Austral North Nominees Pty Ltd v Liverpool City Council

[2022] NSWLEC 1143

Land and Environment Court

New South Wales

Medium Neutral Citation:

Austral North Nominees Pty Ltd v Liverpool City Council [2022] NSWLEC 1143

Hearing dates:

Conciliation conference held on 7 February 2022

Date of orders:

23 March 2022

Decision date:

23 March 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) That development consent is granted to Development Application 922/2021, subject to conditions contained in Annexure ‘A’ hereto to the development application for subdivision of Lot A in DP373652 and Lot 217 in DP2475 to create 51 residential lots and associated works being:

(a) demolition of all existing structures and improvements;

(b) removal of all vegetation including trees;

(c) construction of roads, drainage, and utility infrastructure; and

(d) associated street landscaping works.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Environmental Planning and Assessment Regulation 2021, Sch 6

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Precincts—Western Parkland City) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021, Chapter 4

Texts Cited:

Liverpool Growth Centre Precincts Development Control Plan 2021

Category:

Principal judgment

Parties:

Austral North Nominees Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
W Wilcher (Applicant)
M Seymour (Respondent)

Solicitors:
Hickson’s Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2021/297927

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against deemed refusal of Development Application (DA) 922/2021 by the Liverpool City Council (hereafter the Council) which, as amended, seeks removal of trees and structures, Torrens title subdivision into 51 lots, and construction of associated drainage/earth/civil works on Lot A DP 373652 and Lot 217 DP 2475, also known as 47 and 53 Seventeenth Avenue, Austral (together the site).

Background

2. The DA was submitted to Council on 12 August 2021.

3. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference for the appeal, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), without an onsite view as requested by the parties, which was held by MicroSoft Teams.

5. 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). It is noted that the EPA Reg was repealed on 1 March 2021, however, pursuant to the savings provision in Sch 6 of the Environmental Planning and Assessment Regulation 2021, the previous regulations are required to be assessed for this DA.

6. Based on the amended DA and 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 decision of the parties is to uphold the appeal and grant consent to DA 922/2021, with conditions.

7. Pursuant to s 34(3) of the Court 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 922/2021, subject to conditions described in Annexure ‘A’.

Jurisdictional prerequisites

8. 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 DA.

9. The site is identified as ‘bushfire prone’ land. Section 4.14 of the EPA Act establishes a requirement to consider the relevant specifications relating to development on bushfire prone land. The amended DA is supported by a Bushfire Hazard Assessment Report and the conditions of consent address the required bushfire protection measures. The Rural Fire Service have provided General Terms of Approval (GTA’s), which are adopted in the conditions of consent.

10. 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 (Precincts—Western Parkland City) 2021 (SEPP Precincts):

1. Pursuant to the SEPP Precincts, the proposed subdivision and residential development is situated over land zoned R2 Low Density Residential. The proposed subdivision as described to the Court is permissible with consent within the land use zone. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the SEPP Precincts. The conditions of consent adopt the GTA’s as provided by relevant authorities.

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

1. The site is subject to the provisions of the SEPP Biodiversity. The amended proposal is consistent with the relevant provisions.

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), which are supported by the agreed conditions of consent, to address the requirements of Chapter 4 of the SEPP Resilience.

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

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

Grant of consent

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

12. The Council has undertaken the appropriate merit assessment of the proposed development.

13. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 922/2021 can be granted, as it satisfies the relevant requirements of ss 4.14 and 4.15 of the EPA Act.

14. 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

15. The Court notes that:

1. The Court notes that Liverpool City Council, as the relevant consent authority, has agreed, under clause 37(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application DA-922/2021 per the documentation listed in Annexure ‘A’.

2. The Court notes that the amended development application was lodged on the planning portal on 2 March 2022.

3. The Court notes that the amended development application was filed with the Court on 2 March 2022.

16. The Court orders:

1. The appeal is upheld.

2. That development consent is granted to Development Application 922/2021, subject to conditions contained in Annexure ‘A’ hereto to the development application for subdivision of Lot A in DP373652 and Lot 217 in DP2475 to create 51 residential lots and associated works being:

1. demolition of all existing structures and improvements;

2. removal of all vegetation including trees;

3. construction of roads, drainage, and utility infrastructure; and

4. associated street landscaping works.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (1083074, pdf)

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Decision last updated: 23 March 2022