Austral Property Developers Pty Ltd v Liverpool City Council

Case •

[2023] NSWLEC 1622

•

20 October 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Austral Property Developers Pty Ltd v Liverpool City Council [2023] NSWLEC 1622
Hearing dates: 10-11, 31 July 2023
Notice of Motion hearing dates 20, 22 September 2023
Date of orders: 20 October 2023
Decision date: 20 October 2023
Jurisdiction:Class 1
Before: Gray C
Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to DA-1025/2022 for the staged development of land at 48-50 Gurner Avenue, Austral including the staged demolition of existing structures and subdivision of land into 39 Torrens title lots, the construction of Weetjella Road and partial construction of Wargaldarra Road, the construction of 6 semi-detached dwellings and the retention of an existing dwelling and out building, subject to the conditions of consent at Annexure A.

(3) Exhibits 2 and 6 are returned, the remaining exhibits are retained.

Catchwords:

APPEAL – development application – subdivision of land in multiple stages – contentions resolved by amendment to staging

APPLICATION – notice of motion to reopen the hearing and rely on amended plans – reasons for dismissal

Legislation Cited:

Environmental Planning and Assessment Act 1979, Sch 1, ss 2.22, 4.47, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38

Land and Environment Court Act 1979, s 39

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Appendix 4 ss 2.3, 2.6, 4.1, 4.1AA, 4.1AB, 4.1B, 4.6

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

Cases Cited:

Chao v Chao (No 2) [2008] NSWSC 612

Crowley v Hastings Municipal Council (1982) 4 APA 115

Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370

Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010

Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52

Texts Cited:

Liverpool Community Participation Plan

Liverpool Growth Centre Development Control Plan 2021

Category:Principal judgment
Parties: Austral Property Developers Pty Ltd (Applicant)
Liverpool City Council (Respondent)
Representation:

Counsel:
C Gough (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)
File Number(s): 2022/343239
Publication restriction: Nil

Judgment

  1. COMMISSIONER: Gurner Avenue in Austral is an area currently undergoing urbanisation, where rural and agricultural land is transitioning to residential subdivision with dwellings at densities informed by minimum density requirements. At 48-50 Gurner Avenue, Austral Property Developers Pty Ltd (Austral Property) seeks development consent for the staged subdivision of land, the construction of dwelling houses and associated road construction and landscaping. It lodged a development application with Liverpool City Council (the Council) on 11 October 2022. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  2. In the course of the hearing of the appeal, the Court exercised the functions of the consent authority pursuant to s 38(2) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021) on two occasions to approve amendments to the development application. The development application, as amended, is for a subdivision of the existing lot into 39 Torrens title allotments over several stages, including a residue lot for acquisition as a future park. The stages allow for the retention of the existing eastern dwelling and associated rear building, site civil works including the construction of Weetjella Road and partial construction of Wargaldarra Road, and the construction of 6 semi-detached dwellings. The stages are defined in agreed conditions as follows:

Stage

Description

1

• Subdivision into 2 Torrens Title allotments including Lot 1 containing the existing dwellings as a dual occupancy with 2 existing detached outbuildings and Lot 2 being the development lot for further subdivision in Stage 2.

2

• Construction of the majority of Wargaldarra Road, excluding the portion adjacent to Lot 1. The portion of Wargaldarra Road which adjoins Lot 1 is to be provided with a full width carriageway with a temporary footpath and verge located to the west of the alignment of the remainder of Wargaldarra Road.

• Construction of the full width of Weetjella Road and half width of Gurner Avenue.

• Construction of 6 semi-detached dwellings (3 pairs of 2)

• Subdivision of Lot 2 from Stage 1 into 34 Torrens Title allotments including 1 residue lot containing the temporary on-site detention basin on proposed Lot 230 and 1 residue allotment for the future park on proposed lot 228 - Residue.

3

• Demolition of 1 existing dwelling forming the dual occupancy and its associated detached outbuilding closest to Wargaldarra Road, construction of remainder of Wargaldarra Road verge, kerbs, gutter and footpath and subdivision of Lot 1 in Stage 1 into 5 Torrens titled allotments including 2 residue lots containing the temporary on-site detention basin on proposed Lots 101 and 102.

