ANBZ Investments Pty Ltd v Liverpool City Council

[2025] NSWLEC 1542

Land and Environment Court

New South Wales

Medium Neutral Citation:

ANBZ Investments Pty Ltd v Liverpool City Council [2025] NSWLEC 1542

Hearing dates:

Conciliation conference on 11 and 26 June 2025

Date of orders:

01 August 2025

Decision date:

01 August 2025

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Modification Application DA-1139/2022/A and rely on the amended plans and documents listed at Condition 1 of Annexure A.

(2) Modification Application DA-1139/2022/A (as amended), for alterations and additions to the approved industrial development, amending several warehouse units, providing additional storage units and car parking, amendments to materials and facades, and amendments to site works, at 3-5 Hume Highway, Warwick Farm, is determined by way of approval.

(3) Development Consent DA-1139/2022 is modified subject to the conditions of consent set out at Annexure A.

(4) Development Consent DA-1139/2022 as modified by the Court is subject to the consolidated conditions of consent set out at Annexure B.

Catchwords:

MODIFICATION APPLICATION – alterations and additions – industrial development – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55

Land and Environment Court Act 1979 (NSW), s 34

Environmental Planning and Assessment Regulation 2021 (NSW), ss 98, 113

Liverpool Local Environmental Plan 2008, cll 2.3, 4.3

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

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

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

Cases Cited:

ANBZ Investments Pty Ltd v Liverpool City Council [2023] NSWLEC 1512

Texts Cited:

Liverpool Community Participation Plan

Category:

Principal judgment

Parties:

ANBZ Investments Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/474219

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), these proceedings concern a Modification Application DA-1139/2022/A (the MA) made directly to the Court by ANBZ Investments Pty Ltd (the Applicant). In these circumstances, Liverpool City Council (the Respondent) is required to exercise certain functions of the consent authority.

2. The MA seeks to modify Development Consent DA-1139/2022 (the parent DA), which comprises the demolition of existing building and structures, removal of existing trees and construction of industrial development comprising sixteen warehouses with mezzanines, 53 storage units on the first floor, car parking and associated landscaping, at 3-5 Hume Highway, Warwick Farm (the site).

3. Consent for the parent DA was granted by the Court on 11 September 2023 in proceedings ANBZ Investments Pty Ltd v Liverpool City Council [2023] NSWLEC 1512.

4. The MA was lodged with the Court on 20 December 2024 and at that date sought approval to modify the parent DA with the following design changes:

1. Amendments to Warehouse Unit A1 to accommodate a switch room, changes to parking configuration, and removal of an approved communal fire egress stair.

2. Amendments to Warehouse Unit A8, adjusting its shape and providing a splay to the north-western corner, relocation of the loading dock entry, and introduction of a switch room.

3. Amendments to Warehouse Unit B1, altering the ground floor layout to accommodate an internal lift, reconfiguration of employee amenities to accommodate a proposed lift, and conversion of approved balcony and loading area to internal office space.

4. Amendments to Warehouse Unit B7, relocating the entry door.

5. Amendments to Level 1 Storage Units, the provision of 15 additional storage units, the splitting of approved Unit C5 into two separate units, and the deletion of fire stairs.

6. Amendments to approved materials and facade, deleting painted architectural blades over a concrete facade, proposed to be replaced by metal cladding, additional glazed windows to the mezzanine office level of the warehouse, and introduction of feature awnings.

7. Amendments to site works, deleting the underground on site detention tank, a proposed sprinkler tank to the northeastern corner of the site, relocation of several car and bicycle parking spaces, the provision of a dual sprinkler pump room enclosure, and six additional car spaces.

5. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 11 and 26 June 2025. I presided over the conciliation conference.

6. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court granting approval to an amended MA, subject to conditions.

7. Of note, the MA has been amended to resolve the contentions originally pressed by the Respondent, which included the need for the provision of further information, the need for public notification, the need for external referrals, and inadequacies in documentation accompanying the MA.

8. The amendment of the MA by the Applicant, to provide additional information and clarification, has permitted public notification and external referrals to occur. Together these amendments are agreed to resolve the issues in this matter.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to modify the parent DA.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

11. In that regard, pursuant to s 98(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg), I am satisfied that the amended MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

12. The parties agree, and I am satisfied, that the amended MA was notified between 4 and 20 March 2025 in accordance with the Respondent’s Community Participation Plan. No submissions were received by the Respondent.

13. Accordingly, and pursuant to s 4.55(2)(c) and (d) of the EPA Act, I am satisfied that the amended MA has been appropriately publicly notified and that any submissions (had they been received) were able to have been appropriately considered.

