Liverpool 888 Pty Ltd v Liverpool City Council

[2025] NSWLEC 1009

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Liverpool 888 Pty Ltd v Liverpool City Council [2025] NSWLEC 1009

Hearing dates:

Conciliation Conference held 17 December 2024

Date of orders:

14 January 2025

Decision date:

14 January 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2)   Development Consent DA-929/2022 is modified in the terms at Annexure A.

(3)   Development Consent DA-929/2022 as modified by the Court is at Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification of consent – child care centre – increase in number of children –no increased impact – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.55

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 98

Cases Cited:

Liverpool 888 Pty Ltd v Liverpool City Council [2023] NSWLEC 1208

Texts Cited:

Liverpool City Council Community Engagement Strategy and Participation Plan 2022

Category:

Principal judgment

Parties:

Liverpool 888 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

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

Solicitors:
Miller & Prince Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/263561

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Application pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) being a Modification Application to the Court to modify the consent DA929/2022 granted by the Court in Proceedings No 2022/301839, Liverpool 888 Pty Ltd v Liverpool City Council [2023] NSWLEC 1208 on 4 May 2023 for demolition of existing structures and the construction of a six-storey mixed use development comprising of ground floor commercial premises, a 112-place childcare facility and at grade parking (the Consent) at 156 Terminus Street, Liverpool, legally described as Lot 31 in DP555028 (the Site). The Modification Application seeks to modify the Consent as follows:

1. Addition of one storey to the approved mixed use building;

2. Increase in the capacity of the child care centre within the approved mixed use building from 112 places to 127 places; and

3. Minor amendments to the internal layouts of the approved mixed use development required to satisfy the Building Code of Australia, including fire safety amendments.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17 December 2024. I presided over the conciliation conference.

3. The parties’ experts agree that all contentions raised in the Statement of Facts and Contentions (SOFAC) have been resolved by the preparation of the:

1. Amended plans and documents listed at [18]; and

2. Agreed conditions of consent at Annexure A.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and approving the modification to the consent, subject to conditions.

5. 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.

6. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to modify a consent.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent.

8. The Modification Application is lodged pursuant to s 4.55(8) of the EPA Act. The Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act.

9. The land is owned by the Applicant: s 98 Environmental Planning and Assessment Regulation 2021.

10. The provisions of s 4.55(8) extend the provisions of s 4.55 to enable the Court to modify the Approved Development Consent.

11. Section 4.55(2) of the EPA Act provides as follows:

“(2)    Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)    it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)    it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)    it has notified the application in accordance with—

(i)    the regulations, if the regulations so require, or

(ii)    a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)    it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.”

12. In the recent decision of Preston CJ in Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 (‘Realize Architecture’), the Court found that whilst there may be quantitative and qualitative differences between a modification application and original consent, the focus of the test in s 4.55(2) should be “a holistic one of the two developments being compared” and assess the overall ‘balance’ between the original and modified development.

13. The Applicant relies on a Statement of Environmental Effects prepared by GAT & Associates dated July 2024 (SEE), filed with the Class 1 Application and on the Town Planning Response to the Statement of Facts and Contentions prepared by GAT & Associates dated 4 October 2024 which provides the following opinions which I adopt as summarised below:

1. The nature of the use, which is that of a mixed-use development, with commercial on the ground floor and a child-care centre above, is unchanged. The nature of the uses of all floors will remain as approved, even with the addition of an extra storey, which is to be utilised as an indoor and outdoor play area for the childcare centre. The intended use of upper levels of the development is that of child care, which remains the same as the original approval.

2. While the intensity of the Site, in terms of height, floor area, children, and staff numbers, has increased quantitatively, it is considered that this is relatively minor to what was originally approved. Numerically, this is relatively minor and within the same realm as what was approved as follows:

1. The height will increase by a maximum of 11%;

2. The floor area will increase by 6%;

3. The child numbers will increase by a maximum of 13%, and the staff numbers will increase by a maximum of 5%.

3. The general relationship to adjoining properties will remain as approved, as the minimum setback distances to all boundaries are retained.

4. In qualitative terms, the relationship of a childcare centre at upper levels to neighbouring uses will be unchanged.

5. In quantitative terms, while the intensity of the use has increased, the overall essence of the proposed use, that of a child care centre, which is a noise-generating development, will remain. In that regard, no adverse amenity impacts will result from the changes to the Consent. No unreasonable solar access impacts will occur to new, existing, or approved development within proximity of the Site.

