Redsab Pty Ltd v Liverpool City Council

[2025] NSWLEC 1337

Land and Environment Court

New South Wales

Medium Neutral Citation:

Redsab Pty Ltd v Liverpool City Council [2025] NSWLEC 1337

Hearing dates:

Conciliation Conference 14 April and 6 May 2025

Date of orders:

19 May 2025

Decision date:

19 May 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Development Consent No. DA-203/2022 is modified in the terms in Annexure A.

(3) Development Consent No. DA-203/2022 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification of consent – child care centre - increase in number of children – substantially the same development - 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 113

State Environmental Planning Policy (Transport and Infrastructure) 2021, ch 3

Cases Cited:

Redsab Pty Ltd v Liverpool City Council [2022] NSWLEC 1689

Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31

Texts Cited:

Liverpool City Council Community Engagement Strategy 2022

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
T Poisel (Applicant)
J Garcia (Solicitor)(Respondent)

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

File Number(s):

2025/68654

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) being an application to the Court to modify a Development Consent granted by the Court (Modification Application).

2. On 13 December 2022, the Court delivered judgment in Redsab Pty Ltd v Liverpool City Council [2022] NSWLEC 1689, granting consent to development application DA-203/2022 for the demolition of existing structures on site, excavation, tree removal and the construction of a 127 place childcare centre with basement carking and associated works (the Consent) at 88-90 Woodlands Road, Liverpool and 34 Marsden Road, Liverpool legally described as Lots 3, 2 and 1 in DP 23856 (the Site). The Consent was a result of an agreement reached between the parties and in accordance with s 34(3) of the Land and Environment Court Act 1979 (LEC Act).

3. The Modification Application seeks to increase the number of children to 135, increase the outdoor play area and associated condition amendments.

4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties held on 14 April and 6 May 2025. I presided over the conciliation conference which commenced on Site and was adjourned to enable the Respondent to comply with its obligations to notify the Modification Application in accordance with the Liverpool City Council Community Engagement Strategy 2022.

5. The parties’ experts agree that all contentions raised in the SOFAC have been resolved by the preparation of the following:

1. Amended plans and documents referred to at [19]; and

2. Agreed conditions of consent.

6. 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 modifying the granting consent subject to conditions.

7. 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.

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

9. 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 and ch 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the Court.

10. Notification to adjoining properties was undertaken by the Respondent in order to comply with s 4.55(8) of the EPA Act which requires the relevant consent authority to exercise the functions contained within subs 4.55(1A)(c) or subss 4.55(2)(b) and (c) of the EPA Act.

11. The modification application was notified in accordance with the Respondent’s Community Participation Plan between 15 April 2025 and 2 May 2025. One submission was received raising concerns with respect traffic and safety. In that regard, the parties explain that they have considered the objector’s submission and they rely on the Traffic & Parking Impact Assessment 29 May 2023 prepared by Hemanote Consultants which notes that the access driveways are to provide one-way vehicular movements without causing delays or congestions to traffic on the street and a separate pedestrian access gate is also provided at the front of the Site in Woodlands Road, to segregate pedestrian and vehicles and improve safety within the Site.

12. Chapter 3 of the Transport and Infrastructure SEPP provides a consistent planning regime for the effective delivery of educational establishments and early education and care facilities across the State. The relevant provisions of this chapter were considered to be complied with, under the Consent.

13. The Modification Application proposes an increase in the number of child care places from 127 to 135 and accommodates the increase in the child care places through increasing the number of educators, as well as the unencumbered outdoor play area. The outdoor play area remains compliant.

14. The Court can be satisfied that the proposed modified development is substantially the same as the development approved under the Development Consent noting the nature and characterisation of the development as a childcare centre remains the same: Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31.

15. The nature of the changes to the proposed modification plans (as compared to those approved under the Development Consent) are as follows:

1. Increase the number of childcare places from one hundred and twenty seven (127) to one hundred and thirty five (135) places (Compliance Table Drawing 02);

2. Decrease the indoor play area from 457m² to 454m² (Ground Floor Calculation Plan Drawing 16);

3. Increase the unencumbered outdoor play area from 910m² to 947m² (Ground Floor Calculation Plan Drawing 16);

4. Include of a crash barrier within part of the eastern boundary (Ground Floor Drawing 07);

5. Increase the number of educators from nineteen (19) to twenty-one (21) (Compliance Table Drawing 02).

16. The height, bulk and scale of the development remains the same (including the basement), the only proposed changes to the development are minimal in nature, and relate to an increase in child care places and consequent updates to the plans as a result.

17. 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. I adopt the reasons given by the parties if they are appropriate.

18. 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:

19. The Court notes:

1. The Respondent, as the relevant consent authority, has approved under s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA-203/2022 in accordance with the following amended plans:

Tab Document Ref No. Prepared by Ver. Date

1.	Architectural Plans
	Cover Page	01	Baini Design	J	26 Mar 2025
	Compliance Table	02	Baini Design	J	26 Mar 2025
	Site Context	03	Baini Design	J	26 Mar 2025
	Demolition Plan	04	Baini Design	J	26 Mar 2025
	Site Plan	05	Baini Design	J	26 Mar 2025
	Basement Floor	06	Baini Design	J	26 Mar 2025
	Ground Floor	07	Baini Design	J	26 Mar 2025
	First Floor	08	Baini Design	J	26 Mar 2025
	Elevations	09	Baini Design	J	26 Mar 2025
	Elevations	10	Baini Design	J	26 Mar 2025
	Sections	11	Baini Design	J	26 Mar 2025
	Sections	12	Baini Design	J	26 Mar 2025
	Streetscape	13	Baini Design	J	26 Mar 2025
	Fencing Plan	14	Baini Design	J	26 Mar 2025
	Crash Barrier Details	15	Baini Design	J	26 Mar 2025
	Ground Floor Calculation Plan	16	Baini Design	K	14 Apr 2025
2.	Landscape Plans
	Landscape Concept	L-01	Outside In Design Group	H	04 April 2025
	Section A-A	L-02	Outside In Design Group	H	04 April 2025
	Fence + Planting Details	L-03	Outside In Design Group	H	04 April 2025

Orders:

20. The Court orders:

1. The Appeal is upheld.

2. Development Consent No. DA-203/2022 is modified in the terms in Annexure A.

3. Development Consent No. DA-203/2022 as modified by the Court is Annexure B.

E Espinosa

Commissioner of the Court

Annexure A (180 KB, pdf)

Annexure B (391 KB, pdf)

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Decision last updated: 19 May 2025