appropriate manner, about the application and take into consideration a response received within 28 days after the notice is sent.

(10) Demolition of nominated State heritage items The consent authority must, before granting consent under this section for the demolition of a nominated State heritage item—

(a)  notify the Heritage Council about the application, and

(b)  take into consideration a response received from the Heritage Council within 28 days after the notice is sent.

(11) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Chapter, if the consent authority is satisfied that—

(a)  the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and

(b)  the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c)  the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d)  the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e)  the proposed development would not have a significant adverse effect on the amenity of the surrounding area.

22. Pursuant to s 4.26(2)(c) of SEPP Precincts development consent is required to move or demolish an Aboriginal object. Neither SEPP Precincts nor the EPA Act does not provide a definition of Aboriginal object, however I accept the submission of Mr Jucha that the location of AHIMS site 45-5-4783 on the site meets the definition of an Aboriginal object. The Concept DA and Stage 1 DA both involve works that would involve the movement and/or demolition of this object. Consent is sought, satisfying s 4.26(2)(c) of SEPP Precincts.

23. Section 4.26(4) of SEPP Precincts does not apply as the site does not contain a heritage item, or a heritage conservation area listed in Sch 2 of SEPP Precincts.

24. The Respondent argues that s 4.26(9) of SEPP Precincts applies as the site falls within the definition of an Aboriginal place of heritage significance. This was accepted by the Applicant. The term “Aboriginal place of heritage significance” is not defined in SEPP Precincts. The site has not been declared as an Aboriginal Place within the meaning of s 84 of the NPWS Act. I accept the agreed submission of the parties that in circumstances where the site contains AHIMS site 45-5-4783 and is part of the site is mapped within the Precinct Plan as having moderate Aboriginal cultural significance this is an appropriate conclusion.

25. Section 4.26(9) of SEPP Precincts states:

(9) Aboriginal places of heritage significance The consent authority must, before granting consent under this section to the carrying out of development in an Aboriginal place of heritage significance—

(a)  consider the effect of the proposed development on the heritage significance of the place and an Aboriginal object known or reasonably likely to be located at the place by means of an adequate investigation and assessment (which may involve consideration of a heritage impact statement), and

(b)  notify the local Aboriginal communities, in writing or other appropriate manner, about the application and take into consideration a response received within 28 days after the notice is sent.

26. Thus, the provision places two obligations on the consent authority:

1. Firstly, to consider the effect of the proposed development on the heritage significance of the place and/or object by means of adequate investigation and assessment; and

2. Secondly, to notify the local Aboriginal communities, in writing or other appropriate manner, about the application and take into consideration a response received within 28 days after the notice is sent.

27. My consideration of s 4.26(9)(a) of SEPP Precincts is at [80].

28. The second mandatory requirement of notification has not occurred. If the Court was of a mind to grant consent this requirement of notification and consideration of responses would be required prior to the grant of consent.

29. Further, s 4.26B of SEPP Precincts states that development consent must not be granted to development on land to which the SEPP applies unless the consent authority has considered Recognise Country Guidelines published in November 2022.

30. My consideration of Recognise Country Guidelines commences at [89].

31. Part 4.5 Design Excellence of SEPP Precincts applies to the development as it meets the criteria at (1)(c) of s 4.31. Pursuant to s 4.31(2)(c) of SEPP Precincts consent must not be granted to development unless the consent authority is of the opinion that the development exhibits design excellence. In considering whether development exhibits design excellence for the purposes of this Part, the consent authority must have regard to, among other matters, whether the development responds to the physical and cultural connection of the local Aboriginal community to the land: s 4.33(1)(a) of SEPP Precinct. Further, at s 4.33(2) the consent authority must also have regard to how the development addresses, among other matters, Aboriginal heritage.

32. Pursuant to s 4.39 development consent must not be granted to development on land to which a precinct plan applies unless the consent authority is satisfied that the development is consistent with the precinct plan.

Western Sydney Aerotropolis Precinct Plan

33. The Precinct Plan includes the following relevant objectives:

“01 ‘Start with Country’ by promoting access to Country and designing the Aerotropolis through a process that includes Aboriginal people.

02 Celebrate culture by reflecting the cultural landscape and continuous connection of Aboriginal people and Country through: a. the design of the public domain; b. preservation and rehabilitation of the natural environment and systems; c. the alignment of movement networks with culturally significant spaces; d. the design of buildings; and e. keeping language alive in the naming of places.”

…

34. At Part 1.3 the Precinct Plan states that a consent authority will determine if a development application is consistent with the Precinct Plan based on an assessment of compliance with the requirements, and with reference to the relevant objectives. The Precinct Plan further acknowledges that some requirements of Precinct Plan provide flexibility for development applications to demonstrate that objectives and requirements can be achieved through alternative design solutions that achieves the same intent.

35. The site is within the Agribusiness Precinct under the Precinct Plan. The Agribusiness Precinct has the following additional objectives:

01 Enable fresh and value-added food production with access to local and global markets, and support Australia’s value-added agribusiness export industries.

02 Enable agricultural value-added industries and related freight and logistics facilities with access to the Outer Sydney Orbital and air-side access to the Western Sydney Airport.

03 Encourage education opportunities related to agriculture and agribusiness.

04 Preserve and enhance significant landscaped vistas within and from the Precinct towards the Blue Mountains and along Cosgroves Creek.

05 Promote the role of water as a resource for agricultural production and its contribution to a healthy urban and natural environment.

36. As stated at [16] the site is nominated for agribusiness use in the proposed land use and structure plan in the Precinct Plan and is zoned Argibusiness.

37. Part 4.3 ‘Aboriginal Culture and Heritage – Recognising Country’ has the following relevant objectives and controls:

Objectives

RCO1 Facilitate the conservation of Aboriginal heritage items and areas of cultural heritage significance in accordance with the requirements of the National Parks and Wildlife Act 1974.

RCO2 Protect areas of high cultural sensitivity.

RCO3 Ensure development is designed to care for and connect to Country.

Controls

RC1 Development applications are to retain access to and connect significant Aboriginal heritage and areas of cultural value, conservation corridors and other identified areas of significant Aboriginal heritage.

RC2 Development applications that propose disturbance to the landscape in areas of moderate, high or very high Aboriginal sensitivity on Figure 4, or include known Aboriginal cultural or archaeological sites, are required to include an assessment of impacts on archaeological and or cultural heritage values and significance. Where specific measures are required to mitigate or avoid impacts, applications are to include a cultural heritage management plan or conservation management plan prior to the issue of a construction certificate.

