Dabboussi v Liverpool City Council

[2025] NSWLEC 1732

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dabboussi v Liverpool City Council [2025] NSWLEC 1732

Hearing dates:

S 34 conciliation conference held on 29 August 2025

Date of orders:

14 October 2025

Decision date:

14 October 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, as agreed or assessed.

(2) The appeal is upheld.

(3) Development Application No DA-642/2023 as amended for the subdivision of an existing lot into three Torrens Title lots over two stages, including vegetation removal, construction of roads and associated civil works on the land legally described as Lot 3 in Deposited Plan 1250100, known as 1 Twenty Ninth Avenue, Austral NSW 2179 is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.14, 4.15, 4.16, 4.17, 4.46, 8.7

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

Rural Fires Act 1997 (NSW), s 100B

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Part 6.2, Div 2, Chs 2, 6, s 6.8

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4, ss, 2.2, 2.3, 2,6, 2.7, 4.1, 5.9, 5.10, 6.1

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.77, 2.163

Texts Cited:

Development Adjacent to the Upper Canal and Warragamba Pipelines 2021

Liverpool Community Engagement Strategy 2022

Liverpool Growth Centres Precincts Development Control Plan 2021

Planning for Bushfire Protection 2019

Category:

Principal judgment

Parties:

Issam Dabboussi (First Applicant)
Bosiljka Dabboussi (Second Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Parsons (Solicitor) (First and Second Applicants)
A Jucha (Solicitor) (Respondent)

Solicitors:
Project Lawyer (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/416213

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 NSW (EPA Act) against the refusal of development application No DA-642/2023 (DA) for the Torrens title subdivision of one (1) lot into five (5) lots with construction of roads and associated works on the land legally described as Lot 3 in Deposited Plan 1250100, known as 1 Twenty Ninth Avenue, Austral, NSW, 2179 (the site).

History of the DA

2. The DA was lodged with Liverpool City Council (the Respondent) on 21 December 2023. On 7 August 2024 the DA was refused by the Respondent.

3. On 8 November 2024, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the EPA Act against the refusal of the DA by the Respondent.

4. On 26 February 2025, the Court arranged a s 34 conciliation conference on site pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The s 34 conciliation conference was adjourned, however the parties were not able to reach an agreement, and the s 34 conciliation conference was terminated by the Court on 28 March 2024. The matter was adjourned for a hearing on 29 August 2025.

5. The termination report for the s 34 conciliation conference stated that the key issues with the proposed development were generally resolved, however there was an unknown period of time required to secure owner’s consent from the landowner of an adjoining property.

The Hearing

6. The on-site view on 29 August 2025 was vacated, as the parties advised that they anticipated reaching a s 34 agreement on the proposed development on the day of the hearing, and that there were no submitters on the DA.

7. Once the signed s 34 agreement was filed by the parties, the matter was adjourned to a s 34 conciliation conference which I conducted, commencing in the Court on 29 August 2025.

The s 34 Conciliation Conference

8. At the s 34 conciliation conference on 29 August 2025, the parties confirmed that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, based on the amended DA. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

9. The s 34 agreement is based on an amended DA which now seeks consent for the subdivision of an existing lot into three Torrens Title lots over two stages, including vegetation removal, construction of roads and associated civil works.

10. Other changes included in the amended DA are as follows:

1. Addition of bio-detention basin;

2. Deletion of roadworks to connect to 11^th Avenue – pathway to 11^th Avenue and turning head in Brabanter Street proposed in the amended plans; and

3. Additional detail of stormwater outlets in the amended plans.

11. A signed s 34 agreement with Annexure A and amended plans (the amended DA) as agreed between the parties were filed with the Court on 29 August 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites provided by the parties to the Court on 29 September 2025.

12. 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. 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.

13. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

14. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows below.