4

• Decommissioning of the temporary on-site detention basins on proposed Lot 230 and Lots 101 and 102, filling and rehabilitation of the land.

  1. The subdivision layout, once all stages are completed, is shown in Figure 1.

  1. As a result of the amendment to the development application, the Council now agrees that each of the contentions it raised on appeal has been resolved, and there are no contentions that warrant refusal of the development application. For the reasons that are set out below, I accept that none of the contentions warrant refusal of the development application and that it should be granted subject to the conditions that are agreed between the parties.

Conduct of and following the hearing

  1. The hearing was conducted on 10 and 11 July 2023, but the development application had not been previously notified and it came to the attention of the Council that the development application (as amended) required notification in accordance with the requirements of s 2.22 and Sch 1 of the EPA Act. The hearing was adjourned to 31 July 2023 to allow notification to occur. On 31 July 2023, I reserved judgment.

  2. Following the hearing, on 1 August 2023 I raised an issue with the parties concerning the construction of a provision relating to dwelling density. Although the parties eventually reached an agreed position in response (communicated to the Court on 17 August 2023), the intervening period caused an issue to be brought to the fore between Austral Property and the owners of the site concerning the amendments to the staging of the proposed development that had been made in the course of the hearing.

  3. The appeal was then listed for mention on a number of occasions in anticipation of a Notice of Motion being filed by Austral Property seeking leave to re-open the proceedings and to further amend the development application. That Notice of Motion was eventually filed on 20 September 2023, and following a short hearing on 22 September 2023, it was dismissed. My reasons for that decision are set out following my consideration of the proposed development below.

The site and the locality

  1. The subject site is legally known as Lot 1 DP 395169, and has an address of 48-50 Gurner Avenue, Austral. The site is generally rectangular in shape, but narrows towards the north, with a total area of 28,362.5m2 and a northern frontage of 67.07m to Gurner Avenue. The rear boundary has a width of 73.77m, and the site has a depth of around 402m.

  2. The site is currently occupied by two 2-storey dwelling houses which front Gurner Avenue and each have a detached building to the rear, beyond which greenhouses occupy the site.

  3. The locality is in a newly urbanised area characterised by recent residential subdivisions with recently constructed dwelling houses or dwelling houses under construction, although there remain some low density dwelling houses on lots that are used for agricultural purposes to the south west of the site. An educational establishment known as Al-Faisal College is to the west of the site.

  4. Immediately adjoining the northern half of the western boundary is Wargaldarra Road, which is a half width road constructed in association with the subdivision of land to the west. Opposite Wargaldarra Road are residential allotments containing recently constructed detached dwelling houses. The southern section of the western boundary adjoins 70 Gurner Avenue, which has not yet been developed for residential purposes and contains greenhouses.

  5. To the east of the site is a narrow strip of land that has been partially developed and subdivided to accommodate dwelling houses, and fronts a road known as Edmondson Avenue. A small portion of two east-west roads is provided to the west of Edmondson Avenue and up to the eastern boundary of the site. This includes the extension of Sixteenth Avenue, located adjacent to the southern boundary of the site, and Damun Street, located approximately 75m further to the north.

  6. An aerial photograph of the site and the locality is at Figure 2.

The planning controls

  1. The site is largely zoned R2 – Low Density Residential, with the southern portion of the site zoned RE1 – Public Recreation, pursuant to Appendix 4 of the State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (SEPP WPC), which contains the Liverpool Growth Centres Precinct Plan (Precinct Plan). The subdivision of land is permitted with consent pursuant to s 2.6 of the Precinct Plan, and development for the purpose of semi-detached dwellings is permissible in the R2 zone in which the dwellings are proposed.

  2. Pursuant to s 2.3 of the Precinct Plan, the Court, exercising the functions of the consent authority, must have regard to the objectives of the zone when determining a development application. The objectives of the R2 zone are as follows:

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

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

• To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

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

  1. The objectives of the RE1 zone are:

• To enable land to be used for public open space or recreational purposes.

• To provide a range of recreational settings and activities and compatible land uses.

• To protect and enhance the natural environment for recreational purposes.

  1. The development application does not propose any development on the portion of the land zoned RE1. That part of the site is marked on the land reservation acquisition map for the purpose of “local open space”.