…

RC4 Interpretation and story-telling required to inform impact assessments, mitigation measures and management plans are to be undertaken in consultation with, and walking on Country with, the traditional custodians and Local Aboriginal Land Councils (LALCs).

38. Figure 4 of the Precinct Plan nominates part of the site as being within an area of moderate Aboriginal cultural sensitivity.

Western Sydney Aerotropolis Development Control Plan

39. Part 2.1 ‘Recognise Country’ in the Aerotropolis DCP applies to the Concept DA and Stage 1 DA as they are applications to which the Design Excellence provisions of the Precinct Plan apply.

40. The Aerotropolis DCP in Part 2.1.1 ‘Starting with Country’ states that the controls and objectives are to be read in conjunction with the Recognise Country Guidelines. These Recognise Country Guidelines are discussed below at [44].

41. The Aerotropolis DCP contains objectives, performance outcomes and benchmark solutions. For the purposes of s 4.15(3A) of the EPA Act, the benchmark solutions are the standards. The performance outcomes in the Aerotropolis DCP and the objectives of those standards.

42. Part 2.1.2 Engagement has the following relevant performance outcomes and controls:

         Connecting to culture and Country through Subdivision and Civil Works

Performance Outcome 01

PO1 The cultural values and heritage, waterways and landscapes of Country form a key structuring element of development. Development retains and connects and provides access to landscape elements including ridgelines, waterways and native vegetation.

Benchmark Solution

1. For development where the Recognise Country Guidelines apply and in conjunction with Aboriginal heritage assessment requirements, cultural values research is to be undertaken by a qualified Aboriginal heritage consultant (with experience in Aboriginal heritage and cultural values research). Cultural values research must be undertaken in consultation with Traditional Custodians (including through an on-site review). Cultural values research must identify within the proposed development site and any adjoining areas:

a. cultural values and heritage significance, particularly within moderate to high areas of Aboriginal heritage sensitivity;

b. significant cultural landscape elements, as they relate to cultural values; and

c. significant waterways or bodies and areas of surrounding riparian vegetation as they relate to cultural values.

2. Development proposals must outline how findings of the cultural values research have informed the planning and design, including the spatial layout of the site and the public domain, including areas used for open space, stormwater management and or biodiversity conservation and outline any potential impacts and mitigation measures.

3. Development is to respect and respond to:

a. Identified significant sites, places, views, traditional movement corridors and narratives of Country;

b. The natural landscape, including topography and native vegetation by providing clear and legible links (within the road network and public domain) between ridgetops and creek lines and retaining native vegetation clusters and corridors through the siting of buildings; and

c. Natural systems, including significant tributaries and waterways in the Wianamatta-South Creek catchment by avoiding significant impacts to ecological condition and the function of ecosystems as well as protect and restore native riparian vegetation.

4. Development proposal design must ensure water management infrastructure and processes are responsive to Country and prioritise natural solutions that enhance the overall waterway systems condition, function and connections.

…

Performance Outcome 03

PO3 Development is guided and informed by Aboriginal people and their cultural knowledge and practice of caring for Country.

Benchmark Solution

1. Where relevant, development is designed to enable Aboriginal people to continue to care for Country through the integration of traditional knowledge into environmental assessments and management plans (e.g. floodplain management and bushfire hazard management).

2. Development proposals must demonstrate that the design has been informed by engagement with Traditional Custodians (and Knowledge Holders where appropriate) and incorporates cultural practice requirements and their aspirations for associated enterprise and economic development.

3. Development proposals must outline how cultural knowledge has been integrated into environmental assessment and management strategies, and should consider opportunities for ongoing land management and enterprise and economic development.

Connecting to culture and Country through the Built Form

Performance Outcome 04

PO4 Aboriginal culture is celebrated and embedded within building design.

Benchmark Solution

1. For development where the Guidelines apply or that is located within or intersects areas identified as having moderate to high Aboriginal heritage sensitivity in the Aerotropolis Precinct Plan, culturally sensitive design must be incorporated.

2. Development proposals must outline how cultural values research and engagement with Traditional Custodians (and Knowledge Holders where appropriate) have informed the design outcomes. Where previous cultural values research (including overarching master plans and neighbouring sites) has been undertaken, the development proposal is to respond to the findings.

…

Performance Outcome 06

PO6 Cultural narratives are embedded in public art.

Benchmark Solution

1.Public art should respond to culture and Country, particularly within identified areas of significant Aboriginal heritage and value.

2. Where a development proposal has identified the opportunity to deliver public art that is responsive to culture and Country, an Aboriginal person with a connection to Western Sydney is to be engaged to: a. Provide input into the preparation of the public art brief, and b. Contribute to the design of the public art.

Language and naming

Performance Outcome 07

PO7 Place names incorporate local Aboriginal language to enhance and strengthen the cultural connection to place.

Benchmark Solution

1. Where an existing geographical feature or public place already has a non-Aboriginal name, dual naming with the Aboriginal name, should be assigned where appropriate.

2. New development including suburbs, public spaces, places, roads or administrative areas should give preference to the use of local Aboriginal language for naming purposes.

3. For Aboriginal naming and dual naming, the proponent is required to consult with the NSW Geographical Names Board, Traditional Custodians, local language subject matter experts (and Knowledge Holders where appropriate) (Section 2.1.2 of the Guideline).

4. The proponent is required to seek a statement from Traditional Custodians (and Knowledge Holders where appropriate) in the selection and use of local traditional language.

Performance Outcome 08

PO8 Wayfinding signage incorporates Aboriginal language, knowledge and art to enhance and strengthen the cultural connection to place.

Benchmark Solution

1. Wayfinding signage for development proposals is to be informed by cultural values research and engagement with Traditional Custodians (and Knowledge Holders where appropriate).

2. Wayfinding signage is to consider the inclusion of elements that reflect the history and pronunciation of the associated Aboriginal name(s) in the wayfinding strategy.

3. The proponent is required to seek a statement from Traditional Custodians (and Knowledge Holders where appropriate) in the selection and use of local traditional language.

43. Part 2.2.1 Aboriginal Cultural Heritage has the following relevant performance outcomes and controls:

Performance Outcome 01

PO1: New development adjacent to or within the vicinity of an item or place of Aboriginal heritage significance or cultural value should not impact on that item, or place.

Development is to consider visual and physical connections between items and places.

Benchmark Solution

1. New development is appropriately sited to ensure that the curtilage or setting of the Aboriginal item or place of cultural value is retained.

2. The development must consider surrounding landscaping, topography, views and connection with other Aboriginal sites. Possible uses for sites with identified Aboriginal heritage include passive open space, environmental conservation, and riparian corridors.

