Austral No. 88 Pty Ltd v Liverpool City Council

[2025] NSWLEC 1582

Land and Environment Court

New South Wales

Medium Neutral Citation:

Austral No. 88 Pty Ltd v Liverpool City Council [2025] NSWLEC 1582

Hearing dates:

Conciliation Conference 22 July 2025

Date of orders:

15 August 2025

Decision date:

15 August 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA-39/2024 for subdivision of two (2) lots into thirty (30) lots and associates earthworks, remediation, vegetation clearance, civil works and landscaping at Lots 819 and 820 in Deposited Plan 2475, being 60 Eleventh Avenue, Austral NSW, is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords:

APPEAL – Development application - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), Pt 5, ss 4.14, 4.15, 4.46, 4.47, 8.7, 8.10, 8.11

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

Rural Fires Act 1997 (NSW), s 100B

Water Management Act 2000 (NSW), s 91

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, 6.3, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4, ss 3.26, 4.1AA, 4.1AB, 4.1B, 5.9, 6.1, 6.3

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

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.109, 2.137

Texts Cited:

Liverpool Development Control Plan 2008

Category:

Principal judgment

Parties:

Austral No. 88 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
A Jucha (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/208579

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 deemed refusal of the applicant’s development application (DA-39/2024) (Development Application). The Development Application, as lodged, sought consent for the subdivision of two lots into 30 lots and associated earthworks, remediation, vegetation clearance, civil works and landscaping, on land identified as Lots 819 and 820 in Deposited Plan 2475, known as 60 Eleventh Avenue, Austral, NSW (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 on 22 January 2024.

4. The development the subject of the Development Application is integrated development within the meaning of s 4.46 of the EPA Act as concurrence is required:

1. under s 100B of the Rural Fires Act 1997 (NSW) (RF Act) as the proposed development proposes the subdivision of bush fire prone land that could lawfully be used for residential purposes; and

2. under s 91 of the Water Management Act 2000 (NSW) (WM Act) as the proposed development is a “controlled activity” under s 91 of the WM Act.

5. The Development Application was notified in accordance with the Liverpool City Council Community Engagement Strategy 2022 between 15 February and 14 March 2024 with one submission being received in relation to the notification.

6. On 5 June 2024, the proceedings were commenced in relation to the deemed refusal of the amended Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

7. Following the termination on 25 February 2025, of a conciliation conference arranged by the Court under s 34(1) of the LEC Act between the parties, the matter was listed for hearing on 22 and 23 July 2025.

8. On 15 July 2025, the Court granted leave to the applicant to amend the Development Application to rely on various plans and documents, including, importantly, to remove the proposed road works and associated vegetation clearing from the scope of the proposal (Amended Development Application).

9. This is because the Subject Land contains vegetation mapped on the vegetation retention and existing native vegetation (ENV) area map under the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Precincts SEPP). Council is unable to grant consent to development which involves the clearing of vegetation mapped as ENV pursuant to s 6.3 of Appendix 4 of the Precincts SEPP.

10. Accordingly, a Review of Environmental Factors (REF) was prepared and approved under Pt 5 of the EPA Act for the construction of four local roads and associated works including the realignment of a watercourse and drainage works on the Subject Land. The works the subject of the REF are permissible pursuant to ss 2.109 and 2.137 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP). The respondent was the determining authority for the REF and approved the development on 15 July 2025 (Part 5 Approval). The parties agree that the works the subject of the Part 5 Approval will be carried out by the applicant on behalf of the respondent.

11. Consequently, consistent with Conditions 1 and 9 of the Agreed Conditions, development consent is not sought, nor granted in respect of this Development Application, for the roads and drainage works, the subject of the Part 5 Approval.

12. As a result of the Part 5 Approval and Amended Development Application, the parties reached agreement and requested that the matter be listed for another s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 22 July 2025, following which the hearing was vacated. I presided over the conciliation conference.

13. The decision agreed upon is for the grant of consent to the Amended Development Application subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

14. 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

15. 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 s34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owners consent

16. The registered proprietor of the Subject Land provided consent to the Development Application when it was lodged with the respondent (see Class 1 Application, tab 1).

Rural Fires Act 1997 (NSW)

17. Pursuant to s 100B(3) of the RF Act, a person must relevantly obtain a bush fire safety authority before developing bush fire prone land including for subdivision that could lawfully be used for residential purposes.

18. The Development Application was referred to the NSW Rural Fire Service (RFS) who issued a relevant Bush Fire Safety Authority and general terms of approval (RFS GTAs) on 2 April 2024. The RFS GTAs have been incorporated in the agreed conditions of consent (see condition 1(2)).

19. To this end, I note that the Development Application includes a Bushfire Assessment Report prepared by Peterson Bushfire dated 19 December 2023 (Bushfire Report) which was considered by the RFS in issuing the RFS GTAs. Further, the parties agree, and I accept that, the Bushfire Report complies with the requirements for Planning for Bushfire Protection under s 4.14(1) of the EPA Act.

