Wack Pty Ltd ATF the Trustee for Martin Road Unit Trust v Liverpool City Council

[2025] NSWLEC 1203

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wack Pty Ltd ATF The Trustee for Martin Road Unit Trust v Liverpool City Council [2025] NSWLEC 1203

Hearing dates:

21 and 24 March 2025

Date of orders:

24 March 2025

Decision date:

24 March 2025

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   Leave is granted to amend Development Application number DA-723/2022, to rely on those plans and documents comprising Exhibit A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment, as agreed or assessed.

(3)   The appeal is upheld.

(4)   Development Application number DA-723/2022, as amended, for the demolition of existing buildings, remediation of site, construction of gravel hardstand areas, short term office, short term use as a depot at 50 Martin Road, Badgerys Creek, is determined by the grant of consent, subject to the conditions at Annexure A.

(5) The consent granted by Order 3 is a time limited consent by way of a condition of consent imposed under sections 4.17(d) and (e) of the Environmental Planning and Assessment Act 1979.

Catchwords:

APPEAL – development application – construction of a depot – temporary use

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.13, 4.15, 4.17, 4.47, 8.7; Sch 1, s 8A

National Parks and Wildlife Act 1974

Sydney Water Corporation Act 1994, s 78

Water Management Act 2000

Environmental Planning and Assessment Act Regulation 2021, ss 35, 66

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9 ss 9.4, 9.5

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Ch 4, Pts 4.4, 4.5, ss 4.26, 4.27, 4.28, 4.28B, 4.31, 4.39, 4.49 4.28, 4.28B, 4.31; Sch 2, Div 1, Pt 4.7

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

Standard Instrument—Principal Local Environmental Plan

Texts Cited:

Liverpool Aerotropolis S7.12 Contributions Plan 2024

NSW Department of Planning and Environment, Recognise Country: Guidelines for development in the Aerotropolis, November 2022

Western Sydney Aerotropolis Precinct Plan 2024

Category:

Principal judgment

Parties:

Wack Pty Ltd ATF The Trustee for Martin Road Unit Trust (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
H Grace (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
K&L Gates (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/00065438

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal by Wack Pty Ltd ATF The Trustee for Martin Road Unit Trust under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Liverpool City Council’s refusal of development application DA-723/2022 (development application).

Proposal

2. The development application, as amended, seeks consent for the demolition of existing buildings, remediation, and construction of gravel hardstand areas; and a temporary office for temporary utilisation as a depot at 50 Martin Road, Badgery’s Creek (Lot 6 in Deposited Plan DP226448) (the site).

3. Three, separate gravel areas accessed by sealed driveways are proposed; and the eastern portion of the site, as envisaged, will accommodate 30 car spaces (inclusive of 1 accessible space, and 1 turning bay at the north- eastern corner of the parking area).

4. Three, separate temporary office buildings (with dimensions of 12.2m by 12.2m) correlated to each of the three gravelled areas – with a temporary toilet building nearby – are indicated on the proposal.

5. It is proposed the existing, single storey dwelling house be retained and used for the storage of equipment, tools, and such.

6. North-east of the above dwelling house, a “mining dome” building exists, which will be used for the storage of equipment and machinery.

7. The existing building located near the front boundary, under plans in Ex B, will be demolished to allow the works associated with gravel area No 1; and pertaining to this, vehicular access to the site will be widened to 6.5m to allow use by standard and heavy vehicles.

8. An acoustic mound barrier with a high of 1.8m is proposed along the northern and southern boundaries as part of planned landscaping.

9. The proposed depot is a component of delivering the Western Sydney (Nancy Bird Walton) Internation Airport development as the depot will house vehicles and machinery associated with the works currently being undertaken within the airport.

10. The proposed operating hours are:

1. 7:00am to 6:00pm, Monday – Saturday; and

2. 8:00am to 6:00pm, Sunday and Public Holidays.

Figure 1: Figure 11 from the Aboriginal Cultural Heritage Assessment Report of the revised extent of 50 Martin Road

The Site and environs

11. The site is located on the eastern side of Martin Road, Badgerys Creek and has an area of 22,180m² (2.218ha).

12. Irregular in shape the allotment has a 60.96m frontage, a 390.145m northern boundary and a 355.09m southern boundary. An overhead powerline crosses through the site parallel to its northern boundary (as shown on the plan of survey (Ex A, Tab 5)).