…

Performance Outcome 03

PO3: The archaeological potential of sites is to be determined as part of detailed site investigations.

Aboriginal archaeological sites are conserved, and significant archaeological remains are protected and interpreted.

Benchmark Solution

1. Any land with the potential to contain archaeological remains is to be subject to detailed investigations and assessment to determine the level of archaeological intervention required. Intervention may include the following:

a. Unexpected finds procedure;

b. Monitoring during works; or

c. Formal salvage excavation.

Recognise Country: guidelines for development in the Aerotropolis

44. The Recognise Country Guidelines are a mandatory matter for consideration pursuant to s 4.26B of SEPP Precincts. The Recognise Country Guidelines apply to the Concept DA and Stage 1 DA applications as they are progressing under the design excellence process: Section 1.2 of the Recognise Country Guidelines.

45. Table 3 of the Recognise Country Guidelines details the documentation requirements for different types of development applications. That table is extracted below:

46. By reference to table 3, the Recognise Country Guidelines do not have any specified ‘required documents’ for development applications that are required to apply the Recognise Country Guidelines due to progressing under the design excellence process.

47. At 1.2.4, the Recognise Country Guidelines detail the stages of the approval pathway process that the Recognise Country Guidelines are to be applied. For Development Applications such as the Concept DA and the Stage 1 DA, the relevant flow chart is extracted below:

48. The Recognise Country Guidelines contain four main guidelines, they are:

2.1 Starting with Country

2.2 Cultural Landscape

2.3 Built form; and

2.4 Language and naming.

49. The first three guidelines are the most relevant to the evidence and the issues in dispute between the parties.

50. In their submissions, the Respondent argues that the Concept DA and Stage 1 DA applications are inconsistent with the Recognise Country Guidelines in both form and process and as such the Court would not grant consent to either application. Mr Jucha reasons:

“That the spatial layout of the proposed development, in particular the building envelopes and heights are critical to the potential impacts of the development. The nature and extent of those impacts, and what might be done to mitigate those impacts, remains an open and unanswered question – contrary to the requirements to Start with Country and Recognise Country – meaning the development is not consistent with the overarching objective of the Precinct Plan, and does not adhere to the Recognise Country Guidelines, such that a Court would not (and must not) grant consent.”

Reports and assessments with the development applications

51. Both development applications are accompanied by a Due Diligence Aboriginal Archaeological Assessment prepared by AMAC Archaeological in November 2023 (Due Diligence Report).

52. The Due Diligence Report confirms that the AHIMS database has eight records within a 1 km radius of the site. These records are assessed and documented in the report. AHIMS Site 45-5-4783, located within the site of the proposed development, is described as:

“This site is located within Lot 2 DP 827223 and Lot 31 DO 563121, 100m north of the Northern Road and Park Road intersection. The site was recorded by Kelleher Nightingale Consulting and refers to the Aboriginal Archaeological Survey Report (KNC 2016) however it was not included because it was outside the impact areas. A single artefact was identified in the form of a silicified tuff medial flake fragment with a 15m x 15m area of sheet erosion near and access track”.

53. The Due Diligence Report completed further research in the Heritage NSW library of relevant consultants reports and then applied a predictive model and relevant disturbance factors to seek to determine the potential for unrecorded or subsurface Aboriginal cultural deposits or materials on the site. A site inspection was also undertaken in the presence of two representatives of the Gandangara Local Aboriginal Land Council.

54. The Due Diligence Report includes the following findings:

• The proposed development will require excavation ranging from major to minor which will primarily impact ground surfaces and subsoils. Therefore, there is a potential to harm any objects and/or deposits of Aboriginal cultural significance that may be present.

• The presence of Cosgrove Creek on the study site, and the land within 200m of it, are landscape features which are likely to indicate the presence of Aboriginal objects.

• There is a low-moderate potential for Aboriginal artefacts and/or deposits of archaeological and cultural significance to be present on the site.

55. The Due Diligence Report recommended that further archaeological and cultural assessment be undertaken (including full Aboriginal community consultation) along with test excavations.

56. The Applicant embraced these recommendations, and a draft Aboriginal Cultural Heritage Assessment Report (draft ACHAR) was prepared along with a Technical Report which detailed the results of the test excavations undertaken on the site. These two reports address two components of the assessment of significance of the site, the Technical Report revealed no Aboriginal archaeological deposits or objects of significance, whereas the draft ACHAR assessed the social, cultural and aesthetic significance of the site. The draft ACHAR concluded that the site retains aesthetic, social and cultural significance to Aboriginal stakeholders. Further, the draft ACHAR concludes that as the AHIMS site 45-5-4783 remains a valid site, an Aboriginal Heritage Impact Permit (AHIP) would be required as the development will result in the site being destroyed.

57. In terms of the identified Aboriginal cultural values of the site the draft ACHAR states:

“The study area was determined to hold social, cultural and aesthetic significance to stakeholders, as determined through consultation, a site survey and Walk on Country workshop, The area was known to have a long history of use – up until modern day. The nearby Mulgoa Road and association with travel and songlines further strengthens the significance of the place. Traditional knowledge remains for this area and stakeholders requested further consultation in the future development process. Traditional names, artworks and plants were some of the elements which could be included in the project”.

58. At 8.3 the draft ACHAR assesses the impact of the proposed development to Aboriginal heritage values. That assessment can be summarised as follows:

Aesthetic

• The development will have a direct impact on site views and resources present.

• The degree of harm from the impact may be reduced from total to partial harm with design considerations.

Historic

• The development will have an indirect impact on intangible values present on the site,

• The viewing of distinctive features of landscape enabled stakeholders to discuss past land management practices, land use and connections to the area. By having these landscape features less visible, individuals may not make and association with past practices.

• The impacts of the development can be mitigated through the use of signage and sharing of knowledge.

Scientific

• The development will have surface and subsurface impacts. No artefacts were identified during the test excavations.

• AHIMS Site 45-5-4783 is proposed for community collection through the AHIP process.

Social

• The development will indirectly impact intangible values present on the site.

• Social significance is remembered by stakeholders through connection to land use practices and features.

• Impacts to the site may be reduced through altering project designs.

59. The draft ACHAR makes the following statement of the impact of the proposed development (the Concept DA and Stage 1 DA) to Aboriginal Cultural heritage [emphasis added]:

“No archaeological deposits or objects were identified during surveying and test excavation, however one previously registered site, AHIMS Site 45-5-4783 remains listed as valid and Aboriginal cultural values are noted in association with the aesthetic, historic and social elements of the project area. The study site is part of a wider landscape that has been well travelled and occupied by both Dharug and Gundungarra peoples. The current landscape will be impacted by the development. Impacts may be reduced through measures such as altering designs to consider views, waterways and vegetation. The project designs should continue to be discussed with Aboriginal stakeholders to inform the final design. An opportunity for community collection should also be made available in regard to AHIMS site 45-5-4783. Subsequent to this action the site will be removed from the AHIMS register.”