Water Management Act 2000 (NSW)

20. Pursuant to s 91(2) of the WM Act, “a controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land”.

21. The proposal involves works within 40m of a watercourse, therefore falling within the definition of “waterfront land” under the WM Act.

22. The respondent referred the Development Application, as lodged, to the Department of Planning and Environment - Water (DPE) for the purposes of ss 4.46 and 4.47 of the EPA Act and s 91(2) of the WM Act.

23. On 14 May 2024, DPE issued general terms of approval (DPE GTAs) in relation to the Development Application. The DPE GTAs have been incorporated in the agreed conditions of consent (see condition 1(2)).

State Environmental Planning Policy (Resilience and Hazards) 2021

24. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. If the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

25. The Development Application, as lodged, contained a Detailed Site Investigation prepared by GeoEnviro Consultancy Pty Ltd dated August 2023 (DSI) which concluded that remediation and validation works would be required to make the Subject Land suitable for the proposed use. The Development Application is also accompanied by a Remediation Action Plan prepared by GeoEnviro Consultancy Pty Ltd dated August 2023 (RAP). The RAP concludes that the Subject Land can be made suitable for the proposed residential land use subject to the implementation of the strategies and recommendations outlined in the report. The parties agree that these recommendations are included in the agreed conditions (see conditions 83, 85, 137, 138, 206-210 and 223).

26. The Amended Development Application also includes a further Detailed Site Investigation - Exclusion Zone prepared by GeoEnviro Consultancy Pty Ltd dated September 2024 (Exclusion Zone DSI) which concludes that no contamination has been identified in this area of the Subject Land and this area is therefore suitable for the proposed residential subdivision.

27. The parties agree that the requirements of s 4.6(1) of the RH SEPP are satisfied.

28. Having regard to the DSI, RAP and Exclusion Zone DSI, I am satisfied that the requirements of s 4.6 of the RH SEPP have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

29. 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 Hawkesbury-Nepean catchment.

30. Parts 6.2 and 6.3 of Ch 6 set out various matters in relation to which the consent authority must be satisfied, or must consider, before granting development consent.

31. The parties agree, and I accept that:

1. For the purposes of s 6.6 of the BC SEPP, having regard to the Sediment and Erosion Control Plan and Sediment and Erosion Control Details, drawing No.s DA-0901 & DA-0902, prepared by Colliers, Revision E, dated 21 November 2024, the Flood Impact Assessment prepared by Colliers dated 21 November 2024 (Flood Assessment) and Geotechnical and Salinity Investigation Report prepared by GeoEnviro Consultancy Pty Ltd dated July 2023 (Geotechnical Report), Stormwater Management Report prepared by Craig & Rhodes dated 21 December 2023 (Stormwater Management Report), and Pre-Development Catchment Plan, Post-Development Catchment Plan, Temporary OSD/WSUD Basin 01 Plan and 02 Plan, Bain Details plans (Drawing No.s DA-0701 to DA-0753) prepared by Colliers, Revision E, dated 21 November 2024, the proposal will not:

1. effect the quality of water entering a natural waterbody and will be as close as possible to neutral; and

2. will not impact on water flow in a natural waterbody.

2. For the purposes of s 6.7 of the BC SEPP, the proposed development:

1. to the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor and not determinative of the application;

2. the development does not involve the clearing of riparian vegetation;

3. the development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway;

4. the development will not have an adverse impact on wetlands;

5. the development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures; and

6. the development adjoins a natural waterbody and the DPE GTA’s have been attached to the agreed conditions of consent.

3. For the purposes of s 6.8 of the BC SEPP, the proposed development will have no impact on periodic flooding that benefits wetlands and other riverine ecosystems and flooding impacts have been assessed in the Flood Assessment and Stormwater Management Report as not having any adverse impact on the environment.

4. For the purposes of s 6.9 of the BC SEPP, the proposed development will not relevantly affect public access to and from natural waterbodies.

5. For the purposes of s 6.10 of the BC SEPP, the proposed development is not likely to have an adverse environmental impact on any adjacent local government areas.

6. For the purposes of s 6.11 of the BC SEPP, the proposed development includes water-dependent uses and any conflicts between land uses are minimised.

32. The relevant requirements of Ch 6 of the BC SEPP are therefore satisfied in respect of the Amended Development Application.

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

33. The Subject Land is zoned part R2 Low Density Residential, R3 Medium Density Residential and SP2 Infrastructure (Local Drainage) under the Liverpool Growth Centres Precinct Plan (Precinct Plan) contained in Appendix 4 of the Precincts SEPP. Accordingly, the parties agree that the development the subject of the Amended Development Application is permitted with consent under the Precinct Plan.

34. I have had regard to the R2, R3 and SP2 zone objectives which are extracted below:

R2 Low Density Residential

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

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

• To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

• To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

R3 Medium Density Residential

• 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 support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a medium density residential environment.

SP2 Infrastructure

• To provide for infrastructure and related uses.

• To prevent development that is not compatible with or that may detract from the provision of infrastructure.

