Mackenzie Architects International Pty Ltd v Liverpool City Council

[2025] NSWLEC 1634

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mackenzie Architects International Pty Ltd v Liverpool City Council [2025] NSWLEC 1634

Hearing dates:

Conciliation conference on 25 August 2025

Date of orders:

03 September 2025

Decision date:

03 September 2025

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA-310/2024 for the demolition of existing dwellings on the subject site and the construction of a five (5) storey in-fill affordable residential flat building across two buildings containing a total of 44 units, including 16 affordable rental units with at grade carparking on land at 15 – 21 Pearce Street, Liverpool is approved, subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – development application – residential flat building containing affordable housing – conciliation conference – agreement reached – orders made

Legislation Cited:

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

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

Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 29, 37, 38

Liverpool Local Environmental Plan 2008, cl 7.31

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9

State Environmental Planning Policy (Housing) 2021, Ch 4, ss 16, 17, 19, 20, 147

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.120

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category:

Principal judgment

Parties:

Mackenzie Architects International Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
K Potter (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)

Solicitors:
Yates Law (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/327178

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing dwellings and the construction of a 5-storey in-fill affordable residential flat building across two buildings containing a total of 44 units, including 16 affordable rental units with at grade carparking on land at 15-21 Pearce Street, Liverpool. The development application was lodged with the respondent on 19 July 2024. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 25 August 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The final agreement was filed on 27 August 2025, and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW). The amendments include changes to the ground level car parking area, improvements to access to the ground floor communal open space, and changes to the roof top communal open space to improve privacy and solar access for neighbouring properties. The amended development application also includes updated stormwater management plans, an updated flood study, an arboricultural impact assessment, a preliminary site investigation, a detailed site investigation and a design verification statement.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed Jurisdictional Statement, the final version of which was provided by email on 27 August 2025. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1. The development is for the purpose of a residential flat building, which is a permissible use in the R4 High Density Residential zone in which the site is located, pursuant to the Liverpool Local Environmental Plan 2008 (LLEP).

2. The proposed development complies with the development standards in the LLEP concerning height and minimum building street frontage.

3. The development application includes earthworks for site preparation and levelling. Based on the Geotechnical Investigation Report dated 30 January 2023 (albeit prepared for architectural plans with a basement, which is no longer sought), I have considered the matters set out in cl 7.31(3) of the LLEP.

4. Whilst the LLEP prescribes a maximum floor space ratio (FSR) development standard, the proposed development proposes in-fill affordable housing to which Div 1 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies, such that it benefits from additional FSR under s 16(2) of the SEPP Housing. The proposed development has a FSR of 1.29:1, which is within the maximum FSR permitted by ss 17(2) and 16 of the SEPP Housing, calculated to be 1.3:1.

5. Section 20(3) of the SEPP Housing requires consideration of “whether the design of the residential development is compatible with” either the desirable elements of the local area, or the desired future character. Based on the Design Verification Statement dated 25 August 2025 and the Statement of Environmental Effects dated 29 May 2024, I consider that the design of the development is compatible with the desired future character of the area.

6. The development application is accompanied by a statement of a qualified designer that verifies the design of the development, the Design Verification Statement dated 25 August 2025, as required by s 29 of the EPA Regulation 2021.

7. Chapter 4 of the SEPP Housing applies to the proposed development. Based on the Design Verification Statement dated 25 August 2025, I have considered the matters required to be considered by s 147(1) of the SEPP Housing.

8. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 2 July 2025. Based on the BASIX certificate, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

9. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated. In addition, a Preliminary Site Investigation dated March 2025 and a Detailed Site Investigation dated June 2025, were prepared in relation to land in Paciullo Park that will be used for stormwater drainage, and conclude that the land is suitable for the development.

10. The site is in a block that is adjacent to the Hume Highway, a classified road, and s 2.120 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) applies. Consistent with the requirements of s 2.120(3), the proposed development is designed to prevent or reduce the impacts associated with road traffic noise and will be carried out in accordance with the recommendations in the Noise Impact Assessment dated 3 May 2024 that will ensure a suitable degree of amenity for residents and other occupants of the proposed development, including compliance with the LAeq levels in s 2.120(3).

