Al-Zohairy v Liverpool City Council

[2025] NSWLEC 1592

Land and Environment Court

New South Wales

Medium Neutral Citation:

Al-Zohairy v Liverpool City Council [2025] NSWLEC 1592

Hearing dates:

Conciliation Conference 15 August 2025

Date of orders:

21 August 2025

Decision date:

21 August 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA-31/2024, as amended, for the demolition of existing structures and construction of a two-storey childcare centre for 43 children at 28 Hill Road, Lurnea NSW 2170 is determined by the grant of development consent subject to the conditions at Annexure A.

(3) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent’s costs thrown away as a result of the amended development application, as agreed or assessed.

Catchwords:

APPEAL – development application - childcare centre - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.10, 8.15

Land and Environment Court Act 1979 (NSW), ss 17, 34

Environmental Planning and Assessment Regulation 2021 (NSW), s 38

Liverpool Local Environmental Plan 2008, cll 7.7, 7.31

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.23, 3.26

Texts Cited:

Liverpool Development Control Plan 2008

NSW Government, Child Care Planning Guideline, September 2021

Category:

Principal judgment

Parties:

Saman Al-Zohairy (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
N Touma (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)

Solicitors:
Lionheart Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/358515

Publication restriction:

Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s refusal of the applicant’s Development Application No. DA-31/2024 (Development Application) seeking consent for the demolition of existing structures, and construction of a two-storey childcare centre for 43 children on land legally described as Lot 1 in Deposited Plan 29805 and known as 28 Hill Road, Lurnea (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 22 June 2024.

4. The Development Application was publicly notified between 23 January and 7 February 2024. No submissions were received.

5. On 20 June 2024, the application was refused.

6. On 27 September 2024, the applicant commenced proceedings in relation to the refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was terminated on 13 May 2025. The matter was then set down for hearing.

8. Prior to the hearing, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement reached is for consent to be granted to the Development Application in a modified form, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

9. The agreed amendments include:

1. amendments to the roof form;

2. amendments to the basement parking layout;

3. reconfiguring the outdoor play area; and

4. minor internal modifications,

1. (Amended Development Application).

10. 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.

Jurisdictional considerations

11. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owners’ consent

12. The applicant is the registered proprietor of the Subject Land and provided owners consent to the lodgement of the Development Application (see Class 1, Application, tabs 2 and 3).

State Environmental Planning Policy (Resilience and Hazards) 2021

13. Consideration has been given as to whether the Subject Land is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree, and I accept, that the Subject Land has a longstanding history of residential use and is unlikely to be contaminated. Notwithstanding, a Preliminary Site Investigation prepared by Geo Engineering dated 21 May 2024 accompanies the proposal, which concludes that the Subject Land is unlikely to be contaminated and therefore suitable for its intended use. I further note condition 126 of the Agreed Conditions which requires any new information identified which may alter the previous conclusions about contamination to be notified to the certifier and the respondent.

14. The parties agree, and I accept that, the requirements of cl 4.6 of the RH SEPP are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the proposed development as the Subject Land is located within the Georges River catchment. Part 6.2 of Ch 6 sets out various matters in relation to which the consent authority must be satisfied, or must consider, before granting development consent.

16. The parties submit, and I accept, that the Amended Development Application will not have any significant impact on the environmental quality of the Georges River catchment, and the matters for consideration and satisfaction under Pt 6.2 have been addressed in the Stormwater Plans prepared by Smart Structure Australia (see Class 1 application, tab 14).

State Environmental Planning Policy (Transport and Infrastructure) 2021

17. Section 3.23 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) relevantly provides that before determining a development application for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline 2021 (Guidelines) in relation to the proposed development.

18. The proposed development’s compliance with the Guidelines has been addressed in the Statement of Environmental Effects prepared by Plan for Tomorrow dated 24 November 2023 (SEE) (see pp xiv-xliii).

19. In determining the Amended Development Application, I confirm that I have taken into consideration the applicable provisions of the Guidelines in relation to the proposed development for the purpose of s 3.23 of the TI SEPP.

20. Section 3.26 of the TI SEPP sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) of TI SEPP provides the requirements for indoor and outdoor space.

21. The parties agree that the Amended Development Application provides at least 3.25m2 of unencumbered indoor play space and at least 7m2 of unencumbered outdoor play space per child (see pp 13 and 16, respectively, of the SEE) which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Services National Regulations.

22. In determining the Amended Development Application, I am satisfied that the matters outlined in Ch 3 of the TI SEPP have been considered and addressed.