35. The parties agree that the Amended Development Application can be approved having regard to the objectives of the R2, R3 and SP2 zones, considered in the Statement of Environmental Effects prepared by Craig & Rhodes dated December 2023 (SEE) at p 22.

36. Section 4.1AB of the Precinct Plan sets out minimum lot sizes for residential development in the R2 Low Density zone. Pursuant to s 4.1AB(3)(b), the minimum lot size for a dwelling house is 300m2 if the dwelling density (per hectare) shown on the Residential Density Map for the site is 15, 25 or 35 dwellings. The R2 zoned portion of the Subject Land has a dwelling density (per hectare) of 15 dwellings and the R3 zoned portion of the Subject Land has a dwelling density of 25 dwellings.

37. Therefore, the Amended Development Application complies with this provision for those proposed lots that are 300m2 or larger.

38. In relation to the proposed lots that are less than 300m2, the parties agree that s 4.1AA of the Precinct Plan applies. Section 4.1AA of the Precinct Plan relevantly provides that development consent may be granted to the subdivision of land in land zoned R2 or R3 resulting in the creation of a lot that has an area less than 300m2 (but not less than 225m2), if the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on that lot. The Amended Development Application is accompanied by building envelope plans which confirm that those lots are capable of containing a dwelling house which complies with relevant controls.

39. Pursuant to s 4.1B of the Precinct Plan, the minimum dwelling density (per hectare) for the R2 zoned portion of the Subject Land is 15 dwellings and the minimum dwelling density (per hectare) for the R3 zoned portion of the Subject Land is 25 dwellings. The Amended Development Application proposes a dwelling density of:

1. 17.4 dwellings per hectare in the R2 zone; and

2. 25 dwellings per hectare in the R3 zone, and

3. therefore complies with this section.

40. Section 5.9(3) of the Precinct Plan relating to “preservation of trees and vegetation” requires a person to obtain development consent or a permit to remove vegetation. The Amended Development Application seeks removal for 60 trees and is supported by an Arborist Impact Assessment prepared by AEP dated December 2024 (Arborist Report).

41. Pursuant to s 6.1 of the Precinct Plan, a consent authority must not grant development consent to development unless it is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.

42. The parties agree that the development the subject of the Amended Development Application will be connected to all essential services as detailed in the SEE and subject to the Agreed Conditions.

43. Having regard to the SEE and Agreed Conditions, I am satisfied that the public utility infrastructure essential for the proposed development the subject of the Amended Development Application is available or adequate arrangements have been made to make that infrastructure available when required in accordance with s 6.1 of the Precinct Plan.

44. Pursuant to s 6.3 of the Precinct Plan, the consent authority must not grant development consent for development on land mapped “existing native vegetation” unless it is satisfied that the proposed development will not result in the clearing of any existing native vegetation. The parties agree that the Amended Development Application does not propose the clearing of any existing native vegetation.

45. Finally, s 3.26 of the Precincts SEPP relating to development on flood prone and major creeks land applies to the Amended Development Application as the Subject Land is mapped as flood prone and major creeks land. Pursuant to s 3.26 of the Precincts SEPP, consent is not to be granted to the carrying out of development on land so mapped unless the matters in s 3.26(2) are taken into consideration. The parties agree, and I accept, that these requirements have been considered having regard to the findings of the Flood Assessment.

Liverpool City Council Growth Centres Precinct Development Control Plan

46. The parties agree that the Amended Development Application can be approved having regard to the provisions of the Liverpool City Council Growth Centres Precinct Development Control Plan (DCP).

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

47. The parties agree that the Amended Development Application can be approved taking into consideration the matters listed in s 4.15(1) of the EPA Act.

48. Matters relevant to s 4.15(1)(a) have been generally considered above and in the SEE.

49. In relation to s 4.15(1)(b), the parties agree that the proposed development will not have a significant impact on the natural or built environment (see pp 33-35 of the SEE).

50. In relation to s 4.15(1)(c), the parties agree that the Subject Land is suitable for the proposed development (see p 36 of the SEE).

51. In relation to s 4.15(d), the Development Application was notified from 15 to 14 March 2024. One submission was received in response to the notification primarily raising concerns regarding consistency of drainage lines. The parties agree that the Amended Development Application has considered and addressed the objector’s concerns. I am satisfied that the submission has been taken into consideration in the assessment and determination of the Amended Development Application.

52. In relation to s 4.15(1)(e), the parties agree that consideration has been given to the public interest.

53. In determining the Amended Development Application, I confirm that I have taken into consideration such of the matters that are of relevance to the proposal listed in s 4.15(1) of the EPA Act.

Conclusion

54. 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.

55. 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.

Orders

56. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA-39/2024 for subdivision of two (2) lots into thirty (30) lots and associates earthworks, remediation, vegetation clearance, civil works and landscaping at Lots 819 and 820 in Deposited Plan 2475, being 60 Eleventh Avenue, Austral NSW, is determined by the grant of consent subject to the conditions in Annexure A.

N Targett

Commissioner of the Court

Annexure A (1.93 MB, pdf)

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Decision last updated: 15 August 2025