Austral Developers Pty Ltd v Liverpool City Council

[2022] NSWLEC 1457

Land and Environment Court

New South Wales

Medium Neutral Citation:

Austral Developers Pty Ltd v Liverpool City Council [2022] NSWLEC 1457

Hearing dates:

Conciliation conference on 23-24 August 2022

Date of orders:

02 September 2022

Decision date:

02 September 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

1) The appeal is upheld.

2) Development Application (DA) 324/2020, as amended, seeks removal of trees, Torrens title subdivision into 31 residential lots and one residue lot, with associated drainage/earth/civil works to be undertaken over three stages on Lot 898 DP 2475, also known as 180 Ninth Avenue, Austral, and Lots 101 and 102 DP 1263643, also known as 190 Ninth Avenue, Austral is determined by grant of consent, subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision – significant trees – conciliation conference conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 8, s 8.4
Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.47, 8.3, 8.7
Environmental Planning and Assessment Regulation 2000, cll 49, 55
Land and Environment Court Act 1979, s 34
Rural Fires Act 1997, s 100B
State Environmental Planning Policy (Biodiversity and Conservation) 2021, cll 9.3, 9.4, 9.5
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
State Environmental Planning Policy (Precincts—Western Parkland City) 2021, App 4, cl 2.3
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

Texts Cited:

Liverpool Growth Centre Precincts Development Control Plan 2021

Category:

Principal judgment

Parties:

Austral Developers Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Seymour (Applicant)
A Stafford (Respondent)

Solicitors:
Jaku Legal (Applicant)
Sparke Helmore Solicitors (Respondent)

File Number(s):

2021/206009

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA-324/2020 (DA) by Liverpool City Council (hereafter the Council), which as amended seeks removal of trees, Torrens title subdivision into 31 residential lots and one residue lot, with associated drainage/earth/civil works to be undertaken over three stages on Lot 898 DP 2475, also known as 180 Ninth Avenue, Austral, and Lots 101 and 102 in DP 1263643, also known as 190 Ninth Avenue, Austral (together the site). It is noted that the DA seeks to retain the existing dwelling on the site.

Background

2. The DA was submitted to Council on 21 April 2020. The original DA was notified to residents, with no submissions received.

3. The original application was referred to various relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act), including Sydney Water, Transgrid and NSW Rural Fire Service (RFS).

4. The DA was refused by Council on 23 July 2020, and the applicant sought a review of the determination, pursuant to s 8.3 of the EPA Act, which remains undetermined.

5. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

6. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties request commenced without a site view and via Microsoft Teams.

7. The Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

8. Based on the amended DA and the agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The agreed position of the parties is for the Court to grant consent to the application, DA 324/2020, with conditions.

9. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to ss 4.14 and 4.15, to grant consent to DA 324/2020, subject to conditions in Annexure ‘A’.

The Site

10. The site is a regular, rectangular shape, historically surrounded by large rural lots with residential dwellings. The surrounding area is under a period of transition from agricultural to low and medium density residential development.

11. The site currently contains a dwelling, shed and swimming pool. The eastern and northern portions of the site are covered by a dense cover of large canopy trees.

12. The site fronts to Ninth Avenue for a length of 134m, forming the northern boundary. The southern, eastern and western boundaries are 134m, 150.68m and 150.68m in length, respectively. The total area of the site is 2.02 hectares (ha).

13. The site is within the catchment of Bonds Creek, a sub catchment of the Nepean-Hawkesbury River.

Jurisdictional prerequisites

14. The site is biodiversity certified land, pursuant to Pt 8 of the Biodiversity Conservation Act 2016 (BC Act). Pursuant to s 8.4, the Court is not required to further assess the impact to biodiversity from development on the subject land that is certified, including subdivision, loss of significant trees and by consideration of s 4.15 of the EPA Act.

15. The site is identified as being on ‘bushfire prone’ land. Satisfaction of s 4.14 of the EPA Act is therefore a requirement to grant consent on the site. The amended DA is supported by a Bushfire Hazard Assessment Report and the conditions of consent identify the required bushfire protection measures. The Rural Fire Service (RFS) have issued a Bushfire Safety Authority, pursuant to s 100B of the Rural Fires Act 1997, which are adopted in the conditions of consent. I am satisfied that the relevant provisions of the Rural Fires Act 1997 and s 4.14 of the EPA are addressed.

16. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been assessed by the Court:

1. State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Sydney Growth Centres) and State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (SEPP Precincts):

1. The parties agree that the SEPP Precincts has adopted the provisions of the SEPP Growth Centres, and that based on recent caselaw decisions of the Court, together with an absence of specific transitional provisions in the SEPP Precincts, the SEPP Precincts is the appropriate jurisdictional instrument for consideration of the application before the Court.

2. Pursuant to Appendix 4 of the SEPP Precincts, the site is located within the Leppington North Precinct, and as identified in cl 2.3 is situated over land zoned as R2 Low Density Residential (eastern portion), R3 Medium Density Residential (Central portion) and SP2 Educational Establishment (western portion). The proposed subdivision and works, as described to the Court, are permissible with consent within the respective land use zones. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the SEPP Precincts.

3. It is accepted that the application also satisfactorily addresses the relevant requirements of the SEPP Growth Centres, if applied.

2. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The site is located within the Hawkesbury-Nepean catchment, therefore the application is subject to the provisions of the SEPP Biodiversity. The amended application is consistent with the relevant provisions of the SEPP Biodiversity, and specifically addresses cll 9.3, 9.4 and 9.5.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to the SEPP Resilience, the site must be deemed suitable, or can be made suitable for the proposed use, prior to grant of consent. Based on the supporting documents to the amended DA, the Court is satisfied that the applicant has provided sufficient evidence, including contamination assessment reports (Stages 1 and 2), and a remedial action plan RAP, together with the agreed conditions of consent, to address the requirements of cl 4.6 of the SEPP Resilience.

4. Liverpool Growth Centre Precincts Development Control Plan 2021 (DCP):

1. The original application was publicly notified in accordance with the DCP. The relevant requirements of the DCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent.

17. The agreed conditions of this consent adopt the GTA’s as provided by relevant authorities, pursuant to s 4.47 of the EPA Act.

18. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from all landowners for works proposed by the amended application.

Grant of consent

19. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

20. The Council has undertaken the appropriate merit assessment of the proposed development. The Court notes that the issues raised in contention with regards to loss of significant trees have been addressed by the merit assessment undertaken by Council and amendments made by the applicant to the DA.

21. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that application DA-324/2020 can be granted consent, as it satisfies the relevant requirements of the BC Act and EPA Act.

22. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.

23. The Court notes that:

1. Liverpool City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application DA-324/2020.

2. The amended application documents were lodged on the NSW Planning Portal on 10 March 2022 and 24 August 2022.

3. The amended application was filed with the Court on 24 August 2022.

24. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-324/2020, as amended, seeks removal of trees, Torrens title subdivision into 31 residential lots and one residue lot, with associated drainage/earth/civil works to be undertaken over three stages on Lot 898 DP 2475, also known as 180 Ninth Avenue, Austral, and Lots 101 and 102 DP 1263643, also known as 190 Ninth Avenue, Austral is determined by grant of consent, subject to the conditions set out in Annexure ‘A’.

…………………………

Sarah Bish

Commissioner of the Court

(Annexure A) (1517943, pdf)

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Decision last updated: 02 September 2022