11. The site falls within the Georges River Catchment, such that Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the development application. Based on the stormwater management plans, the Stormwater Management Report dated 2 December 2024 and the Flood Study dated 3 December 2024, I am satisfied of the matters in ss 6.6(2), 6.7(2) and 6.8(2). Further, the development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2).

12. The development application was notified from 22 July 2024 to 7 August 2024, and again from 30 August 2024 to 27 September 2024. A total of 7 written submissions were received in response to the two periods of notification. I have considered the issues raised in those submissions, which concern privacy, overlooking, solar access and increased traffic.

6. I note also that s 19 of the SEPP Housing sets out a number of grounds on which consent cannot be refused if certain criteria are met. The proposed development meets the criteria for site area, landscaped area, deep soil zone, solar access, parking spaces, and accommodation size. Accordingly, consent cannot be refused on any of those grounds.

7. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The Court notes:

1. The Liverpool City Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the applicant amending development application No. DA-310/2024 in accordance with the following documents :

1. Architectural plans:

Plan No.	Plan Title	Drawn by	Dated
A0001 (Revision G)	Cover Page	Mackenzie Architects International	26/06/2025
A0004 (Revision G)	Site Plan	Mackenzie Architects International	26/06/2025
A0005 (Revision E)	Demolition Plan	Mackenzie Architects International	19/05/2025
A1001 (Revision F)	Ground Floor Plan	Mackenzie Architects International	17/06/2025
A1002 (Revision E)	First Floor Plan	Mackenzie Architects International	19/05/2025
A1003 (Revision E)	Second Floor Plan	Mackenzie Architects International	19/05/2025
A1004 (Revision E)	Third Floor Plan	Mackenzie Architects International	19/05/2025
A1005 (Revision F)	Fourth Floor Plan	Mackenzie Architects International	17/06/2025
A1006 (Revision E)	Roof Plan	Mackenzie Architects International	19/05/2025
A2001 (Revision F)	North & East Elevations	Mackenzie Architects International	17/06/2025
A2002 (Revision F)	South & West Elevations	Mackenzie Architects International	17/06/2025
A2003 (Revision E)	East & West Int. Facades Elevations	Mackenzie Architects International	19/05/2025
A2004 (Revision E)	Streetscape Elevation	Mackenzie Architects International	19/05/2025
A2101 (Revision E)	Sections	Mackenzie Architects International	19/05/2025
A3001 (Revision F)	GFA Calculations	Mackenzie Architects International	17/06/2025
A3002 (Revision G)	Landscape Calculations	Mackenzie Architects International	26/06/2025
A3003 (Revision G)	Communal Open Space	Mackenzie Architects International	26/06/2025
A3004 (Revision B)	Deep Soil Calculations	Mackenzie Architects International	26/02/2025
A3005 (Revision G)	Building Height Plane	Mackenzie Architects International	26/06/2025
A3006 (Revision G)	Cross-ventilation	Mackenzie Architects International	26/06/2025
A3008 (Revision G)	Sample Board	Mackenzie Architects International	26/06/2025
A3009 (Revision G)	Public Domain Plan	Mackenzie Architects International	26/06/2025
A4001 (Revision G)	Solar Access 9am-12pm	Mackenzie Architects International	26/06/2025
A4002 (Revision G)	Solar Access 1pm-3pm	Mackenzie Architects International	26/06/2025
A4003 (Revision G)	Solar Access Analysis	Mackenzie Architects International	26/06/2025
A4004 (Revision G)	Solar Impact Future Development	Mackenzie Architects International	26/06/2025
A4005 (Revision G)	Solar Access U306	Mackenzie Architects International	26/06/2025
A4101 (Revision G)	Shadow Diagram 9am	Mackenzie Architects International	26/06/2025
A4102 (Revision G)	Shadow Diagram 10am	Mackenzie Architects International	26/06/2025
A4103 (Revision G)	Shadow Diagram 11am	Mackenzie Architects International	26/06/2025
A4104 (Revision G)	Shadow Diagram 12pm	Mackenzie Architects International	26/06/2025
A4105 (Revision G)	Shadow Diagram 1pm	Mackenzie Architects International	26/06/2025
A4106 (Revision G)	Shadow Diagram 2pm	Mackenzie Architects International	26/06/2025
A4107 (Revision G)	Shadow Diagram 3pm	Mackenzie Architects International	26/06/2025

