AK Developments NSW Pty Ltd v Liverpool City Council

[2024] NSWLEC 1624

Land and Environment Court

New South Wales

Medium Neutral Citation:

AK Developments NSW Pty Ltd v Liverpool City Council [2024] NSWLEC 1624

Hearing dates:

Conciliation conference on 4 October 2024

Date of orders:

04 October 2024

Decision date:

04 October 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application RD-32/2023 for the subdivision of land creating fifteen (15) Torrens title lots, construction of three (3) dual occupancies and fifteen (15) attached dwellings and associated site works at 29 and 31 Auger Street and 17, 22 and 24 Apiary Street, Austral, NSW 2179 is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:

APPEAL – development application – subdivision of land creating 15 Torrens title lots, construction of three dual occupancies and 15 attached dwellings and associated site works – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.47, 8.7; Pt 4, Div 4.8

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Building Sustainability Index) 2004

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4, ss 1.3, 2.1, 2.3, 2.6, 4.1, 4.1B, 4.1AB, 4.1AF, 4.3, 4.4, 5.10, 6.1

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Category:

Principal judgment

Parties:

AK Developments NSW Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Bawden (Solicitor) (Applicant)
A Jucha (Respondent)

Solicitors:
Mills Oakley (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/40487

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal against the refusal by Liverpool City Council (the Council) of development application RD-32/2023 for the:

1. subdivision of land to create fifteen Torrens title lots;

2. construction of three (3) dual occupancies and fifteen (15) attached dwellings; and

3. associated site works;

at 29 and 31 Auger Street, 17, 22 and 24 Apiary Street, Austral, NSW 2179 (formerly known as 255 Seventh Avenue, Austral) and legally identified as Lots 16, 17, 22, 23, 24, 29, 30 and 31 in DP 1262836 (the site).

2. The site benefits from a historic development consent, DA-377/2018 which approved the construction of surrounding roads servicing the site, Torrens title subdivision of the land into 35 residential lots and three (3) residue lots for OSD and two (2) super lots and associated civil and road works (the Parent Consent). Subdivision works approved under this consent are presently underway.

3. On 19 May 2022, the applicant lodged development application DA-591/2022 with the Council seeking consent for the further subdivision of the lots approved under the Parent Consent (DA-377/2018) and construction of 23 residential dwellings. On 1 August 2023, the Council determined DA-591/2022 by way of refusal.

4. On 28 November 2023, the applicant submitted a Review of Determination Request for the refusal DA-591/2022 - pursuant to s 8.3 of the Environmental Planning and Assessment Act 1979 (EPA Act). As part of that s8.3 Application, the applicant provided a suite of amended documentation (Tabs 12-16 of the Class 1 Application) and was assigned a new Development Application Number - RD-32/2023 (DA).

5. On 22 January 2024, RD-32/2023 was subsequently determined by the Council by way of refusal.

6. On 1 February 2024, the applicant commenced these Class 1 Proceedings against the Council’s refusal of RD-32/2023, pursuant to s 8.7(1) of the EPA Act.

The s34 conciliation conference

7. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 October 2024. I presided over the conciliation conference.

8. During the conciliation, the applicant amended its proposed design as shown in the plans referred to in the s34 agreement which include:

• introduction of additional breaks in built form and alterations to typology of dwellings proposed (see Tab 3 of s34 agreement bundle);

• revised lot numbering and subdivision scheme; and

• associated architectural, civil and landscaping updates – in line with new surveys undertaken.

9. The Council is satisfied that the amendments satisfactorily address the contentions in its Statement of Facts and Contentions subject to the agreed imposition of conditions of consent (Annexure A) and together with the applicant proposes resolution of the proceedings in accordance with the terms outlined in their executed s34 written agreement.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.

11. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement.

12. In that regard, I note the following:

13. Owner’s consent has been provided by the applicant in relation to the DA (Tab 1 of the Class 1 Application).

Integrated development

14. The development is integrated development under Div 4.8 of Pt 4 of the EPA Act as it requires a bush fire safety authority under s 100B of the Rural Fires Act 1997 for the subdivision of bush fire prone land.

Rural Fires Act 1997

15. The site is identified as bush fire prone land, requiring a s100B Bush Fire Safety Authority from the NSW Rural Fire Service (RFS) pursuant to the Rural Fires Act 1997.