13. Situated about 1.5km from the northeastern corner of the Western Sydney Airport the surrounding area is presently semi-rural but undergoing urbanisation given its close proximity to the airport.

Zoning

14. The site is within two separate land use zones. The western portion, being most of the site area is zoned Enterprise Zone, whilst the eastern slither of the site is zoned Environmental and Recreation under Ch 4 – Western Sydney Aerotropolis of State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (WPC SEPP).

15. The use of the site as a “depot” is not nominated as prohibited and is therefore permitted with development consent within the Enterprise zone. The permissibility of that use within the Environmental and Recreation zone will be dealt with later.

Notification Period

16. The development is nominated as integrated development, for the purposes of s 8A(2) of Sch 1 of the EPA Act and an approval under the Water Management Act 2000 is required ( see s4.46 of the EPA Act).

17. The minimum public exhibition period for a development application for nominated integrated development is 28 days and the development application was publicly exhibited in accord with s 8A(1) of Sch 1 of the EPA Act between 25 August 2022 and 28 September 2022, and one submission was received.

General Terms of Approval

18. Before granting development consent to an application for consent to carry out development, the consent authority must obtain from each relevant approval body the general terms of any approval to be granted in relation to the development (s 4.47(2) of the EPA Act). This section applies to the determination of a development application for development that is integrated development (s 4.47(1) of the EPA Act). The Council has sought and received comments on the development application from the following external agencies:

1. Sydney Water dated 6 September 2022;

2. Department of Planning & Environment – Water (DPE) dated 14 December 2022;

3. Endeavour Energy dated 31 August 2022;

4. Heritage NSW dated 6 October 2023; and

5. NSW Rural Fire Service (RFS) dated 5 September 2022.

19. The Council and the Court is satisfied that all required General Terms of Approval (GTA) provided and have been taken into account in the preparation of the proposed conditions of consent.

Design Excellence

20. The Site is greater than 10,000m² (s 4.31(1) of the WPC SEPP), under s 4.31(2) of the WPC SEPP, therefore development consent must not be granted to the development application unless:

1. the design review panel reviews the development;

2. the consent authority takes into account its findings; and

3. the consent authority is of the opinion that the development exhibits design excellence.

21. The Council's Design Excellence Panel (Panel) considered the development application at a meeting on 10 August 2023 and made certain recommendations.

22. The Applicant has adopted the recommendations of the Panel in its Landscape Plan Set prepared by Sturt Noble Associates dated 11 November 2024 (Amended Landscape Plans).

23. After a consideration of the recommendations of the Panel and the Amended Landscape Plans I am satisfied that the development exhibits design excellence in accordance with the WPC SEPP, subject to the imposition of Condition 2, which limits the period of operation of the consent.

Western Sydney Aerotropolis Precinct Plan

24. The Western Sydney Aerotropolis Precinct Plan (Precinct Plan) is given force under Pt 4.7, Div 1 of the WPC SEPP, and provides place-based objectives and requirements for development within the Western Sydney Aerotropolis (Aerotropolis). The site is located within the Badgerys Creek Precinct.

25. Section 4.39 of the WPC SEPP states that development consent must not be granted to development on land to which the Precinct Plan applies, unless the consent authority is satisfied that the development is consistent with the Precinct Plan.

26. The Council is satisfied that the development of this short-term use is consistent with the objectives of Part 5.5 Temporary Land Uses of the Precinct Plan. It submits, that if approved, the development will not hinder the achievement of the intended uses under the Precinct Plan in the future. In this regard, a condition of consent, pursuant to ss 4.17(1)(d) and 4.17(1)(e) of the EPA Act, has been imposed limiting the use of the site for the purposes of a depot, and requiring that all buildings and structures approved under the consent are to be removed and that the detention basins are decommissioned and returned to pre-development levels by 31 December 2030.

