ANBZ Investments Pty Ltd v Liverpool City Council

[2023] NSWLEC 1512

Land and Environment Court

New South Wales

Medium Neutral Citation:

ANBZ Investments Pty Ltd v Liverpool City Council [2023] NSWLEC 1512

Hearing dates:

Conciliation conference held 16 June, 7, 21 and 24 July, and 7 and 15 August 2023, final agreement filed 24 August 2023

Date of orders:

11 September 2023

Decision date:

11 September 2023

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1)   Leave is granted to the Applicant to amend Development Application DA-1139/2022 and rely upon the amended plans and documents referred to at Condition 1 of Annexure A.

(2) Pursuant to section 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 amending the Development Application as agreed or assessed.

(3)   The Applicant’s written request, pursuant to cl 4.6 of the Liverpool Local Environmental Plan 2008 (LLEP), seeking to vary the development standard for height of building as set out at cl 4.3 of the LLEP, is upheld.

(4)   The appeal is upheld.

(5)   Consent is granted to Development Application DA-1139/2022 (as amended) for the demolition of existing building and structures, removal of existing trees and construction of industrial development comprising 16 warehouses with mezzanines, 53 storage units on the first floor, car parking and associated landscaping at 3-5 Hume Highway, Warwick Farm, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – industrial development – cl 4.6 written request – height of buildings – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021 s 38

Liverpool Local Environmental Plan 2008, cll 2.3, 4.3, 4.6

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 11

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Texts Cited:

NSW Department of Planning and Environment, Planning Circular PS 18-003, February 2018

Category:

Principal judgment

Parties:

ANBZ Investments Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Ede (Solicitor)(Applicant)
C Campbell (Solicitor)(Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/15780

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by ANBZ Investments Pty Ltd (the Applicant) against the deemed refusal of Development Application DA-1139/2022 (the DA) by Liverpool City Council (the Respondent). The DA sought consent for the demolition of existing building and structures, removal of existing trees and construction of industrial development comprising 16 warehouses with mezzanines, 53 storage units on the first floor, car parking and associated landscaping at 3-5 Hume Highway, Warwick Farm (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 June, 7, 21 and 24 July, and 7 and 15 August 2023. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of particular note, the DA has been amended during the conciliation conference to resolve the contentions initially raised by the Respondent which related to issues of the exceedance of the height of building development standard, the adequacy of the landscape design, architectural design and stormwater design, amongst other contentions.

5. The final design amendments include enhancements to the landscape design across the site and clarification of the precise form and nature of the proposed development, including facade treatments and the design of a vehicle ramp serving the upper level. Additional details regarding the flood mitigation measures proposed for the site serve to justify the proposed height of building exceedance.

6. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was publicly notified between 31 January 2023 and 15 February 2023. The Respondent received no submissions in response to this public notification.

10. The parties agree, and I am satisfied, that the Liverpool Local Environmental Plan 2008 (LLEP) is the relevant local environmental planning instrument. At the date of lodgement, the site was zoned IN1 General Industrial (now reformed as E4 General Industrial), and the proposed development - characterised as industrial warehouse development - is permissible with consent, and I am satisfied the proposed development is consistent with the E4 zone objectives set out at cl 2.3 of the LLEP.

11. The parties agree, and I am satisfied, that all principal development standards of the LLEP have been met by the amended DA, with the exception of cl 4.3, Height of buildings, which establishes a maximum height of building development standard of 15m for the site.

12. In such an instance, cl 4.6(3) of the LLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

13. Clause 4.6(4) of the LLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

14. Additionally, cl 4.6(4)(b) of the LLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

15. As required by cl 4.6 of the LLEP, the Applicant has provided a written request (prepared by GAT and Associates and dated June 2023) seeking to vary the height of building development standard.

16. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of building development standard for the following reasons:

1. The amended DA exceeds the 15m development standard, proposing a maximum height of 16.6m (RL) which is 1.6m greater than the development standard, or a variation of approximately 10.6%.

2. Of note, the site is mapped in a medium flood risk area and the proposed development is sited to accommodate flood events by providing flood storage volume within the site’s boundaries and partially below the ground floor level. This flood mitigation measure has the effect of lifting the ground floor of the proposed development above the existing ground level in some areas of the site contributing to the exceedance of the height of building control.

3. The objectives of the LLEP Zone E4, General Industrial land use zone, include to provide a range of industrial, warehouse, logistics and related land uses, and to ensure the efficient and viable use of land for industrial uses. I am satisfied the amended DA meets these objectives.

4. The objectives of cl 4.3 of the LLEP include to permit building heights that encourage high quality urban form, and to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight. I am satisfied the amended DA meets these objectives.

5. The amended DA resolves the Respondent’s earlier contentions, and in particular the proposed building form is contained toward the centre of the site where the height exceedance does not result in any unreasonable additional environmental impacts such as overshadowing or contribute to unreasonable visual bulk.

17. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of building development standard and I find to uphold the written request.

18. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. The Applicant has provided a Detailed Site Investigation prepared by Canopy Enterprises which concludes the site can be made suitable for the proposed development. Conditions of consent are imposed to ensure implementation of the recommendations of this report. Accordingly, I am satisfied the DA addresses the matters outlined in s 4.6 of SEPP Resilience.

19. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021, (SEPP Biodiversity) is an additional relevant environmental planning instrument. Pursuant to Chapter 2 of SEPP Biodiversity, the DA seek consent for the removal of existing trees. The Applicant has prepared an Arboricultural Impact Assessment and I am satisfied the amended DA conforms with the relevant provisions of SEPP Biodiversity.

20. Pursuant to Chapter 11 of SEPP Biodiversity, the Site is situated within the Georges River Catchment but is not situated in proximity to the foreshore. The Applicant has prepared a Flood Report and I am satisfied the amended DA will not have any detrimental impact on the quality of foreshores and waterways, hence conforming with the relevant provisions of SEPP Biodiversity.

21. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument.

22. Pursuant to s 2.119 of SEPP Infrastructure, the site fronts a classified road being the Hume Highway. The parties agree, and I am satisfied, that the Applicant’s Traffic and Parking Impact Assessment, prepared by Hemanote Consultants, demonstrates the proposed development will not adversely affect the surrounding road network or cause any unreasonable or unsafe traffic or parking implications.

23. Transport for NSW has provided its concurrence on 8 March 2023 and the recommended conditions are reflected in the agreed conditions of consent. Accordingly, I am satisfied the amended DA addresses the relevant matters outlined in SEPP Infrastructure.

24. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

25. The Court notes that:

1. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has filed the amended DA with the Court on 24 August 2023.

Orders

26. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA-1139/2022 and rely upon the amended plans and documents referred to at Condition 1 of Annexure A.

2. Pursuant to section 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 amending the Development Application as agreed or assessed.

3. The Applicant’s written request, pursuant to cl 4.6 of the Liverpool Local Environmental Plan 2008 (LLEP), seeking to vary the development standard for height of building as set out at cl 4.3 of the LLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application DA-1139/2022 (as amended) for the demolition of existing building and structures, removal of existing trees and construction of industrial development comprising 16 warehouses with mezzanines, 53 storage units on the first floor, car parking and associated landscaping at 3-5 Hume Highway, Warwick Farm, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

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Annexure A (1712648, pdf)

(Annexure B) (10564315, pdf)

Decision last updated: 11 September 2023