  2. Section 4.1 establishes a minimum subdivision lot size development standard, but the applicable mapping does not indicate that the site is the subject of a minimum subdivision lot size.

  3. Section 4.1AA, however, allows the subdivision of lots in the R2 zone to result in the creation of a lot that is less than 300m2, but not less than 225m2, “if the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot.” The proposed development includes 6 lots that are less than 300m2 and greater than 225m2, which are those lots on which the semi-detached dwelling houses are proposed. I am satisfied, based on the plans for the semi-detached dwellings, that each of the 6 lots will contain “a sufficient building envelope to enable the erection of a dwelling house”, in satisfaction of the requirements of s 4.1AA.

  4. Section 4.1AB of the Precinct Plan establishes a development standard for the minimum lot size for certain forms of development. Section 4.1AB(5) applies to semi-detached dwellings, and the lots on which the semi-detached dwellings are proposed to be constructed comply with the minimum lot size for semi-detached dwellings, which is 200m2.

  5. Section 4.1B of the Precinct Plan establishes a minimum density for residential development. It provides that:

4.1B Residential density

(1) The objectives of this section are—

(a) to establish minimum density requirements for residential development, and

(b) to ensure that residential development makes efficient use of land and infrastructure, and contributes to the availability of new housing, and

(c) to ensure that the scale of residential development is compatible with the character of the precinct and adjoining land.

(2) This section applies to residential development of the kind referred to in section 4.1AB or 4.1AC that—

(a) is carried out on land to which this Precinct Plan applies that is shown on the Residential Density Map, and

(b) requires development consent, and

(c) is carried out after the commencement of this Precinct Plan.

(3) The density of any residential development to which this section applies is not to be less than the density shown on the Residential Density Map in relation to that land.

(4) In this section—

density means the net developable area in hectares of the land on which the development is situated divided by the number of dwellings proposed to be located on that land.

net developable area means the land occupied by the development, including internal streets, but excluding land that is not zoned for residential purposes.

  1. The site has been identified with a minimum density target of 15 dwellings per hectare. On the carrying out of all the stages of the proposed development, if a dwelling is constructed on each of the subdivided lots, it meets the minimum density target. Although dwellings are not proposed on the subdivided lots other than those on which the semi-detached dwellings are proposed, each of the subdivided lots meets the minimum lot size in s 4.1AB(3) for the construction of a dwelling house and the agreed conditions of consent contain a condition requiring the imposition of a restriction on title to the effect that only a residential dwelling can be constructed on each of the lots to be created by the subdivision. The parties agree that, on this basis, the dwelling density in s 4.1B of the Precinct Plan is achieved by the proposed development. As a result of their agreement on this point, I need not consider whether a dwelling is required to be proposed on each of the subdivided lots in order to satisfy the requirements of s 4.1B.

  2. The Liverpool Growth Centre Development Control Plan 2021 (LGC DCP) applies to the site, and Part 2.2 requires that development applications be in accordance with the applicable Indicative Layout Plan (ILP). The applicable ILP is at Figure 2-1 of Schedule 1 to the LGC DCP and an extract depicting the site is at Figure 3.

  1. Part 3.1.2 sets out requirements for the block and lot layout, including a minimum frontage of 9m for lots in areas where a dwelling density of 15 dwellings per hectare applies. Where lots are proposed with a frontage of less than 9m, Part 3.2 requires the development application to be for integrated housing, so that dwellings form part of the development application. For the lots in the proposed development with a frontage of less than 9m, semi-detached dwellings are proposed.

  2. In relation to the street network in the ILP, Part 3.3.1 of the LGC DCP states as follows:

“8. Variations to the residential street network as permitted under control 7 above will only be approved by Council where the applicant can demonstrate to Council’s satisfaction that the proposal:

• will not detrimentally impact on access to adjoining properties, provides for the management of stormwater to drain to Council’s trunk drainage network, without negative impacts on other properties,

• will not impede the orderly development of adjoining properties in accordance with the relevant Precinct Plan and this Development Control Plan, and

• does not restrict the ability to provide water, sewer, electricity and other essential services to the development or to development on adjoining properties.

…

13. Where streets are proposed as part of an application for subdivision that are located adjacent to public recreation land, drainage land, community facilities or schools, the applicant will be responsible for construction of the full width of the street, unless Council specifies otherwise.”