60. Further, the Concept DA and Stage 1 DA applications are accompanied by a draft Recognise Country Response Template (RC Template) that records and outlines the process and outcomes in responding to the Recognise Country Guidelines.

61. The RC Template includes details of:

• The walk on Country that was conducted on 18 April 2024, including a list of participants and invitees.

• The cultural values research that has been undertaken and the outcomes of that research.

• The overall engagement activities that have been undertaken.

62. The cultural values documented in the RC Template include the AHIMS site, a significant view line from the site to the Blue Mountains, the importance of the tributaries to Cosgrove Creek as a resource, traditional fire stick pathways and songlines in and around the study area and the importance of caring for Country being addressed in the landscape design, naming convention and artwork for the site.

63. The RC Template also includes a response to each of the relevant performance outcomes from Part 2.1.2 of the Aerotropolis DCP. This section of the RC Template appears to fail to recognise that the Concept DA and Stage 1 DA seek approval for built form envelopes for each of the proposed lots where agribusiness use is proposed. Whilst it is true that no buildings are proposed in either the Concept DA or Stage 1 DA, these being delivered in Stages 2-4, the approval of the building envelopes, setbacks etc in the Concept DA and the construction of the internal roads in Stage 1 in effect delineate the development form of the site. Further, the effect of s 4.24(2) of the EPA Act is that the development of the site under future development applications must be consistent with the Concept DA. The RC Template includes comments which infer that further workshops, consultations and responses to the site’s cultural values and heritage in the design can and would occur following approval of the Concept DA and Stage 1 DA. Further, the RC Template notes that recommendations to address the cultural values identified will be addressed in a future report which is not an exhibit in these proceedings. For example, against performance outcome PO1 in the Part 2.1.2 of the Aerotropolis DCP the RC Template states:

“If the concept design is approved then workshops regarding detailed design should take place to incorporate Aboriginal cultural values into the design, construction and maintenance processes of the development.”

…

“Workshops should include a further walk in Country to allow participants to contribute to the proposed design in the context of the approved concept design”.

…

And

“Built form is not proposed at this stage and as such this section of the report cannot be completed at present however the Aboriginal Cultural Outcomes Report (April 2025) will offer recommendations to address this matter in the detailed design stage”.

64. The remaining discussion of performance objectives PO3- PO8 of Part 2.1.2 of the Aerotropolis DCP in the RC Template repeat a consistent comment that asserts, in similar terms to the proceeding, that built form is not proposed and therefore the response is deferred to a later time or responded to “where possible” in the design. It is unclear what is intended by these statements.

Experts

65. The Court was assisted by expert evidence on Aboriginal cultural heritage and recognise Country. Mr Benjamin Streat was the expert for the Applicant, and Mr Thomas Wheeler for the Respondent. The experts undertook joint conferencing and prepared a joint report which was tendered in evidence.

Expert evidence

66. The experts in Aboriginal cultural heritage prepared a single expert report covering the contentions in both proceeding, namely covering both the contentions relevant to the Concept DA and Stage 1 DA applications. Their report documents a number of agreed opinions. The agreements are summarised in the following paragraphs.

1. The Concept DA and Stage 1 DA applications are both integrated development applications pursuant to s 4.46 of the EPA Act as the Applicant requires a AHIP pursuant to s 90 of the NPWS Act to destroy or remove for community collection the relic onsite, AHIMS site 45-5-4783.

2. That s 44 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) applies to the Concept DA and Stage 1 DA applications. It states:

44   Notice of proposed consultations about Aboriginal heritage impact under National Parks and Wildlife Act 1974

(1)  If a development application relates to development that requires an Aboriginal heritage impact permit under the National Parks and Wildlife Act 1974, the Planning Secretary must notify the consent authority that Aboriginal community consultation is required under that Act.

(2)  Immediately after being notified by the Planning Secretary under this section, the consent authority must give notice to the applicant that—

(a)  specifies the number of days in the assessment period for the development application that have elapsed, and

(b) informs the applicant that the assessment period ceases to run, in accordance with Part 4, Division 4, during a period of Aboriginal community consultation required under the National Parks and Wildlife Act 1974.

3. That under s 4.15(b) of the EPA Act the consent authority is required to consider the impacts of the proposed development on Aboriginal cultural heritage and be satisfied that sufficient information has been submitted with the development applications to enable the assessment of those impacts.

4. That where Recognise Country controls apply to a Concept DA, or subdivision only development application, the Recognise Country Report should provide specific recommendations relating to lot layout, orientation, building footprint, landscaping, environmental protection and civil works.

5. Further, the experts agree that: ‘It is the responsibility of the architect, landscape architect, planner and engineer to incorporate the recommendations [of the Recognise Country Report] into the concept and subdivision design; as well as to develop the necessary covenants or site specific development control plan which would impose the design guidelines on future projects’.

6. Finally, the experts agreed that the requirement for recognition of Aboriginal knowledge and interpretation into development must be resolved at the time of the development application and cannot be deferred post consent.

67. Responsive to the above agreements I note that neither the Concept DA nor the Stage 1 DA application has received concurrence from Heritage NSW. Further, in closing submissions the Respondent confirmed that the Council has not referred either development application to Heritage NSW for concurrence, or to the Planning Secretary (the Secretary of the Department of Planning and Environment) pursuant to s 44 of the EPA Regulation, as the documents contained in the applications were submitted in draft form.

68. The experts however disagree on the following broad issues:

Aboriginal Cultural Heritage

1. Whether adequate consultation with Registered Aboriginal Parties has occurred both in response to the requirements of the Aerotropolis DCP and as part of the ACHAR,

2. Whether the level of comparative assessment of previous archaeological reports and predictive models in the vicinity of the site is adequate to support the impact assessment, scientific values assessment and significance assessment in the ACHAR,

3. Whether the review of existing knowledge and background information in the ACHAR regarding the level of historic site disturbance is sufficient to support the finding that:

1. The site is disturbed because of land clearing,

2. The site is heavily disturbed around the area of the dam and dwelling/rural shed.

4. Whether the test excavation methodology, sampling strategy and the density of test pits was appropriate and sufficient to support the conclusions in the ACHAR.

Recognise Country

5. What documentation is required to accompany the development applications in response to Recognise Country Guidelines and whether that document has been provided.