27. Part 1.3 of the Precinct Plan requires Council when assessing a development application to consider whether the application is accompanied by an assessment of consistency with the Western Sydney Aerotropolis Plan (Aerotropolis Plan), and the Precinct Plan as required by s 35 of the Environmental Planning and Assessment Act Regulation 2021 (EPA Regulation).

28. In this case the development application does include an assessment of its consistency with the Aerotropolis Plan, Precinct Plan and Western Sydney Aerotropolis Development Control Plan 2022 in accord with s 35 of the EPA Regulation.

29. Based on the above and the evidence before the Court I am therefore satisfied that the development complies with the requirements of s 4.39 of the WPC SEPP and s 35 of the EPA Regulation.

Public Utility Infrastructure

30. As the development application seeks consent for an industrial purpose, under s 4.49 of the WPC SEPP development consent must not be granted unless the consent authority is satisfied that:

1. public utility infrastructure that is essential for the development is available, or

2. the public utility infrastructure will be available when required.

31. Correspondence from Sydney Water dated 6 September 2022 confirms that the site is serviced by Sydney Water's potable watermain. The site will also be serviced by Aerated Wastewater Treatment System and a soil absorption bed. Sydney Water has also recommended certain conditions of consent be imposed, and these are incorporated into Condition 7.

32. The site is currently connected to the electricity network. However, in accordance with the recommendation of Endeavour Energy on 31 August 2022 a further Condition 6 has been incorporated into the agreed conditions.

33. For the above reasons I am satisfied on the evidence that the requirements of s 4.49 of the WPC SEPP have been achieved.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

34. Chapter 9 Hawkesbury-Nepean River of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the site.

35. Chapter 9 aims to protect the environment of the Hawkesbury-Nepean River system by ensuring that the impacts of future land uses are considered in a regional context.

36. Sections 9.4 and 9.5 contain provisions that are relevant considerations in the assessment of this DA. Following such consideration I am satisfied on the evidence that:

1. the development is consistent with the aims of Ch 9 of the Biodiversity and Conservation SEPP.

2. the development is consistent with the strategies listed in the Action Plan of the Hawkesbury Nepean Environmental Planning Strategy, and at s 9.5 of the Biodiversity and Conservation SEPP.

3. any feasible alternatives to the development have been considered.

4. the relationship between the impacts of the amended development application and the environment will be adequately addressed and monitored under the term of the consent.

37. Accordingly I find on the evidence that the development complies with the requirements of the Biodiversity and Conservation SEPP.

Contentions

38. During the hearing on 21 March 2025 the Applicant tendered Ex B - Resolution of Statements of Facts and Contentions which the parties submit identifies how each of the original contentions raised in the appeal have been satisfactorily addressed. In that regard, I note the following:

Contention 1

39. The Council originally contended that there was insufficient information addressing contamination and remediation issues.

40. Based on the conclusions of the Remedial Action Plan prepared by Sydney Environmental Group dated 9 February 2022 (Ex A, Tab 19) and the Site Validation Report prepared by Sydney Environmental Group dated 23 February 2023 (Ex A, Tab 21) submitted as part of the amended DA and the imposition of Conditions 2 and 60, I am satisfied that the site has been made suitable for the proposed use and has been remediated in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

Contention 2

41. At the time of the Statement of Facts and Contentions filed 8 May 2023 (SOFAC) Council raised the contention that they had not received a response from Sydney Water Corporation pursuant to s 78 of the Sydney Water Corporation Act 1994.

42. The correspondence from Sydney Water on 6 September 2022 has addressed this contention and I accept that s 78 of the Sydney Water Act 1994 is satisfied.

Contention 3

43. Council submitted at Contention 3 of the SOFAC that the development application did not adequately assess the impacts on archaeological and cultural values and significance.

44. The evidence is that the site does not comprise any items of environmental heritage either:

1. Listed at Sch 2 Environmental Heritage – Western Sydney Aerotropolis of the WPC SEPP; or

2. Mapped on the WPC SEPP Heritage Map— Aerotropolis (Sheet HER_1).

45. However, An Aboriginal Heritage Due Diligence Assessment prepared by Artefact dated 1 June 2022 identified that a part of the site that is external to the development footprint is mapped as 'Aboriginal cultural sensitivity – high'.