  1. Where development is occurring progressively and an adjacent site is not being developed, a half road is required by clause 6 of Part 3.3.7, as follows:

“6. A half road is required where a street, as indicated by the precinct Indicative Layout Plan or as otherwise required, is located on the boundary of the property being developed, and where the adjacent lot is not being developed. The type of half road construction will depend upon the road hierarchy and anticipated traffic volume on the street. The applicant will cover all costs associated with the design of the full road width and construction of half the full width pavement, including temporary and permanent drainage infrastructure, and adequate transitions to full width cross sections.”

  1. Part 3.3 of the LGC DCP concerns the requirements for street design, and the requirements for a local road include a two-way carriageway with sufficient additional width on both sides for parking, a landscaped verge and pedestrian paths.

Owners’ consent

  1. Section 23(1) of the EPA Regulation 2021 allows a development application to be made by the owner of the land, or by another person “with the written consent of the owner of the land”.

  2. On 25 May 2022 the owners of the site signed a letter of owners’ consent, which gives consent for Austral Property to lodge a subdivision application “in accordance with the planned [sic] attached hereto and marked “A” relating to our property including lodging any related documents or applications reasonably required to obtain approval for such subdivision application”.

  3. The plans attached to the letter depict a pattern of subdivision that differs from that which is now the proposed development. Nonetheless, it is well established that the owners’ consent cannot be qualified (see Crowley v Hastings Municipal Council (1982) 4 APA 115 at 121) and that, once given, cannot be withdrawn (see Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52 at 55-56).

Notification of the development application

  1. Pursuant to the Council’s Community Participation Plan, the development application as originally lodged was not required to be notified. As a result of the amendments to the development application, notification was required. The amended development application was notified from 13 to 27 July 2023, and two submissions were received. I have considered the issues raised in those submissions, which are not actually issues that arise on the design of the proposed development.

The expert evidence

  1. Expert town planning opinion evidence was given in a joint report and a supplementary report by Mr Brendon Clendenning, a town planner engaged by the Council, and Mr Ali Hammoud, a town planner engaged by Austral Property. Their evidence is considered below, in the context of the contentions raised by the Council.

Each of the contentions raised by the Council have been resolved

  1. The Council’s contentions are set out in an Amended Statement of Facts and Contentions filed on 30 June 2023. As a result of the amendments made to the development application through the course of the hearing, the Council now agrees that each of the contentions raised in the Amended Statement of Facts and Contentions has been resolved. This is supported by the evidence of Mr Clendenning and Mr Hammoud.

Dwelling density

  1. The Council’s contention was that the proposed development does not meet the minimum dwelling density requirement in cl 4.1B of the Precinct Plan in circumstances where the development relies upon the completion of all stages to meet the minimum dwelling density requirements. The contention was that the dwelling density is not met by each stage of the development and, without there being any mechanism to ensure that each stage is delivered in a timely manner, the application “hinders the attainment of the dwelling density requirement”.

  2. Mr Clendenning and Mr Hammoud agree that the proposed development, as amended, allows the development to achieve the density required by cl 4.1B of the Precinct Plan at stage 2. The amendments brought forward 8 lots from stage 3 into stage 2, which increased the residential density at stage 2. In addition, the parties have agreed to the following condition, condition 152, being imposed on the consent in order to ensure the delivery of stage 3 within a reasonable timeframe after stage 2:

“The plan of subdivision for Stage 2 must be supported by an 88B Instrument, agreed to by Council. The 88B Instrument must burden Lot 1 within Stage 2 so as to require that Stage 3 demolition works be completed no later than 36 months following the issue of the subdivision certificate associated with Stage 2.”

  1. As a result of the development achieving the density of 15 dwellings per hectare as early as stage 2, the Council is satisfied that the proposed development achieves the appropriate dwelling density intended for the site.

  2. The parties agree, and I accept, that the satisfaction of the dwelling density required by cl 4.1B is not affected by the staging, and relates to the proposed development as a whole. For the reasons set out above at [21] and [22], the requirements of this clause are satisfied.