6. The relevance of the fact that consultation and engagement (including a walk on Country) by the Applicant, and their consultants, with Aboriginal stakeholders occurred after the lodgement of the Concept DA and Stage 1 DA.

7. Whether it is appropriate for the Recognise Country response to be the same for both the Concept DA and Stage 1 DA.

8. Whether the Concept DA and Stage 1 DA are responsive the consultation and engagement with Aboriginal stakeholders, the findings of the draft ACHAR and the nomination of part of the site as being of Moderate Aboriginal sensitivity in the Precinct Plan.

69. Further to the above disagreements Mr Streat addressed the criticisms of Mr Wheeler about the draft ACHAR report. He argues that the level of scrutiny that the draft ACHAR report has undergone is “at a level that usually exceeds the issue of an AHIP”. Further, that Mr Wheeler’s request for greater detail and a broader review of archaeological reports disregards the principle that the level of analysis undertaken should reflect the complexity of the archaeological resources. Mr Streat argues that in this case the Aboriginal archaeological resource is quite simple, so this component of the draft ACHAR is appropriately minimal. Mr Streat applies the same reasoning to respond to Mr Wheeler’s criticisms of Section 5 ‘Aboriginal Consultation’ and Section 6 ‘Investigation of Aboriginal Heritage’ of the draft ACHAR.

70. Mr Wheeler’s principal criticism of the Concept DA and Stage 1 DA is that the Applicant has failed to submit a complete and final ACHAR that considers the tangible and intangible Aboriginal cultural heritage of the site. He argues that this failure means that the Court, as consent authority, is precluded from undertaking an adequate assessment of the potential impacts of the proposed development on heritage. Further, he argues that the approval of the Concept DA will prevent the applicant from considering design solutions that may address issues such as view corridors, songlines or other tangible and intangible Aboriginal cultural heritage as they relate to the site in the future. Finally, he argues that the failure to submit a final ACHAR means that the required consultation process is incomplete.

71. Mr Wheeler’s secondary criticism relates to the extent of review, analysis and detail in the draft ACHAR. In particular, he criticises the depth of research supporting the predictive model developed, the conclusions drawn about the level of disturbance of the site and the depth and intent of the archaeological field survey undertaken.

Findings

72. In undertaking an assessment of the Concept DA and Stage 1 DA under s 4.15 of the EPA Act I have taken into consideration the impacts arising from the development on Aboriginal cultural heritage, the conformity of the development with the planning controls in SEPP Precincts, the Precinct Plan and the Aerotropolis DCP. I have balanced these impacts against the potential positive benefits arising from the use of the land for employment/ economic development purposes associated with the proposed logistics and industrial use of the site. Having undertaken this assessment, I find that the Concept DA and Stage 1 DA both warrant refusal for the five key reasons. I discuss these reasons in the following paragraphs, but they can be summarised as:

1. The applications have insufficient and incomplete information to determine the likely impacts: I accept and prefer the evidence of Mr Wheeler, summarised at [70-71] that the draft ACHAR, the RC Template and consultation undertaken with traditional custodians, elders and Local Aboriginal Land Councils are incomplete and insufficient. I adopt his evidence and conclusions. I am not persuaded by Mr Streat’s evidence that the level of investigation, research and analysis in the development application is sufficient. A lack of finality in the identification of the Aboriginal cultural heritage values or significance of the site means that any assessment of the impacts arising from the development on those values cannot be undertaken.

2. The insufficiency detailed in (1) is not cured by the Applicant’s conditions of consent: Consistent with the principle established in Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-276; Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at [93]-[94], I find that the preceding insufficiency of investigation, research and analysis and completion of consultation are matters that cannot be deferred for determination post consent.

3. Integrated development: I accept the evidence of the Aboriginal cultural heritage experts that the Concept DA and Stage 1 DA are integrated development applications pursuant to ss 4.46(1) and (2)(a) of the EPA Act as the Applicant requires an approval pursuant to s 90 of the NPWS Act for an Aboriginal object on the land to which the development relates. Concurrence has not been received. Given the remaining reasons detailed in these findings I am not persuaded to exercise the discretion to determine the appeal by the grant of consent in the absence of concurrence.

4. Recognise Country Guidelines: s 4.28B of the Precincts SEPP requires a consent authority to consider the Recognise Country Guidelines. In giving these guidelines consideration, I find that the Concept DA is inconsistent with guideline 2.1 ‘Starting with Country’; 2.2 ‘Cultural Landscape’ and 2.3 “Built form’. This finding of inconsistency lends weight to a determination of the refusal of the Concept DA. The same reasoning and findings apply to the Stage 1 DA.

5. Inconsistent with the Precinct Plan: Pursuant to s 4.39 of the Precincts SEPP development consent must not be granted to development on land to which a precinct plan applies unless the consent authority is satisfied that the development is consistent with the precinct plan. I find that control RC 2 and RC 4 in Part 4 of the Precinct Plan are not met and that the Concept DA and Stage 1 DA do not propose reasonable alternative solutions that meet the objectives of the controls. I find that the Stage 1 DA the Concept DA are inconsistent with the Precinct Plan and development consent must be refused.

Insufficient information

73. I accept and prefer the evidence of Mr Wheeler, summarised at [70-71] that the draft ACHAR, the RC Template and consultation undertaken with traditional custodians, elders and Local Aboriginal Land Councils are incomplete and insufficient. I adopt his evidence and conclusions. I am not persuaded by Mr Streat’s evidence that the level of investigation, research and analysis in the development application is sufficient. This is for three reasons.

74. Firstly, as detailed at [58]-[59] and [91], the draft ACHAR and RC template are predicated on an approach that asserts that the impacts on Aboriginal cultural heritage can, and should be, further mitigated by alteration of the subdivision and building design post consent. For the reasons detailed at [63] in my view this is incorrect as the Concept DA details the building envelopes, subdivision and road layouts of the site, in effect delineating the bounds of future development on the site. Section 4.24(2) of the EPA Act mandates that future development applications must be consistent with the Concept DA. Both matters constrain the potential for any substantive or meaningful alteration of the subdivision and building design post consent. The inference in the Applicant’s documentation of the Aboriginal cultural heritage of the site that a response to the tangible and intangible heritage values can be deferred post consent is in my view inappropriate. Further, the Stage 1 DA seeks consent bulk earthworks and the construction of internal roads which further constrain the potential for any substantive or meaningful alteration of the subdivision and building design post consent.

75. Secondly, I am not persuaded that the draft ACHAR identifies, analyses and documents the cultural values of the site in sufficient detail to allow an assessment of the impacts arising from the development on those values and their significance. Consistent with these findings I accept the agreements of the Aboriginal cultural heritage experts that:

1. Where Recognise Country controls apply to a Concept DA, or subdivision only development application, the RC Template should provide specific recommendations relating to lot layout, orientation, building footprint, landscaping, environmental protection and civil works.