Liverpool Local Environmental Plan 2008

23. The Subject Land is zoned R3 Medium Density Residential under the Liverpool Local Environmental Plan 2008 (LLEP). Accordingly, the proposed development, being a “centre-based child care facility” is permissible with consent in the R3 zone. I have had regard to the zone objectives which are extracted below:

• To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for a concentration of housing with access to services and facilities.

•  To provide for a suitable visual transition between high density residential areas and lower density areas.

•  To ensure that a high level of residential amenity is achieved and maintained.

24. The parties agree that the Amended Development Application is consistent with the objectives of the R3 zone insofar as they are relevant.

25. The parties agree, and I accept, that the Amended Development Application complies with the height and floor space ratio standards prescribed in the LLEP.

26. For the purposes of cl 7.7 of the LLEP, the parties agree, and I accept that, the Subject Land is not identified as containing acid sulfate soils.

27. Pursuant to cl 7.31 of the LLEP relating to earthworks, the consent authority must consider specified matters before granting development consent. The parties agree, and I accept, that the matters listed in cl 7.31(3) of the LLEP have been adequately considered, having regard to the matters set out in the Jurisdictional Statement and Agreed Conditions.

Liverpool Development Control Plan 2008

28. The parties agree that the Amended Development Application is capable of approval having regard to the provisions of the Liverpool Development Control Plan 2008 (see also pp xlv-lix of the SEE).

Remaining matters under s 4.15(1) of the EPA Act

29. The matters listed in s 4.15(1)(b), (c) and (e) are considered generally in the SEE (see pp kx-lxvi) and there is no impediment to the approval of the Amended Development Application having regard to those matters.

30. In respect of s 4.15(1)(d) of the EPA Act, as set out above at [4], the Development Application was publicly notified between 23 January and 7 February 2024. No submissions were received

Conclusion

31. 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.

32. 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.

33. The Court notes that:

1. The respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending Development Application DA-31-2024 in accordance with the following plans and documents:

(i) Architectural Plans

Drawing Title			Drawing No.		Revision		Dated
Site Plan			DA103		11		25.05.01
Demolition Plan			DA104		8		25.04.22
Basement Floor Plan			DA200		10		25.05.01
Ground Floor Floor Plan			DA201		11		25.05.01
First Level Floor Plan			DA202		11		25.05.01
Roof Plan			DA203		11		25.05.01
North & East Elevations			DA301		10		25.04.22
South & West Elevations			DA302		11		25.05.01
Sections			DA304		11		25.05.01
Bathroom Plans & Elevations			DA305		1		25.04.22
Landscape Plans
Drawing Title	Drawing No.		Revision		Dated
Landscape Planting Plan	L/01 of 6		D		8/4/25
Plant and Materials Palette and Landscape Site Calculations	L/02 of 6		D		8/4/25
Proposed Fence Elevations (1 of 2)	L/03 of 6		D		8/4/25
Proposed Fence Elevations (2 of 2)	L/04 of 6		D		8/4/25
Landscape Details & Specification	L/05 of 6		D		8/4/25

1. Reports

   2. Waste Management Plan, prepared by Dickens Solutions, Reference 25010, dated March 2025;

   3. Access Report, prepared by Ai Consultancy, Revision R1.1, dated 30.04.25;

   4. 28 Hill Road, Lurnea Development Application (DA) Noise Assessment Report No BA240509 Version A prepared by Blackett Acoustics Noise & Vibration Consultants dated December 2024;

   5. Plan of Management, 28 Hill Road, Lurnea, Project Number: 140-2024, Revision E prepared by Pivotal Planning dated June 2025;

   6. Preliminary Site Investigation Report, prepared by Geo Engineering Pty Ltd, Report No: GE2315-PSI01, date 21/05/2024;

   7. Complaint Handling Process Report No BA250336, Version B prepared by Blackett Acoustics Noise & Vibration Consultants dated April 2025; and

   8. Traffic and Parking Assessment-Ref 24049, prepared by Terrafic Pty Ltd, dated 01/05/2025.

   34. The applicant filed the amended plans and documents outlined above with the Court on 6 August 2025.

Orders

35. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-31/2024, as amended, for the demolition of existing structures and construction of a two-storey childcare centre for 43 children at 28 Hill Road, Lurnea NSW 2170 is determined by the grant of development consent subject to the conditions at Annexure A.

3. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amended development application, as agreed or assessed.

N Targett

Commissioner of the Court

Annexure A (606 KB, pdf)

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Decision last updated: 21 August 2025