6. While the streetscape of the development is altered with the addition of a storey, this is not classed as significant, as the building remains compatible with the nature of development within the streetscape. As the development does not result in a significant change in scale it retains the character of the area. I have also had regard to and undertaken a visual comparison of the North Elevation drawing 16 Rev G and Rev F and reach the same conclusion.

14. Accordingly, and for these reasons, I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified.

15. The Modification Application was notified in accordance with the Respondent’s Community Engagement Strategy and Participation Plan 2022 between 5 September 2024 and 20 September 2024. No submissions were received during the notification period: s 4.55(2)(c) and (d) EPA Act.

16. 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.

17. 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.

Notations

18. The Court notes that:

1. The Respondent, as the relevant consent authority, has agreed under s 113(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Modification Application No. DA-929/2022/A in accordance with the following amended plans and documents (Amended Application):

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1.	Drawing No. 01, Revision H	Compliance Table	Baini Design	27 September 2024
	Drawing No. 02, Revision H	Site Context Plan
	Drawing No. 03, Revision H	Site Analysis Plan
	Drawing No. 04, Revision H	Demolition Plan
	Drawing No. 05, Revision H	9 AM Shadow Diagram
	Drawing No. 06, Revision H	12 PM Shadow Diagram
	Drawing No. 07, Revision H	3 PM Shadow Diagram
	Drawing No. 08, Revision H	Site Plan
	Drawing No. 09, Revision H	Ground Floor
	Drawing No. 10, Revision H	Level 1
	Drawing No. 11, Revision H	Level 2
	Drawing No. 12, Revision H	Level 3
	Drawing No. 13, Revision H	Level 4
	Drawing No. 14, Revision H	Level 5
	Drawing No. 15, Revision H	Level 6
	Drawing No. 15.1, Revision H	Roof Plan
	Drawing No. 16, Revision H	Elevations
	Drawing No. 17, Revision H	Elevations
	Drawing No. 18, Revision H	Elevations
	Drawing No. 19, Revision H	Sections
	Drawing No. 20, Revision H	Kitchen and Laundry Detail
	Drawing No. 21, Revision H	Typical Nappy Change Detail
	Drawing No. 22, Revision H	Craft Bench Detail
	Drawing No. 23, Revision H	Bottle Prep Detail
	Drawing No. 24, Revision H	Schedule of Finishes
	Drawing No. 25, Revision H	Calc Plan – Indoor Play Area – Level 1
	Drawing No. 26, Revision H	Calc Plan – Indoor Play Area – Level 2
	Drawing No. 27, Revision H	Calc Plan – Indoor Play Area – Level 3
	Drawing No. 28, Revision H	Calc Plan – Indoor Play Area – Level 4
	Drawing No. 29, Revision H	Calc Plan – Indoor Play Area – Level 5
	Drawing No. 29.1, Revision H	Calc Plan – Indoor Play Area – Level 6
	Drawing No. 30, Revision H	Fencing Details – Level 1
	Drawing No. 30.1, Revision H	Fencing Details – Level 2
	Drawing No. 30.2, Revision H	Fencing Details – Level 3
	Drawing No. 30.3, Revision H	Fencing Details – Level 4
	Drawing No. 30.4, Revision H	Fencing Details – Level 5
	Drawing No. 30.5, Revision H	Fencing Details – Level 6
	Drawing No. 32, Revision H	3D Views
	Drawing No. 33, Revision H	GFA Ground Floor
	Drawing No. 34, Revision H	GFA Level 1
	Drawing No. 35, Revision H	GFA Level 2
	Drawing No. 36, Revision H	GFA Level 3
	Drawing No. 37, Revision H	GFA Level 4
	Drawing No. 38, Revision H	GFA Level 5
	Drawing No. 38.1, Revision H	GFA Level 6
	Drawing No. 39, Revision H	VFS
	Drawing No. 40, Revision H	VFS
	Drawing No. 41, Revision H	VFS
	Drawing No. 42, Revision H	VFS
	Drawing No. 43, Revision H	VFS
	Drawing No. 44, Revision H	Solar Study – 8am
	Drawing No. 45, Revision H	Solar Study – 8am
	Drawing No. 46, Revision H	Solar Study – 8am
	Drawing No. 47, Revision H	Solar Study – 9am
	Drawing No. 48, Revision H	Solar Study – 9am