2. It is the responsibility of the architect, landscape architect, planner and engineer to incorporate the recommendations RC Template into the concept and subdivision design; as well as to develop the necessary covenants or site specific development control plan which would impose the design guidelines on future projects.

3. The requirement for recognition of Aboriginal knowledge and interpretation into development must be resolved at the time of the development application and cannot be deferred post consent.

76. Thirdly, the Applicant’s Class 1 Application for the Concept DA includes architectural plans dated November 2023. These plans pre-date the draft ACHAR. I note that leave was granted for amendments to both the Concept DA and Stage 1 DA following the receipt of the expert reports in May 2025 (Updated Plans). Despite the recommendations of the draft ACHAR, summarised at [58-59], the Updated Plans dated 23 May 2025 exhibit only minor changes to the proposed lot layout and the building envelopes proposed for the site. It is unclear on the evidence whether the recommendations of the draft ACHAR are reflected in these changes or not. Further, the Updated Plans include a nomination of dominant view lines across the site, but there are no evident amendments to subdivision, building envelopes or road layout that is responsive to this new site analysis and/or the discussion in the draft ACHAR and the RC Template of the potential Aboriginal cultural heritage values arising from views from and across the site. The same observations, reasoning and findings apply to a comparison of the Stage 1 DA.

77. I find that there is currently insufficient information in the Concept DA application and Stage 1 DA to understand the likely impacts of the works proposed as:

1. The consultation process to inform the understanding of the sites Aboriginal cultural heritage values is not complete,

2. The draft ACHAR identifies that changes should be made to the design to mitigate the impact on the draft cultural values identified, see [58]-[59]. The draft ACHAR does not draw a conclusion on the extent of impact on the site Aboriginal cultural values arising from the proposal in the absence of the implementation of the recommendations contained within the draft ACHAR.

3. I accept the evidence of Mr Wheeler that the predictive model in the draft ACHAR is insufficient for the reasons detailed in his evidence.

4. It is unclear what the final cultural values of the site are; and whether therefore the impacts of the development on those values are acceptable.

78. The site of the proposed development under the Concept DA and the Stage 1 DA is, in part, mapped as being of moderate Aboriginal Cultural sensitivity. The development applications propose significant excavation, civil works and site disturbance. I note that the Civil Engineering Plans accompanying the Concept DA indicate that the totality of the site will be subject to landform changes through either cut and/ or fill. Further, I accept the agreement of the heritage experts that the Concept DA the Applicant requires a AHIP pursuant to s 90 of the NPWS Act to destroy or remove for community collection the relic onsite, AHIMS site 45-5-4783. Each of these factors make the determination of the impacts of the proposed development under the Concept DA and the Stage 1 DA on Aboriginal cultural heritage a relevant matter in determining the merit of the applications.

79. When those impacts to Aboriginal cultural heritage are known and quantified, they are required to be evaluated against the other matters for consideration at s 4.15(1) of the EPA Act, including the zoning of the land for Agribusiness and the strategic intent of the land for employment and industry purposes. It may be the case that the impacts can be avoided, minimised or mitigated to the extent that they are acceptable through amendments to the site planning, building envelopes or the like. However, to make a determination in the absence of further information would be to grant approval to works whose impacts on Aboriginal cultural heritage are unknown. Such a determination would be contrary to s 4.15(1)(b) of the EPA Act, which requires the consent authority to consider the “likely impacts of the development”. As held by Preston CJ in Ballina Shire Council v Palm Lake Works [2020] NSWLEC 41 at [38] to undertake an evaluation of the likely impact of the proposed development, it is necessary to understand those impacts. In the circumstances of this case, there is insufficient information to determine those impacts.

80. I find that the Concept DA and Stage 1 DA should be refused for the reason that the impacts of the development are unclear and uncertain due insufficient and incomplete information about the Aboriginal cultural heritage of the site. I find that the Court as consent authority is not in a position to undertake the mandatory consideration of the effect of the development proposed in the Concept DA and Stage 1 DA on the Aboriginal place or object as required by s 4.26(9)(a) of SEPP Precincts.

Applicant’s conditions of consent.

81. The Applicant proposes the following conditions to be imposed on the Concept DA application. The applicant (at proposed condition 6) seeks to impose a condition that excludes the operation of these conditions to the Stage 1 DA:

…

Part C: Conditions to be satisfied in future development applications

…

Recognise Country

12. Any future development application is required to respond and incorporate recommendations, unless otherwise justified, within the report XXX in line with Clause 4.28b of SEPP WPC.

13. The application must provide revised landscape drawings demonstrating how the Recognise Country requirements are being met in respect to identified design outcomes that translate into the landscape design.

14. Development Application must demonstrate the requirements of Recognise Country are being achieved within the design including respect of any identified views or landscapes, unless otherwise justified.

15. Development Application must provide photomontages demonstrating how proposed built form will respect and preserve any identified view corridors, unless otherwise justified.

(Exhibit G)

82. The effect of the preceding conditions is twofold. Firstly, that it defers for later consideration components of the assessment and determination process of the Concept DA, that being the determination of whether the requirements of the Precinct Plan at RC 2 and RC4, extracted at [37], are achieved in the design of the development until after the grant of consent (Condition 13).

83. Additionally, the terms of consent proposed by the Applicant for the Concept DA, at Condition 12, seeks to defer the response of the development to the Recognise Country Guidelines, a matter of which the consent authority must be satisfied prior to consent: s 4.28B of SEPP Precincts.

84. Secondly, the Applicant’s proposed conditions introduce impermissible uncertainty. The proposed conditions do this by requiring the future stages of the development of the site to be amended (for example in proposed condition 15 by being required to ‘respect and preserved any identified view corridors’) when the Concept DA has approved built form envelopes that occupy the totality of the identified view corridor on Lot 1. Section 4.24(2) of the EPA Act requires the Stage 1 DA, and future development applications, to be consistent with the Concept DA.

85. The Concept DA proposes building envelopes (height and footprint) for the three main lots proposed for agribusiness (logistics hub) use. In the Concept DA, Stage 2 of the development proposes a large building envelope for Lot 1 which has a length of some 130m, of a lot frontage of some 187m. Further, the architectural plans proposed for approval in the Concept DA have a nominated view corridor indicated on the site. This identified view corridor is nominated on the architectural plans in both the Concept DA and the Stage 1 DA. It is shown broadly running from Willmington Road towards Cosgrove Creek, and is clearly obstructed by the proposed building envelope on lot 1 with proposed built form in Stage 2. However, condition 15 implies that future built form, beyond Stage 1, must demonstrate how the proposed built form will respect and preserve any identified view corridors. These matters are in conflict. Such conflict should be resolved and determined in the assessment and determination of the Concept DA.