14. Pursuant to s 4.55(2)(a) of the EPA Act, the parties agree, and I am satisfied, that the amended MA remains substantially the same as the parent DA when taking into consideration quantitative and qualitative aspects. The modification does not alter the approved building use for warehouses and storage units. The approved number of warehouse units is retained. Although an increase to the number of storage units is proposed, this occurs within the approved building envelope.

15. Pursuant to s 4.55(2)(b) of the EPA Act, the parties agree, and I am satisfied, that the Respondent has consulted with the relevant concurrence authorities (being Sydney Water, Transport for NSW and Endeavour Energy), and all have issued General Terms of Approval. Where relevant, updated agreed conditions have been included in the conditions of consent.

16. Pursuant to s 4.55(3) of the EPA Act, the parties agree, and I am satisfied, that the reasons given by the Court for the grant of consent to the parent DA have been appropriately considered by the parties in reaching their agreement in this matter.

17. The Court’s reasons for the original grant of consent to the parent DA (which also involved agreed amendments between the parties) included the amended design’s improved relationship to the site, its context, and the desired future character of this area of Warwick Farm.

18. Notably, the parent DA was amended during the conciliation conference to resolve the contentions initially raised by the Respondent, which related to issues of the exceedance of the height of building development standard, the adequacy of the landscape design, architectural design and stormwater design, amongst other contentions.

19. The final design amendments included enhancements to the landscape design across the site and clarification of the precise form and nature of the proposed development including facade treatments and the design of a vehicle ramp serving the upper level. Additional details regarding flood mitigation measures served to justify the height of building exceedance.

20. The parties agree, and I am satisfied, that the Liverpool Local Environmental Plan 2008 (LLEP) is the relevant local environmental planning instrument.

21. Consistent with the parent DA consent, I am satisfied that the site is zoned E4 General Industry pursuant to cl 2.3 of the LLEP. Development for the purposes of an industrial building, warehouse or distribution centre is permissible with consent.

22. I am satisfied that pursuant to cl 4.3 of the LLEP - Height of buildings - the relevant development standard for the site is 15m. The parent DA was granted consent for a building of 16.6m in height, supported by a written request to vary the height of building development standard, and the MA does not seek any increase in height.

23. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument.

24. Pursuant to s 4.6 of SEPP Resilience, and consistent with the parent DA consent, the parties agree, and I am satisfied, that the contamination potential of the site was considered as part of assessment of the parent DA. The amended MA does not introduce any new considerations. Agreed conditions of consent were imposed requiring any new information identified during construction regarding site contamination to be notified to the Respondent. The amended MA does not seek to alter this condition.

25. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

26. Chapter 6 of SEPP BC deals with water catchments. The site is situated on land identified as being within the Georges River Catchment, but is not in close proximity to the foreshore. Given the site experiences flooding during significant rain events, the relevant provisions of SEPP BC were satisfied as part of the assessment of the parent DA.

27. The amended MA provides for a stormwater management system designed to ensure stormwater disposal, and erosion and sediment controls prevent any detrimental impacts to adjoining properties or the broader catchment area, maintaining consistency with SEPP BC.

28. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument.

29. Pursuant to s 2.119 of SEPP Infrastructure, the site has a frontage to the Hume Highway, which is a classified road. The amended MA does not alter the approved access arrangements between the site and the Hume Highway. Although minor modifications are proposed to the layout of car parking spaces, the approved number of on-site car parking and bicycle parking spaces will be maintained.

30. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended MA warrants the grant of consent, subject to the imposition of conditions.

31. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

32. The Court notes that:

1. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the MA with the approval of the Respondent.

2. The Applicant has lodged the amended MA with the Court on 3 July 2025.

Orders

33. The Court orders that:

1. Leave is granted to the Applicant to amend Modification Application DA-1139/2022/A and rely on the amended plans and documents listed at Condition 1 of Annexure A.

2. Modification Application DA-1139/2022/A (as amended), for alterations and additions to the approved industrial development, amending several warehouse units, providing additional storage units and car parking, amendments to materials and facades, and amendments to site works, at 3-5 Hume Highway, Warwick Farm, is determined by way of approval.

3. Development Consent DA-1139/2022 is modified subject to the conditions of consent set out at Annexure A.

4. Development Consent DA-1139/2022 as modified by the Court is subject to the consolidated conditions of consent set out at Annexure B.

M Pullinger

Acting Commissioner of the Court

Annexure A (2.39 MB, pdf)

Annexure B (4.80 MB, pdf)

Architectual Plans (31.2 MB, pdf)

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Decision last updated: 01 August 2025