  3. Nevertheless, the concern of the Council was one of merit – whether it was appropriate to grant development consent to a staged development that would not achieve the dwelling density requirements of the Precinct Plan until all stages were carried out. This concern has now been resolved by the density of 15 dwellings per hectare being achieved at stage 2, together with the condition compelling the carrying out of stage 3 demolition works within 36 months of the subdivision certificate associated with stage 2. I accept that this is an adequate resolution of this issue, and that the contention raised by the Council concerning dwelling density does not warrant refusal of the development application.

Consistency with the Indicative Layout Plan

  1. The Council’s contention is that the proposed development does not achieve satisfactory compliance with the Indicative Layout Plan. There are three aspects to this contention. The first is that the engineering plans did not specify the road infrastructure to be provided within each stage. The second is that, due to the retention of the western dwelling on Lot 1, the full half-width road for Wargaldarra Road was not proposed to be constructed until stage 3. The third is that the development did not include the construction of road 16, along the southern boundary.

  2. Each of these aspects of the contention are now agreed to have been resolved. Firstly, the development plans specify the road infrastructure to be carried out at each stage. Secondly, the full half-width road for Wargaldarra Road will be constructed in Stage 3 of the development, consistent with the requirements of the LGC DCP. In the interim, for stage 2, in which the western dwelling is to be retained, Austral Property proposes to build part of the half-width road to allow for two-way vehicular movement and parking on the existing half-road, together with a pedestrian pathway that is separated from the traffic by safety barriers. This pathway will be demolished in stage 3, when the full half-width road is constructed. Thirdly, in relation to the construction of road 16, Mr Clendenning and Mr Hammoud agree that the road can be delivered in other ways, and is not required to form part of the proposed development.

  3. For the reasons described above, I therefore accept that none of the matters raised in the contention concerning the indicative layout plan warrant refusal of the development application. The proposed development seeks to deliver on the indicative layout plan in a manner that retains the existing eastern dwelling on the site, with a staged proposal so that the western dwelling can be retained through the first two stages. This is appropriate in circumstances where Mr Clendenning and Mr Hammoud agree that there is merit in the retention of the functional dwellings that have not reached the end of their usable life.

Poor subdivision design

  1. The Council also contended that the subdivision design was poor. In support, it relied on clause 2 of Part 3.1.1 of the LGC DCP, which requires residential development within the 15-20 dwelling per hectare density band to have the following typical characteristics:

“…

h. Predominantly a mix of detached dwelling houses, semi-detached dwellings and dual occupancies with some secondary dwellings.

i. Focused areas of small lot dwelling houses in high amenity locations.

j. At 20dw/Ha, the occasional manor home on corner lots.

k. Single and double storey dwellings.

l. Mainly suburban streetscapes, the occasional urban streetscape.”

  1. In addition, this contention relates to the requirements for a mix of lot frontages, which are set out in clauses 7, 8 and 9 as follows:

“7. A range of residential lot types (area, frontage, depth, zero lot and access) must be provided to ensure a mix of housing types and dwelling sizes and to create coherent streetscapes with distinctive garden suburban, suburban and urban characters across a neighbourhood.

8. In density bands ≤20dw/Ha no more than 40% of the total residential lots proposed in a street block may have frontage of less than 10m wide.

9. In density bands ≤25dw/Ha, total lot frontage for front accessed lots greater than or equal to 7m and less than 9m should not exceed 20% of any block length due to garage dominance and onstreet parking impacts.”

  1. The proposed development, as amended, complies with clauses 8 and 9 and is responsive to Mr Clendenning’s comments in the supplementary joint report for a suitable design for the lots fronting Weetjella Road. As such, the parties agree that this contention is resolved.

  2. Given the mix of lot sizes and design that are proposed, and that the proposed development now complies with clauses 8 and 9 of the LGC DCP, I am satisfied that the subdivision design is appropriate and that this contention does not warrant refusal of the development application.

Dwelling design

  1. The Council also raised a contention that elements of the new and retained dwellings are not acceptable having regard to provisions of the LGC DCP. In particular, the Council contended that the retention of the existing dwellings was not compatible with the geometric arrangement of the development proposed elsewhere on the site or on surrounding land, and that the proposed dwellings did not comply with the requirement in clause 5 of Part 4.2.3 of the LGC DCP for garages to be setback 1m behind the building line.