46. In accordance with s 4.26(9) of the WPC SEPP, on 22 August 2022, the Council notified the Gandangara Local Aboriginal Land Council of the proposed development . No response was received.

47. The Applicant has prepared an Aboriginal Cultural Heritage Assessment Report (ACHAR) and Archaeological Technical Report (ATR) which was referred to the Office of Environment and Heritage (OEH) by the Council.

48. On 6 October 2023, Heritage NSW provided GTA in relation to the development application.

49. The parties submit that the Applicant has considered the Recognise Country: Guidelines for development in the Aerotropolis in accordance with s 4.28B of the WPC SEPP through the “Recognise Country Response Temporary Development of 50 Martin Road, Badgerys Creek” dated March 2025 prepared by Kayandel which identifies opportunities and strategies for incorporating Country into the design of the subject development.

50. I have considered the Guidelines and am satisfied with the Response, subject to Condition 2, which limits the period of operation of the consent.

51. Accordingly, all assessment and notification requirements in accordance with ss 4.26 and 4.28B of the WPC SEPP and s 4.15 of the EPA Act have been actioned.

Contention 4

52. Contention 4 stated that the development application did not adequately address stormwater management associated with the development.

53. The parties submit and I am satisfied that the development application adequately addresses stormwater management concerns associated with the development through the Amended Civil Engineering Plans (Ex A, Tab 3) and Conditions 1 and 37.

Contention 5

54. The Council submitted in Contention 5 that the development application proposed prohibited works within the Environmental and Recreation zone.

55. As mentioned above at [18] a small part of the site is zoned Environmental and Recreation under Ch 4 of the WPC SEPP which prohibits Depot works. The parties submit that the development application does not propose any works within the Environmental and Recreation Zone (see Zoning Plan” dated 27 April 2023 (Ex A, Tab 5)) and thus the development application is not prohibited. Furthermore, the Vegetation Management Plan at Condition 171 demonstrates the use of the land in the Environmental and Recreation Zone.

56. Therefore, I am satisfied that the development application is not prohibited as there are no proposed works in the Environmental and Recreation Zone.

Contention 6

57. Council submitted in the SOFAC that the development application did not adequately detail the expected period of use.

58. The parties submit and I accept that the imposition of Condition 2 makes it abundantly clear that the development is subject to a time limited consent (short term use). The conditions provides:

“Time Limited Consent Only

The development approved pursuant to this consent, namely the use of the subject site for the purposes of a depot (as defined in the NSW Standard Instrument—Principal Local Environmental Plan at time of consent) is permitted to be carried out until 31 December 2030. Beyond 31 December 2030, no approval is granted for the land use as a depot. Written notification shall be provided to Council that the use of the site as a depot has ceased by 2 January 2031.

The buildings and structures (for example, acoustic barriers) approved by this development application are to be removed by 31 December 2030. In addition, the detention basins shall be returned to their pre-development levels by 31 December 2030. Written notification shall be provided to Council by 2 January 2031 that the buildings and structures have been demolished and required changes to site levels have been completed.

Reason: Council is only satisfied that the development exhibits design excellence pursuant to Part 4.5 of State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (“WPC SEPP”), and that the application has adequately addressed Recognise Country: Guidelines for development in the Aerotropolis pursuant to section 4.28B of the WPC SEPP, if the development is carried out for no longer than the period given within this condition. If the development were known to be carried out for a longer period, including for an unlimited time period, then Council would not have reached this state of satisfaction. Further, the concurrence from Transport for NSW, pursuant to section 4.27 of the WPC SEPP, is based on an understanding that the development will be delivered in a manner that will enable the structures to be removed once the depot is no longer required.

Council is only satisfied that the development is acceptable and that the relevant variations to the Western Sydney Aerotropolis Precinct Plan are justified on the basis of the temporary nature of the proposal (noting the inconsistences with parts 3.2, 4.1, 4.2, 4.5. 4.6 of the Precinct Plan). If the development was to be modified such that it could be carried out for longer than the period given within this condition (to the end of 2030), including for an unlimited time period, then the requirements for, and compliance with , the Precinct Plan would be reconsidered. In addition to this,  the minor upgrade roadworks required by this consent to facilitate the approved development have only been deemed satisfactory having regard to the temporary nature of the use.”