2. Landscape Plans

Drawing No.	Issue	Plan Title	Drawn by	Dated
1 of 5	Issue L	Landscape Site Plan	Paul Scrivener Landscape	20/05/2025
2 of 5	Issue L	Detail Plan	Paul Scrivener Landscape	20/05/2025
3 of 5	Issue L	Planting Plan	Paul Scrivener Landscape	20/05/2025
4 of 5	Issue L	Level 1 & 4 Plan	Paul Scrivener Landscape	20/05/2025
5 of 5	Issue L	Notes & Schedules	Paul Scrivener Landscape	20/05/2025

3. Stormwater Management Plans

Drawing No.	Revision	Plan Title	Drawn by	Dated
21106.DA.C01	Revision H	Drainage Plan	Site Plus Pty Ltd	23/05/2025
21106.DA.C02	Revision H	Catchment Plan	Site Plus Pty Ltd	23/05/2025
21106.DA.C03	Revision H	Driveway Plan	Site Plus Pty Ltd	23/05/2025
21106.DA.C04	Revision H	OSD Details	Site Plus Pty Ltd	23/05/2025
21106.DA.C05	Revision H	Drainage Details	Site Plus Pty Ltd	23/05/2025
21106.DA.C06	Revision H	Drainage Long Sections	Site Plus Pty Ltd	23/05/2025
21106.DA.C07	Revision H	Music Catchment Plan	Site Plus Pty Ltd	23/05/2025
21106.DA.C08	Revision H	Soil & Water Management Plan	Site Plus Pty Ltd	23/05/2025
21106.DA.C09	Revision H	Pearce Street Drainage 1	Site Plus Pty Ltd	23/05/2025
21106.DA.C10	Revision H	Pearce Street Drainage 2	Site Plus Pty Ltd	23/05/2025

4. Stormwater Management Report prepared by Site Plus Pty Ltd dated 2 December 2024;

5. Letter from Site Plus Pty Ltd dated 4 March 2025;

6. Flood Study prepared by Site Plus Pty Ltd dated 3 December 2024;

7. Music Link Report dated 20 November 2024;

8. Arboricultural Impact Assessment & Tree Protection Specification prepared by L&Co Consultancy dated 18 March 2025;

9. Preliminary Site Investigation prepared by Martens & Associates Pty Ltd dated 20 March 2025;

10. Detailed Site Investigation prepared by Martens & Associates Pty Ltd dated 17 June 2025;

11. Letter from Terraffic Pty Ltd dated 20 March 2025;

12. Letter from Design Right Consulting Pty Ltd dated 25 February 2025;

13. Demolition and Construction Waste Management Plan prepared by Elephants Foot Consulting Pty Ltd dated 27 February 2025;

14. Letter from Bridge Housing dated 14 May 2025;

15. BASIX Certificate No. 1749773M_02 prepared by Sustainable Thermal Solutions dated 2 July 2025; and

16. NatHERS Certificate prepared by LivSmart Solutions dated 30 June 2025;

17. Design Verification Statement prepared by Mackenzie Architects Pty Ltd dated 25 August 2025.

2. The applicant filed the amended development application with the Court on 21 August 2025 and the Design Verification Statement was filed on 27 August 2025.

Orders

10. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-310/2024 for the demolition of existing dwellings on the subject site and the construction of a five (5) storey in-fill affordable residential flat building across two buildings containing a total of 44 units, including 16 affordable rental units with at grade carparking on land at 15 – 21 Pearce Street, Liverpool is approved, subject to the conditions contained in Annexure A.

J Gray

Commissioner of the Court

Annexure A (423 KB, pdf)

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Decision last updated: 03 September 2025