	Drawing No. 49, Revision H	Solar Study – 9am
	Drawing No. 50, Revision H	Solar Study – 10am
	Drawing No. 51, Revision H	Solar Study – 11am
	Drawing No. 52, Revision H	Solar Study – 10am
	Drawing No. 53, Revision H	Solar Study – 11am
	Drawing No. 54, Revision H	Solar Study – 11am
	Drawing No. 55, Revision H	Solar Study – 11am
	Drawing No. 56, Revision H	Solar Study – 12 Noon
	Drawing No. 57, Revision H	Solar Study – 12 Noon
Drawing No. 58, Revision H	Solar Study – 12 Noon
Drawing No. 59, Revision H	Solar Study – 1pm
Drawing No. 60, Revision H	Solar Study – 1pm
Drawing No. 61, Revision H	Solar Study – 1pm
Drawing No. 62, Revision H	Solar Study – 2pm
Drawing No. 63, Revision H	Solar Study – 2pm
Drawing No. 64, Revision H	Solar Study – 2pm
Drawing No. 65, Revision H	Solar Study – 3pm
Drawing No. 66, Revision H	Solar Study – 3pm
Drawing No. 67, Revision H	Solar Study – 3pm
Drawing No. 68, Revision H	Solar Study – 4pm
Drawing No. 69, Revision H	Solar Study – 4pm
Drawing No. 70, Revision H	Solar Study – 4pm
Drawing No. 71, Revision H	Level 1 166-176 Terminus 8AM-9AM Shadows
Drawing No. 72, Revision H	Level 1 166-176 Terminus 10AM-11AM Shadows
Drawing No. 73, Revision H	Level 1 166-176 Terminus 12 Noon – 1PM Shadows
Drawing No. 74, Revision H	Level 1 166-176 Terminus 2PM – 3PM Shadows
Drawing No. 75, Revision H	Level 1 166-176 Terminus 4PM Shadows
Drawing No. 76, Revision H	Level 2-5 166-176 Terminus 8AM-9AM Shadows
Drawing No. 77, Revision H	Level 2-5 166-176 Terminus 10AM-11AM Shadows
Drawing No. 78, Revision H	Level 2-5 166-176 Terminus 12 Noon – 1PM Shadows
Drawing No. 79, Revision H	Level 2-5 166-176 Terminus 2PM – 3PM Shadows
Drawing No. 80, Revision H	Level 2-5 166-176 Terminus 4PM Shadows
Drawing No. 81, Revision H	Typical Level 6-8 166-176 Terminus
Drawing No. 82, Revision H	166-176 Terminus VFS
Drawing No. 83, Revision H	166-176 Terminus VFS
Drawing No. 84, Revision H	166-176 Terminus VFS
Drawing No. 85, Revision H	Ground Floor - Neighbour Concept
Drawing No. 86, Revision H	Level 1 - Neighbour Concept
Drawing No. 87, Revision H	Level 2 - Neighbour Concept
Drawing No. 88, Revision H	Level 3 - Neighbour Concept
Drawing No. 89, Revision H	Level 4 - Neighbour Concept
Drawing No. 90, Revision H	Level 5 - Neighbour Concept
Drawing No. 91, Revision H	Level 6 - Neighbour Concept
Drawing No. 92, Revision H	Evacuation Plans
Drawing No. 93, Revision H	Evacuation Plans – Sheet 2
Landscape Plans
2.	Drawing No. L – 01, Revision F	Ground Floor Landscape Plan	Outside Design Group	4 October 2024
	Drawing No. L – 02, Revision F	Level 1, 2 + 3 Landscape Plan
	Drawing No. L – 03, Revision F	Level 4 + 5 + 5 Landscape Plan
	Drawing No. L – 04, Revision F	Section A-A Playground Areas
	Drawing No. L – 04, Revision F	Terminus St Elevation B-B
Reports
3.	Supplementary Traffic Advice of Mixed-Use Development		McLaren Traffic Engineering	14 November 2024
4.	Environmental Noise Impact Assessment		Day Design	4 October 2024
5.	Air Quality Addendum		Astute Environmental Consulting	2 October 2024
6.	Plan of Management		GAT & Associates	4 November 2024
7.	Town Planning Response SOFAC		GAT & Associates	4 October 2024
8.	Detailed Site Investigation		Australian Geoenviro	28 October 2024
9.	Report on proposed amendments to approved child care service at: 156 Terminus Street Liverpool NSW		Early Education Solutions	4 October 2024
10.	Cost Report		Rubix	25 June 2024

Orders

19. The Court orders:

1. The appeal is upheld.

2. Development Consent DA-929/2022 is modified in the terms at Annexure A.

3. Development Consent DA-929/2022 as modified by the Court is at Annexure B.

E Espinosa

Commissioner of the Court

Annexure A

Annexure B

Architectural Plans Part 1

Architectural Plans Part 2

**********

Amendments

16 January 2025 - Correction made to Representation

Decision last updated: 16 January 2025