Contention 7

59. Contention 7 in the SOFAC stated that the contribution plan had not been approved for the subject land as shown on the Land Application Map under Ch 4 of the WPC SEPP.

60. The parties submit that pursuant to s 66 of the EPA Regulations the Liverpool Aerotropolis S7.12 Contributions Plan 2024 is now in force for land shown on the Land Application Map under Ch 4 of the WPC SEPP.

61. On that basis Condition 20 can be lawfully imposed to require a contribution to be paid in accordance with this plan for the proposed development.

Contention 8

62. Council originally contended in the SOFAC that the consent authority had not obtained the concurrence of TfNSW.

63. Under s 4.27(1) of the WPC SEPP, development consent must not be granted to development which:

1. is on transport corridor land with a capital investment value of more than $200,000; or

2. involves penetration of ground to depth of at least 2m below ground level and within 25m of transport corridor land,

unless the consent authority has received concurrence from TfNSW.

64. The Cost Report submitted with the development application nominates the total cost of works to be $529,000 and the evidence is that the site is shown in the WPC SEPP Transport Corridors Map as being impacted by a 60m arterial road.

65. In accordance with s 4.27 of the WPC SEPP and s 4.13 of the EPA Act TfNSW provided its concurrence to the development application on 7 August 2023 stating it has no objections to the development application in consideration of the requirements of s 4.27(2) of the WPC SEPP, subject to Condition 2, which limits the period of operation of the consent.

Contention 9

66. Contention 9 of the SOFAC stated that approval of the proposed development was not in the public interest.

67. The parties submit and I am satisfied that for the reasons outlined that an approval of the proposed development is in the public interest.

Contention 10

68. The Council originally submitted in their SOFAC that the development application should be refused as the documentation provided was considered to be inadequate to carry out a proper assessment.

69. The parties submit that adequate documentation has since been provided to carry out a proper assessment.

70. In particular, I note that an amended Operational Noise Assessment has been submitted (Ex A, Tab 9) setting out the number of vehicle movements proposed within the peak hours.

71. Importantly, the numbers recorded in Section 9.2 of the amended Operational Noise Assessment are consistent with the Traffic Impact Assessment for in vehicle movements within peak hours namely:

1. Fifteen for heavy vehicles; and

2. Twenty five for light vehicles.

72. The development drawings include sufficient detail necessary to enable a full assessment. The proposed civil drawings (Ex A, Tab 3) include the following information:

1. Setbacks of proposed buildings and hardstand areas to boundaries;

2. Elevations for the proposed buildings which are to include but not limited to; finished floor levels, wall heights and buildings heights (Renders are insufficient); and

3. Sections of the development site demonstrating the extent of the proposed earthworks.

Conclusion

73. I recognise the proposed development is a component of delivering the Western Sydney (Nancy-Bird-Walton) International Airport development, associated with works being undertaken within the Airport precincts. With this in mind: and having considered the merits of the application against the relevant controls on the evidence – including the comprehensive compliance tables report within (Ex A); and, subject to the imposition of the council’s conditions, for the reasons outlined I am satisfied that the development should be granted consent.

Orders

74. Accordingly, the Court orders that:

1. Leave is granted to amend Development Application number DA-723/2022, to rely on those plans and documents comprising Exhibit A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment, as agreed or assessed.

3. The appeal is upheld.

4. Development Application number DA-723/2022, as amended, for the demolition of existing buildings, remediation of site, construction of gravel hardstand areas, short term office, short term use as a depot at 50 Martin Road, Badgerys Creek, is determined by the grant of consent, subject to the conditions at Annexure A.

5. The consent granted by Order 3 is a time limited consent by way of a condition of consent imposed under sections 4.17(d) and (e) of the Environmental Planning and Assessment Act 1979.

S Dixon

Senior Commissioner of the Court

Annexure A

**********

Amendments

03 April 2025 - Amendment made to par [64] to fix typographical error.

Decision last updated: 03 April 2025