Jurisdictional Matters

Community Participation - Environmental Planning and Assessment Act1979 (NSW)

15. The parties advise that the development application was not required to be notified in accordance with the Liverpool Community Engagement Strategy 2022 and Sch 1, Div 2, s 7(1) of EPA. Further the parties advise that:

1. Section 3.3.1 Control 9 of Liverpool Growth Centres Precincts Development Control Plan 2021 provides that for changes to the proposed road system which Council considers minor, Council may write to affected property owners and consider any comments of those persons before determining the DA;

2. The Respondent notified the amended Concept Engineering Plans prepared by North Western Surveys, Revision E, dated 22 August 2025 to the neighbouring property at 20 Eleventh Avenue, Austral, as agreed during the course of the proceedings from 22 August 2025 to 29 August 2025. No submissions were received in response; and

3. The Respondent is satisfied that other than the amended plans referred to in [15(2)] above, the balance of the amended plans and documents agreed to during the course of the proceedings do not need to be further notified or advertised.

Owner’s consent

16. The parties advise that the Applicants are the registered proprietors of the site. Landowners’ consent has also been provided in connection with works proposed on land adjoining the site at 5 Tenth Avenue, Austral.

Integrated Development

17. The DA is identified as integrated development pursuant to s 4.46 of the EPA Act as it requires an authorisation from the NSW Rural Fire Service (RFS) under section 100B of the Rural Fires Act 1997 (NSW) (RF Act).

18. The parties advise that the DA was referred to the RFS pursuant to s100B of the RF Act.

19. On 15 August 2025, the RFS issued General Terms of Approval (GTAs) and a Bushfire Safety Certificate pursuant to s100B of the RF Act in respect of the proposed development. Compliance with the GTAs has been incorporated into the conditions of consent at condition 3.

Bushfire Prone Land

20. Section 4.14(1) of the EPA Act provides that development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes) on bushfire prone land unless the consent authority:

(a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or

(b)    has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.

21. The parties advise that:

1. the site is identified as Bushfire Prone Land on the relevant Bush Fire Prone Land Map under s 10.3(2) of the EPA Act. The site is mapped as Category 3 Bushfire Hazard Vegetation Zone;

2. A Bushfire Hazard Assessment Report prepared by First Field Environmental dated 24 August 2023 (Bushfire Assessment Report) has been submitted with the DA which confirms that the DA can comply with Planning for Bush Fire Protection 2019 as required under s 4.14(a) of the EPA Act and Australian Standards 3959:2018 Construction of Buildings in Bushfire Prone Area; and

3. The Bushfire Assessment Report also provides recommended mitigation measures and construction requirements to reasonably address the aims and objectives of Planning for Bush Fire Protection 2019.

Conditions

22. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

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

23. State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (the Precincts SEPP) is the relevant environmental planning instrument that applies to the site. Appendix 4 (Liverpool Growth Centres Precinct Plan 2013) (the Precinct Plan) of the Precincts SEPP is applicable to the site.

24. The site is zoned Environmental Living C4 pursuant to s 2.2 of the Precinct Plan; and

1. The proposed subdivision development is permissible with consent in the C4 zone pursuant to s 2.3 of the Precinct Plan;

2. Section 2.3(2) of the Precinct Plan requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and

3. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

25. Section 2.6 of the Precinct Plan permits land to be subdivided but only with development consent. The amended DA seeks consent for the staged subdivision of the site.

26. Section 2.7 of the Precinct Plan permits the demolition of a building or a work but only with development consent. The amended DA does not seek consent for demolition on the site.

27. The Lot Size Map contained in s 4.1(3) of the Precinct Plan provides that the minimum lot size in relation to the site is 1000m2. The parties advise that subdivision of the site is proposed in two stages, with the following residential lot sizes:

1. Lot 102 – 2,122.6m2;

2. Lot 102 – 2,002.6m2; and

3. Lot 103 – 1,875.5m2

28. The parties advise that they agree that the proposed development complies with s 4.1(3) of the Precinct Plan.

29. Section 5.9 of the Precinct Plan relates to preservation of trees and vegetation. Tree removal is proposed as part of the amended DA. The parties advise that:

1. The existing trees to be either retained and removed are identified in the Concept Engineering Plans (Tree Removal Plan, Plan No. 103, Revision B, dated 28 March 2024) prepared by North Western Surveys submitted in support of the amended DA;

2. Tree removal will facilitate the construction of roads, the bulk earthworks required to prepare the site for the intended road network and accompanying drainage infrastructure and the provision of services; and

3. The parties agree this section is satisfied.

30. Section 5.10 of the Precinct Plan relates to heritage conservation. The parties advise that An Aboriginal Due Diligence Assessment prepared by Apex Archaeology has been submitted in support of the DA. The parties advise that:

1. The report confirms no Aboriginal sites, objects or areas are likely to be present within the site and concludes that no further archaeological investigations are required;

2. Conditions of consent have been agreed which make provision for unexpected archaeological finds on the site (refer to conditions of consent 65 and 67); and

3. The parties agree that s 5.10 of the Precinct Plan is satisfied.

31. Section 6.1 of the Precinct Plan relates to public utility infrastructure. The proposed development requires service connections to public utility infrastructure, including the supply of water, electricity and telecommunication services. The parties advise that the DA (as originally submitted) and the amended DA have been referred to RFS, Water NSW, Sydney Water, Endeavour Energy and Jemena.

32. The parties agree that s 6.1 of the Precinct Plan is satisfied for the following reasons:

1. The Respondent has subsequently received correspondence from these authorities, advising that there are no objections to the proposal, subject to the imposition of specified requirements and conditions identified in the General Terms of Approval issued; and

2. These requirements and conditions have been incorporated into the conditions of consent (see for example condition 3). Further conditions of consent have also been imposed in connection with the provision of public utility infrastructure (see for example conditions 11, 12, and 13).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

33. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) operates to protect the biodiversity values of trees and other vegetation in non-rural areas of NSW and to preserve the amenity of non-rural areas of NSW through the preservation of trees and other vegetation.

34. The proposed development includes tree removal as part of the amended DA to facilitate the construction of roads, the bulk earthworks required to prepare the site for the intended road network and accompanying drainage infrastructure and the provision of services. The parties advise that the matters arising under Ch 2 of the Biodiversity SEPP do not apply to the proposed development, and as such, is not a jurisdictional requirement for the Court to consider. This is because the Applicants have not applied to remove the trees under permit but rather seek development consent to remove the trees under EPA Act.  

35. Chapter 6 of the Biodiversity SEPP applies to the proposed development as the site is located within the Hawkesbury-Nepean Catchment. Chapter 6 of the Biodiversity SEPP seeks to manage and promote integrated catchment management policies. Part 6.2, Div 2 of the Biodiversity SEPP identifies the general planning matters to be considered by the consent authority in determining the amended DA.

36. The parties advise that the proposed development is consistent with the development controls identified in Part 6.2, Division 2 of the Biodiversity SEPP and that these matters are addressed in the following documents submitted in support of the DA and the amended DA including:

1. Statement of Environmental Effects prepared by North Western Surveys;

2. Civil and Stormwater plans prepared by North Western Surveys;

3. Waste Management Plan prepared by North Western Surveys;

4. Stage 1 Preliminary and Stage 2 Detailed Site Investigation, prepared by Sydney Environmental Group;

5. Soil Salinity Assessment, prepared by Sydney Environmental Group;

6. Aboriginal Due Diligence Assessment, prepared by Apex Archaeology; and

7. Bushfire Assessment Report.

37. In relation to Pt 6.2 Div 2 s 6.8 of the Biodiversity SEPP (which is concerned with flooding), the parties advise that:

1. The subject site is not mapped as being flood affected, however, is affected by overland flows from the catchment of Tributary 2 of Kemps Creek. The Respondent has reviewed the civil plans and has no objection to the proposed development subject to conditions; and

2. Conditions of consent addressing erosion, sediment control and stormwater runoff mitigation have been imposed (see conditions 37, 49, 50, 58, 59, 60, 61, 62, 63 and 64).

38. The parties advise that they agree that the requirements of the Biodiversity SEPP are satisfied in relation to the amended DA.

State Environmental Planning Policy (Resilience and Hazards) 2021

39. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and 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.

40. The parties advise that:

1. The amended DA is supported by the Stage 1 Preliminary and Stage 2 Detailed Site Investigation Report, prepared by Sydney Environmental Group, dated 11 September 2023. The report investigates the contamination status of the site and concludes that the site will be suitable for the proposed use;

2. The parties are satisfied that they have considered the contamination status of the site and that the site can be made suitable for the proposed development in accordance with s 4.6 of the Resilience SEPP.

3. Conditions of Consent have been agreed which make provision for unexpected contamination on the site (see for example conditions 54 and 55).

41. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

42. The parties advise that the site contains a pipeline easement for gas which runs through the site in a north-south direction. The pipe within the easement is owned by Jemena. The subdivision plans submitted in support of the amended DA facilitate the retention of the existing pipeline easement as part of the proposed development. The amended DA proposes no works within the pipeline easement.

43. Pursuant to s 2.77 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport SEPP), the DA was referred to Jemena for comment. Jemena has assessed and issued General Terms of Approval in connection with the amended DA and these are incorporated into the conditions of consent (see for example, condition 3).

44. The site is located, in part, on “affected” land identified in the Water Supply Infrastructure Map as referred to in s 2.163 of the Transport SEPP. The consent authority must be satisfied that the amended DA is consistent with the Guideline for Development Adjacent to the Upper Canal and Warragamba Pipelines published by Water NSW in September 2021.

45. Both WaterNSW and Council are satisfied that the design of the proposed development is consistent with these considerations (refer to letter from WaterNSW dated 8 February 2024).

46. The parties submit that the requirements of the Transport SEPP have been satisfied.

Conclusion

47. The parties agree that the amended DA can be approved taking into consideration the matters in sections 4.15(1)(b) – (e) of the EPA Act.

48. Having considered the advice of the parties provided above at [15]-[47] I am satisfied that:

1. The Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b)-(e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. Approval of the proposed development is in the public interest.

49. Further, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

50. 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.

51. The Court notes:

1. That Liverpool City Council, as the consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application DA-642-2023 made on 29 August 2025 to rely on the documents specified below:

52 Plan Name	Drawing No.	Rev/Ref No	Date	Prepared By
Amended Engineering Plans
Face Sheet	001	E	22 August 2025	North Western Surveys
Construction Notes	002	A	24 November 2023	North Western Surveys*
Sediment & Erosion Control Plan	101	B	5 May 2025	North Western Surveys
Sediment & Erosion Control Notes	102	A	24 November 2023	North Western Surveys*
Tree Removal Plan	103	B	28 March 2024	North Western Surveys*
Services Plan	201	B	5 May 2025	North Western Surveys
Cut Fill Depth Plan	301	D	7 August 2025	North Western Surveys
Proposed Civil Works	401	E	22 August 2025	North Western Surveys
Typical Road Cross Sections and Details	501	C	5 May 2025	North Western Surveys
Road Longitudinal Sections	502	B	5 May 2025	North Western Surveys
Cul-De-Sac Details	601	B	7 August 2025	North Western Surveys
Overall Catchment Plan	701	B	28 March 2024	North Western Surveys*
Internal Catchment Plan	702	B	5 May 2025	North Western Surveys
Basin Catchment Plan	703	B	5 May 2025	North Western Surveys
Basin Typical Details	704	B	5 May 2025	North Western Surveys
Lot Calculation & Landscaping Plan	901	C	5 May 2025	North Western Surveys
Swept Parth Plan	902	B	5 May 2025	North Western Surveys
Amended Subdivision Plan
Plan of Proposed Subdivision	1	00	21 August 2025	North Western Surveys
Easement Plans
Plan of Easements over Lot 827 in DP1283771	-	20815_EASE	11 August 2025	George Stojanovski
Plan of Easements over Lot 827 in DP1283771	-	20815_EASE	11 August 2025	George Stojanovski
Easement Administration Sheet	-	-	11 August 2025	George Stojanovski
Section 88B Instrument	-	-	11 August 2025	-
Reports and Advice
Addendum Traffic Report	-	23317	30 June 2025	Varga Traffic Planning
Other
Updated Owner’s Consent (5 Tenth Avenue)	-	-	19 August 2025	-

*Plans formed part of the original development application and remain part of the amended bundle of plans for completeness.

52. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, as agreed or assessed.

2. The appeal is upheld.

3. Development Application No DA-642/2023 as amended for the subdivision of an existing lot into three Torrens Title lots over two stages, including vegetation removal, construction of roads and associated civil works on the land legally described as Lot 3 in Deposited Plan 1250100, known as 1 Twenty Ninth Avenue, Austral NSW 2179 is determined by the grant of development consent subject to the conditions at Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A (2.58 MB, pdf)

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Decision last updated: 14 October 2025