Background
Wellness 1 Pty Ltd lodged Development Application No. 548/2024 with Liverpool City Council on 25 November 2024, seeking consent to demolish existing structures and construct a two-storey, centre-based childcare facility for 98 children at 41 Walder Road, Hammondville NSW, with basement parking, landscaping, and associated tree removal. The site is zoned R3 Medium Density Residential under the Liverpool Local Environmental Plan 2008, in which centre-based childcare facilities are permissible with consent. The Council refused the application on 11 September 2024, and the applicant filed a Class 1 appeal in the Land and Environment Court on 27 October 2025 under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW).
A conciliation conference was held on site on 23 February 2026 pursuant to s 34 of the Land and Environment Court Act 1979 (NSW). Five public submissions had been received during the notification period but no submitters attended the on-site view. The conference was adjourned on several occasions to allow the parties to negotiate. In the course of those negotiations the applicant amended its development application to address the Council’s concerns regarding traffic and parking, building height and solar access, and noise generation.
On 5 May 2026 the parties executed and filed a signed s 34 agreement reflecting their agreed decision: that the appeal be upheld and development consent granted to the amended application subject to conditions. The parties also confirmed that the amended materials addressed concerns raised in public submissions to the extent those concerns were captured by the Council’s contentions, including the public interest contention. A jurisdictional statement verifying satisfaction of the legal prerequisites was updated and filed on 17 June 2026.
The Court’s Holding
Acting Commissioner Kullen was satisfied, on the basis of the parties’ agreed jurisdictional statement, that all prerequisites for the grant of consent under s 4.16 of the EPA Act had been met. These included compliance with the LEP’s height limit of 8.5 m, a floor space ratio of 0.4994:1 (within the 0.5:1 maximum), permissibility of the use in the R3 zone, and satisfaction of the relevant State Environmental Planning Policies covering biodiversity and conservation, resilience and hazards (contamination), sustainable buildings, and transport and infrastructure. The proposed development met the indoor play space standard (3.45 m² per child) and outdoor play space standard (7.87 m² per child) required by the Education and Care Services National Regulations 2011 (NSW), and complied with the Child Care Planning Guideline 2021.
Under s 34(3) of the LEC Act, the Court is required to dispose of proceedings in accordance with a parties’ agreed decision where that decision is one the Court could have made in the proper exercise of its functions. The Commissioner found that requirement satisfied and made orders upholding the appeal and granting consent to the amended development application subject to the conditions in Annexure A. No independent merit assessment of the originally disputed issues was conducted. The applicant was also ordered to pay $2,000 in costs thrown away by the Council as a result of the mid-proceedings amendment to the development application, pursuant to s 8.15(3) of the EPA Act.
Key Takeaways
- A s 34 conciliation conference in the Land and Environment Court can resolve a refused development application without a contested hearing, provided the parties reach agreement and the agreed outcome is one the Court could have made in the proper exercise of its functions.
- Where an applicant amends a development application during appeal proceedings, the Court may order the applicant to pay costs thrown away by the respondent council as a result of that amendment, even where the appeal ultimately succeeds.
- Centre-based childcare facilities are permissible with consent in R3 Medium Density Residential zones under the Liverpool LEP 2008, and must satisfy play-space minima under the Education and Care Services National Regulations 2011 (NSW) as a non-discretionary standard.
- Amended materials need not be re-notified to the public where the consent authority is satisfied the amendments reduce environmental impact and improve community outcomes.
Why It Matters
This decision illustrates the practical utility of the Land and Environment Court’s conciliation process as a cost-effective pathway for resolving childcare development disputes. By amending the application to address traffic, height, solar access, and noise concerns, the applicant converted a refusal into a consent without a contested hearing, though not without cost consequences for the mid-stream amendment. The case is a routine but instructive example of s 34 agreement practice in Class 1 appeals.
For planning practitioners and childcare operators, the judgment also confirms the layered regulatory framework governing centre-based childcare facilities in New South Wales — spanning local environmental plans, multiple State Environmental Planning Policies, the Child Care Planning Guideline 2021, and the Education and Care Services National Regulations — and underscores that compliance with each instrument must be demonstrated as a jurisdictional prerequisite before the Land and Environment Court can give effect to a consent agreement.