16. By letter dated 6 September 2024 the NSW Rural Fire Service issued General Terms of Approval (GTAs) and a Bush Fire Safety Authority in respect of the development.

17. The RFS GTAs are included in the conditions forming Annexure A so that the consent to the DA will be consistent with the GTAs issued by RFS (EPA Act, s 4.47(3)).

State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable SEPP)

18. The original BASIX Certificate prepared by AKV Pty Ltd was lodged under the provisions of State Environmental Planning Policy (Building Sustainability Index) 2004 (BASIX SEPP). On 1 October 2023, State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable SEPP) came into force and repealed the BASIX SEPP. The DA is captured by the savings and transitional provision set out in s 4.2(1)(c) of the Sustainable SEPP, so remains subject to the provisions of the BASIX SEPP.

19. In compliance with the relevant requirements under the BASIX SEPP, the applicant has provided an updated BASIX Certificate, consistent with the amended design (Tab 9 of s34 agreement bundle).

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

20. Pursuant to s 4.6 of the RH SEPP, the consent authority must be satisfied that appropriate consideration has been given to whether the site is contaminated, the suitability of the site for the proposed development and, if the site is contaminated, whether satisfactory measures are put into place to remediate the land should it be required to do so.

21. The Parent Consent (DA-377/2018) included Phase 1 and 2 Environmental Site Assessments, and a Remedial Action Plan that concluded that the site was suitable for residential development subject to remediation and validation. Conditions of consent were imposed in this respect (see conditions 62-66, Tab 9 of s34 agreement bundle). The remediation works required in accordance with the Parent Consent have been carried out on the site.

22. The DA does not propose to interfere with the remediation works that were carried out pursuant to the Parent Consent. The earthworks are detailed with a maximum cut of 500mm (see Dwg No. 100, Tab 5 of s34 agreement bundle).

23. Accordingly, as a result of the remediation carried out, as required by the Parent Consent, the parties submit, and I accept that the site has been remediated and is not contaminated in accordance with s 4.6 of the RH SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

24. The site has already been cleared of all vegetation in accordance with the Parent Consent. As such, Ch 2 of the BC SEPP does not apply to the DA.

State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (SEPP WPC)

25. As the site is located within the Austral Precinct, pursuant to s 1.3 of Appendix 4 of SEPP WPC, the development will be subject to the development standards of Appendix 4 – Liverpool Growth Centres Precinct Plan.

Section 2.1 Land use zones

26. The site is zoned R3 Medium Density Residential.

Section 2.3 Zone objectives and Land Use Table

27. The Court is required to have regard to the zone objectives. These are as follows:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a medium density residential environment.

28. The proposed development involves the construction of three (3) “dual occupancies” (which is an express permissible use under s 2.3) and 15 “attached dwellings”. Dual occupancies are a nominate permissible use pursuant to cl 3 of the Zoning Table. Attached dwellings are an innominate permissible use by virtue of the fact that they are not prohibited and – noting that “any other development” not identified under cl 2 (“Permitted without consent) or cl 4 “(Prohibited”) is permissible.

29. In consideration of the zone objectives, the parties submit and I accept that the proposed development is consistent with the objectives of the R3 Zone as established by the Land Use Table, specifically to provide for the housing needs of the community within a medium density residential environment.

Section 2.6 Subdivision

30. The land is permitted to be subdivided under this Plan, but only with development consent.

Section 4.1 Minimum subdivision lot size

31. The site is not mapped as subject to a minimum lot size requirement pursuant to the Lot Size Map.

Section 4.1B Residential density

32. The site is identified on the Residential Density Map as having a minimum density value of 25 dwellings per hectare. The applicant has provided evidence (p 39, Tab 12 of the Class 1 Application) that the number of dwellings proposed under the DA complies with the minimum density control – noting the other surrounding dwellings approved under the Parent Consent.

Section 4.1AB Minimum lot sizes for residential development in Zone R2 Low Density Residential and Zone R3 Medium Density Residential

33. Section 4.1AB applies to residential development on land zoned R2 or R3 that is nominated under the Residential Density Map and nominates the minimum lot sizes for various typologies of residential development, based on density per hectare.

Attached dwellings

34. The DA proposes attached dwellings on the land that is proposed to be subdivided. Pursuant to subs 4.1AB(6)(b), the minimum lot size for an attached dwelling on land identified on the Residential Density Map as having a density value of 25, is 375m².

