Australia, June 18 -- New South Wales Land and Environment Court issued text of the following judgement on May 19:

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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196c6bdd2a478bf26dce1d8f)

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