86. I find that the Applicant’s proposed conditions of consent are inappropriate as they are uncertain and do not relieve the consent authority from the obligation to take into consideration all matters of relevance to the development the subject of the development application under s 4.15(1) of the EPA Act: Cameron v Nambucca Shire Council at 275-276; Weal v Bathurst City Council at [93]-[94].

Integrated development

87. Both the Concept DA and Stage 1 DA are integrated development pursuant to ss 4.46(1) and (2)(a) of the EPA Act as the Applicant requires an approval pursuant to s 90 of the NPWS Act for AHIMS 45-4-4783. Concurrence has not been received.

88. Pursuant to s 39(2) of the Land and Environment Court Act 1979 (NSW), the Court, as consent authority, has all the functions and discretions of the concurrence authority and may determine the appeal whether or not consultation has occurred, or concurrence has been given. For the reasons detailed in my findings that support the refusal of consent I am not persuaded that it is appropriate to exercise that discretion in this matter, in particular where there is insufficient information in the development application to understand the likely impacts of the works on the cultural values of the site and their significance.

Recognise Country Guidelines

89. The Recognise Country Guidelines apply to the Concept DA and the Stage 1 DA as they are progressing under the design excellence process in the Precinct Plan. I accept the submission of Mr Galasso that there is no specific documentation requirements listed in Table 3 of the Recognise Country Guidelines for DA’s that are progressing under the design excellence process. However, in my view, that does not mean that the Recognise Country Guidelines themselves, or the process detailed for development applications, does not apply. A key part of that process is the consideration by the consent authority the Recognise Country elements proposed by the proponent in the development application that is being assessed. This finding is supported by the Aerotropolis DCP which at 2.1.1 ‘Starting with Country’ confirms that for development progressing under the design excellence process, the performance outcomes and benchmark solutions detailed in Part 2.1 of the Aerotropolis DCP are to be read in conjunction with the Recognise Country Guidelines.

90. In my view, it is less of a concern that the Applicant implemented the process detailed in the Recognise Country Guidelines, including the Walk on Country, after the lodgement of the development applications as the hearing of an appeal against a deemed or an actual refusal of a development application is a hearing de novo. The Court re-exercises the function of the consent authority under s 4.16 of the EPA Act to determine the development application. In determining the development application, the Court is required to take into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the development application. The Court must determine for itself whether to grant or to refuse consent to the development application: Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22 at [11].

91. However, the critical matter in my view is that firstly, the evolution of the form, extent and design of the development for which consent is sought in the Concept DA and the Stage 1 DA does not evidence any influence arising from the implementation of the process detailed in the Recognise Country Guidelines. Secondly, it is not evident in the development applications how they respond to, or provide a reasonable alternative solution that achieves, the objectives of the controls. No such argument is made. It may be argued that the exception to this finding is the adoption in the Concept DA of a Public Art Strategy (implemented also in the Stage 1 DA) that applies imagery to the external facades to parts of the proposed buildings. However, this public art strategy is not intended by the Applicant to be responsive to any cultural values detailed in the ACHAR. Further, a proposal to adopt a naming convention for the new roads within the proposed subdivision that is influenced by local Aboriginal culture is not the intent, for example, of the benchmark solution for Performance Objective 01 at 2.1.1 ‘Starting with Country’ in the Aerotropolis DCP for the planning and design of the site to be informed by the research and understanding of the sites cultural values.

92. The Recognise Country Guidelines require proponents to ensure that all planning and design for a project starts with Country. The Respondent argues that the Concept DA and the Stage 1 DA are inconsistent with the Recognise Country Guidelines in two ways. Firstly, they argue the Applicant has failed to design staring with Country and in effect the Applicant has ‘back filled’ the process of consultation with Aboriginal people, undertaking a Walk on Country, after the lodgement of the development application. Secondly, they argue that even if it is accepted that the consultation and Walk on Country are acceptable, there is no evidence that the understanding of Country arising from those processes has affected the design of either the Concept DA and the Stage 1 DA or the assessment of the impacts arising from these developments. Mr Jucha submits that without the conclusion of the process of consultation and understanding of Country any impacts can’t be determined, assessed and weighed in the determination of the development application.

93. As detailed in these findings as a whole I accept that there is no evidence, or an ability to deduct from a review of the amendments to the proposal, that the understanding of Country arising from the application of the Recognise Country Guidelines has affected the design of either the Concept DA and the Stage 1 DA. Further, I accept that without the conclusion of the process of consultation, any impacts on Aboriginal cultural heritage can't be determined, assessed and weighed in the determination of the development application.

94. The Cultural Landscape Guideline seeks to ensure that an assessment of cultural values and heritage of a site extends to both the tangible and intangible aspects of the place. The Recognise Country Guidelines emphasise the Applicant’s approach to assessing the site should not be limited to artefacts but embrace a broader understanding of cultural context, views, storylines that intersect with the site or its broader context. Further, the Cultural Landscape Guideline argues that once research and consultation is undertaken, and the cultural landscape of the site is understood that understanding should inform the spatial layout of proposed development of the site.

95. As noted at [73] I accept and prefer the evidence of Mr Wheeler, summarised at [70]-[71] that the draft ACHAR, the RC Template and consultation undertaken with traditional custodians, elders and Local Aboriginal Land Councils are incomplete and insufficient. As such the Concept DA and Stage 1 DA are inconsistent with the Cultural Landscape Guideline as the assessment is of the cultural values and heritage of the site incomplete. Concordantly, the spatial layout of the proposed development cannot be informed by a concluded understanding of the significance of the cultural landscape of the site.

96. The Built Form Guideline states that it is the responsibility of Applicant to ensure the design of the site as a whole, and the individual buildings, respond to Country and the cultural landscape. The guidelines emphasise the importance of this concept for developments that are proceeding through the design excellence process.

97. As noted at [75] I accept the agreement of the experts that where Recognise Country controls apply to a Concept DA, or subdivision only development application they should inform recommendations relating to lot layout, orientation, building footprint, landscaping, environmental protection and civil works for the development site. This is one approach to ensuring that the development proposed respond to Country and the cultural landscape. The Applicant has not taken this approach, nor proposed an alternative approach that is consistent with the Built Form Guideline in the Recognise Country Guidelines.