35. Section 4.1AF provides a series of exceptions to the minimum lot sizes for dwelling houses and applies to lots within the R3 zone that have an area of less than 225m², but not less than 125m²:

36. Subsection 4.1AF(2) provides:

(2) Despite section 4.1AB, development consent may be granted to the erection of a dwelling house on a small lot if the development application is a single development application for development that is both of the following—

(a) the subdivision of land into 2 or more lots,

(b) the erection of the dwelling house on one of the lots resulting from the subdivision.

37. The lots proposed (Proposed Lots 36-50, Tab 2 of s34 agreement bundle) range from 167m² to 195m² in area, however benefit from a statutory exception to this lot size control pursuant to s 4.1AF.

38. The proposed development complies with the relevant criteria established at subss 4.1AF(2)(a) and (b) above, and accordingly, development consent may be granted to Lots 36-50.

Dual occupancies

39. The lots on which dual occupancies are proposed include Lots 16, 23 and 30 in DP 1262836.

40. Section 4.1AB(4)(c) requires a minimum lot size of 400m² if the dwelling density (per hectare) in relation to the land is 25. The proposed development proposes a lot size of 401.3m² (see Sheets 4 and 6, Tab 2 of the s34 agreement bundle).

Section 4.3 Height of buildings

41. The site is identified as having a maximum permissible height of 12m. All proposed dwellings sit under the 12m height control (see Drawing No. 07.25, Tab 3 of s34 agreement bundle) and accordingly, the proposed development is compliant with this provision.

Section 4.4 Floor space ratio

42. The site is not identified on the Floor Space Ratio Map.

Section 5.10 Heritage conservation

43. The site is not mapped within a heritage conservation area nor does it contain or is it adjacent to heritage items.

Section 6.1 Public utility infrastructure

44. Section 6.1 of the LEP relates to the availability of public utility infrastructure, and development consent cannot be granted unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available and adequate arrangements have been made to make that infrastructure available when required. As required under the Parent Consent, the applicant has obtained the required servicing certificates from Sydney Water and Endeavour Energy which remain applicable to the proposed DA (see p 31, Tab 10 of s34 agreement bundle).

Notation and orders

45. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

46. The Court notes:

1. That Liverpool City Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of development application no. RD-32/2023 to incorporate the documents listed below:

Plan Name	Project No.	Sheet No.	Date		Rev	Prepared by
Subdivision Plan
Plan of Subdivision of Lots 17, 22, 24, 29 & 31 In DP1262836	8006	DP1309275	22/08/24		A	SDG Pty Ltd
Architectural Plans
Site Plan – Lots 16&17	21067	02.01	28/08/24		G	Baini Design
Site Plan – Lots 22-24	21067	02.02	28/08/24		G	Baini Design
Site Plan – Lots 29-31	21067	02.03	28/08/24		G	Baini Design
Master Site Plan	21067	02.04	28/08/24		G	Baini Design
Ground Floor Plans–Lots 16&17	21067	03.01	28/08/24		G	Baini Design
Ground Floor Plans–Lots 22-24	21067	03.02	28/08/24		G	Baini Design
First Floor Plans – Lots 16&17	21067	03.04	28/08/24		G	Baini Design
First Floor Plans – Lots 22-24	21067	03.05	28/08/24		G	Baini Design
First Floor Plans – Lots 29-31	21067	03.06	28/08/24		G	Baini Design
Roof Plan – Lots 16&17	21067	03.07	28/08/24		G	Baini Design
Roof Plan – Lots 22-24	21067	03.08	28/08/24		G	Baini Design
Roof Plan – Lots 29-31	21067	03.09	28/08/24		G	Baini Design
Elevations – Lots 16&17	21067	04.01	28/08/24		G	Baini Design
Elevations – Lots 16&17	21067	04.02	28/08/24		G	Baini Design
Elevations – Lots 22-24	21067	04.03	28/08/24		G	Baini Design
Elevations – Lots 22-24	21067	04.04	28/08/24		G	Baini Design
Elevations – Lots 29-31	21067	04.05	28/08/24		G	Baini Design
Elevations – Lots 29-31	21067	04.06	28/08/24		G	Baini Design
Sections – Lots 16&17	21067	05.01	28/08/24		G	Baini Design
Sections – Lots 22-24	21067	05.02	28/08/24		G	Baini Design
Sections – Lots 29-31	21067	05.03	28/08/24		G	Baini Design
Typical Fence Details – All Lots	21067	08.03	28/08/24		G	Baini Design
Typical Schedule of Finishes – All Lots	21067	09.01	28/08/24		G	Baini Design
Subdivision Plan	21067	10.01	28/08/24		G	Baini Design
Landscape Plans
Landscape Plan for DA – Lots 16-38	JALA-22-002	LP01-01	09/09/24		B	Jala Designs
Landscape Plan for DA – Lots 39-44	JALA-22-002	LP01-02	09/09/24		B	Jala Designs
Landscape Plan for DA – Lots 45-50	JALA-22-002	LP01-03	09/09/24		B	Jala Designs
Bulk Earthworks Plan
Bulk Earthworks Plan	2021473	100	04/09/24		A	Telford Civil
Bulk Earthworks Sections Sheet 1	2021473	110	04/09/24		A	Telford Civil
Bulk Earthworks Sections Sheet 2	2021473	111	04/09/24		A	Telford Civil
Bulk Earthworks Sections Sheet 3	2021473	112	04/09/24		A	Telford Civil
Stormwater Concept Plans
Site Plan	2021473	101	03/09/2024		D	Telford Civil
Stormwater Concept Plan, Lot 16 – 17, Sheet 1 of 2	2021473	201	03/09/2024		D	Telford Civil
Stormwater Concept Plan, Lot 16 – 17, Sheet 2 of 2	2021473	202	03/09/2024		D	Telford Civil
Sediment and Erosion Control Plan & Details Lot 16 -17	2021473	103	03/09/2024		D	Telford Civil
Stormwater Concept Plan, Lot 22-23-24, Sheet 1 of 2	2021473	301	03/09/2024		D	Telford Civil
Stormwater Concept Plan, Lot 22-23-24, Sheet 2 of 2	2021473	302	03/09/2024		D	Telford Civil
Sediment and Erosion Control Plan & Details Lot 22-23-24	2021473	303	03/09/2024		D	Telford Civil
Stormwater Concept Plan, Lot 29-30-31, Sheet 1 of 2	2021473	401	03/09/2024		D	Telford Civil
Stormwater Concept Plan, Lot 29-30-31, Sheet 2 of 2	2021473	402	03/09/2024		D	Telford Civil
Sediment and Erosion Control Plan & Details Lot 29-30-31	2021473	403	03/09/2024		D	Telford Civil
Miscellaneous Details Sheet	2021473	501	03/09/2024		D	Telford Civil
Survey Plan
Detail and Level Survey of Lots 1-35 in DP 1262836	8006	1 of 8	21/08/24		A	SDG Pty Ltd
Detail and Level Survey of Lots 1-35 in DP 1262836	8006	2 of 8	21/08/24		A	SDG Pty Ltd
Detail and Level Survey of Lots 1-35 in DP 1262836	8006	3 of 8	21/08/24		A	SDG Pty Ltd
Detail and Level Survey of Lots 1-35 in DP 1262836	8006	4 of 8	21/08/24		A	SDG Pty Ltd
Detail and Level Survey of Lots 1-35 in DP 1262836	8006	5 of 8	21/08/24		A	SDG Pty Ltd
Detail and Level Survey of Lots 1-35 in DP 1262836	8006	6 of 8	21/08/24		A	SDG Pty Ltd
Detail and Level Survey of Lots 1-35 in DP 1262836	8006	7 of 8	21/08/24		A	SDG Pty Ltd
Detail and Level Survey of Lots 1-35 in DP 1262836	8006	8 of 8	21/08/24		A	SDG Pty Ltd
Supporting Documents
Document Title		Prepared by		Dated
BASIX Certificates		AKV Pty Ltd		11 September 2024

2. The amended application was filed with the Court on 26 September 2024.

47. The Court orders:

1. The appeal is upheld.

2. Development application RD-32/2023 for the subdivision of land creating fifteen (15) Torrens title lots, construction of three (3) dual occupancies and fifteen (15) attached dwellings and associated site works at 29 and 31 Auger Street and 17, 22 and 24 Apiary Street, Austral, NSW 2179 is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

……………………

S Dixon

Senior Commissioner of the Court

Annexure A (995994, pdf)

**********

Decision last updated: 04 October 2024