98. Section 4.28B of the Precincts SEPP requires a consent authority to consider the Recognise Country Guidelines. In giving these guidelines consideration, I find that the Concept DA is inconsistent with guideline 2.1 'Starting with Country'; 2.2 'Cultural Landscape' and 2.3 “Built form'. This finding of inconsistency lends weight to a determination of the refusal of the Concept DA and Stage 1 DA.

Inconsistent with the Precinct Plan

99. Pursuant to s 4.39 of the Precincts SEPP development consent must not be granted to development on land to which a precinct plan applies unless the consent authority is satisfied that the development is consistent with the precinct plan. I find that control RC 2 and RC4 in Part 4 of the Precinct Plan are not met, the Concept DA and Stage 1 DA are inconsistent with the Precinct Plan and development consent must be refused.

100. I accept the submission of Mr Galasso that in the hierarchy of planning instruments many of the objectives in relation to designing for Country, and Recognise Country are objectives that are met in the delivery of the plan and the strategic planning to which the instruments give effect. For example, the delineation of areas of the Aerotropolis as being of high and moderate Aboriginal Cultural sensitivity in Figure 4 of the Precinct Plan, and the controls in Part 4.3 ‘Aboriginal Culture and Heritage’, give effect to the overall objectives of the Precinct Plan. Namely, Objective 01 and Objective 02 which state:

O1   ‘Start with Country’ by promoting access to Country and designing the Aerotropolis through a process that includes Aboriginal people.

O2   Celebrate culture by reflecting the cultural landscape and continuous connection of Aboriginal people and Country through:

(a) the design of the public domain;

(b) preservation and rehabilitation of the natural environment and systems;

(c) the alignment of movement networks with culturally significant spaces;

(d) the design of the buildings; and

(e) keeping language alive in the naming of places.

101. That said, I accept the submission of Mr Jucha that the planning instruments, especially the Precinct Plan and the Aerotropolis DCP, both seek to reinforce connection to Country and require development to respond to the tangible and intangible cultural values of the site in the built form and landscape of the proposal and protect (or avoid, minimise or mitigate harm) to sites: see for example Part 4.3 Aboriginal Culture and Heritage’ of the Precinct Plan and 2.2.1 ‘Aboriginal Cultural Heritage’ of the Aerotropolis DCP.

102. Aboriginal culture and heritage as a concept encompass both the physical heritage artefacts, for example on this site the AHIMS site, as well as the cultural value that a site may have as part of the landscape and its role in intangible cultural heritage values such as stories, knowledge and practices associated with the land. The Precinct Plan explains the need to respond to both of these elements in the chapeau to Part 4.3, stating: ‘The Aerotropolis encompasses cultural landscapes, historical archaeological remains and places of Aboriginal cultural significance that are a basis of connecting the development of the land to Country’.

103. The objectives of RC 2 and RC4 of Part 4.3 of the Precinct Plan are:

RCO1    Facilitate the conservation of Aboriginal heritage items and areas of cultural heritage significance in accordance with the requirements of the National Parks and Wildlife Act 1974.

RCO2    Protect areas of high cultural significance.

RCO3   Ensure development is designed to care for and connect to Country.

104. I find that the Concept DA and the Stage 1 DA applications do not satisfy two specific requirements of the Precinct plan, those being at RC 2 and RC4 of Part 4.3. Those provisions require:

…

RC 2 Development applications that propose disturbance to the landscape in areas of moderate, high or very Aboriginal sensitivity on Figure 4, or include known Aboriginal culture or archaeological sites, are required to include an assessment of impacts on archaeological and or cultural heritage values and significance. Where specific measures are required to mitigate or avoid impacts, application are to include a cultural heritage management plan or conservation management plan prior to the issue of a construction certificate.

…

RC 4 Interpretation and storytelling required to inform impact assessments, mitigation measures and management plans are to be undertaken in consultation with, and walking on Country with, the traditional custodians and Local Aboriginal Land Councils (LALCs).

105. Control RC 2 applies to the site as the Concept DA and the Stage 1 DA propose disturbance to the landscape on a site mapped as an area of moderate Aboriginal sensitivity on Figure 4 of the Precinct Plan. For the reasons detailed above, I find that the Concept DA and the Stage 1 DA provide insufficient information to undertake an assessment of the impacts arising from the development on archaeological and or cultural heritage values of the site and their significance. Control RC 2 is not met.

106. I find that Control RC 4 is not met in circumstances where I have made findings that the draft ACHAR, the RC Template and consultation undertaken with traditional custodians, elders and Local Aboriginal Land Councils are incomplete and insufficient.

107. I am satisfied that these provisions are not met, and that the development application does not propose a reasonable alternative solution that achieves the objects of these standards seeking to address Aboriginal culture and heritage. Controls RC 2 and RC 4 are plainly not met in circumstances where the identification of significance is not concluded, impact assessment is not complete, and consultation has not been finalised.

108. The preceding findings are consistent with the conclusions of Dixon SC and Sullivan AC in Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure & Anor; Australian Walkabout Wildlife Park Pty Limited (ACN 115 219 791) as Trustee for the Gerald and Catherine Barnard Family Trust v Minister for Planning and Infrastructure & Anor [2015] NSWLEC 1465 at [260] (Darkinjung v Minister for Planning). In that case, the Commissioners held that the incomplete investigations requested by Heritage NSW raised concerns about whether the area had been sufficiently examined to confirm that the full extent of the sites and their significance were known, and whether the potential for additional sites had been effectively predicted. Further, the Commissioners held at [284] and [298] that a conclusive understanding of the potential extent of Aboriginal cultural heritage should be completed prior to the decision to grant consent to a development application including a consideration whether any such impact could be mitigated through a redesign of the proposed development: Darkinjung v Minister for Planning at [339].

Orders:

109. In matter number 2024/183987 (Concept DA):

1. (1) The appeal is dismissed.

2. (2) Development Application DA 92-2024 seeking concept development approval for the use of the site as a logistics hub and related industrial uses within three warehouse buildings at 170 Willmington Road, Luddenham is determined by way of refusal of consent.

3. (3) Exhibits are returned with the exception of Exhibits E and 1.

110. In matter number 2024/184071 (Stage 1 DA):

1. (1) The appeal is dismissed

2. (2) Development Application DA 93-2024 seeking approval for Stage 1 works being demolition, tree removal, subdivision of the site into five lots, bulk earthworks, civil works, stormwater drainage and provision of services for future light industrial development at 170 Willmington Road, Luddenham is determined by way of refusal of consent,

3. (3) Exhibits are returned with the exception of Exhibit M and 10.

D Dickson

Commissioner of the Court

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Decision last updated: 22 August 2025