  2. In relation to the former, Mr Clendenning’s evidence is that the retention of the two dwellings will result in buildings that “have no meaningful relationship with the new dwellings in the precinct and will exacerbate the visual and streetscape impacts of the partial completion of Wargaldarra Road” (Ex 3 p 24).

  3. I do not accept that this is a reason for refusal of the development application. Mr Clendenning and Mr Hammoud agree that there is merit in the retention of the functional dwellings that have not reached the end of their usable life. The western dwelling will be demolished as part of stage 3 of the proposed development, and I accept the evidence of Mr Hammoud that it is not uncommon for areas undergoing transition to feature a mixture of streetscapes. There is no requirement in the LGC DCP for consistent geometric arrangement of buildings along a street, and the LGC DCP instead envisages a range of residential lot types to achieve a range of dwelling types (see Part 3.1.1 clause 7). I accept Mr Hammoud’s evidence that the retention of the eastern dwelling will not cause any adverse streetscape impact and is therefore acceptable.

  4. In relation to the requirement for the proposed dwellings to have garages setback 1m behind the building line, Mr Clendenning and Mr Hammoud agree that the proposed dwellings each comply as the garages of those dwellings are setback 5.5m from the boundary and at least 1m behind the front porch or first floor balcony of the dwelling.

  5. For those reasons, I accept the agreed position of the parties that this contention is resolved and does not warrant refusal of the development application.

Bushfire safety authority

  1. The Council raised a contention that the development application is not acceptable in circumstances where the concurrence of the NSW Rural Fire Service has not been obtained, contrary to the requirements of s 100B of the Rural Fires Act 1997. The concurrence of the NSW Rural Fire Service was sought by the Council, but no response was received.

  2. Although the NSW Rural Fire Service has not issued concurrence in accordance with s 4.47 of the EPA Act, the Court nevertheless has the power to determine the appeal pursuant to s 39(6)(a) of the Land and Environment Court Act 1979. This contention, therefore, does not warrant refusal of the development application.

  3. The parties have agreed to a condition of consent that requires a bush fire safety authority to be obtained with general terms of approval, pursuant to s 100B of the Rural Fires Act 1997, before the issue of a subdivision works certificate.

Public Interest

  1. The Council also raised a contention that the proposal was contrary to the public interest. However, Mr Clendenning and Mr Hammoud agree that, on the resolution of all contentions, the proposed development will be in the public interest. Therefore, there is no issue of public interest that warrants refusal of the development application.

Insufficient information

  1. Finally, the Council raised a contention identifying a range of information that had not been provided in the development application, on account of which it said that the development application should be refused.

  2. In relation to each matter raised by this contention, the parties agree that the information has either been provided or is not required to be provided. In particular, a bushfire hazard assessment has been provided and some of the deficiencies identified in the plans have been rectified. However, the parties agree that an updated Statement of Environmental Effects is not required and that a request pursuant to cl 4.6 of the Precinct Plan is similarly not required, given that the proposed development complies with the dwelling density requirements, as set out above at [21] and [22]. In addition, the parties agree that some of the issues identified in this contention can be resolved by agreed conditions of consent.

  3. As such, I am satisfied that there is sufficient information before the Court to assess the proposed development, and that this contention does not warrant refusal of the development application.

The application for leave to re-open

  1. The Notice of Motion filed on 20 September 2023 sought orders for leave to be granted to Austral Property to rely on specified amended plans, and for leave to be granted to reopen the proceedings.

  2. The Notice of Motion was supported by the affidavit of Mr Gough sworn 19 September 2023. The affidavit indicates that the amended plans are prepared “to comply with the density controls contained in Clause 4.1B of [the Precinct Plan]”. However, the parties agree that the proposed development before the Court at the hearing similarly complies with the minimum density requirements in cl 4.1B of the Precinct Plan.

  3. On 22 September 2023, following a short hearing, I dismissed the Notice of Motion. These are my reasons for so doing.

The submissions in support of the application

  1. Mr Gough made a number of submissions in support of the application. In essence, the purpose of the amended plans is to deal with an issue arising between the developer, Austral Property, and the owners of the site. The issue arises because, in the commercial agreement between the two, the owners retain proposed Lot 1 in the Stage 1 subdivision, which is the lot that has frontage to Gurner Avenue and currently contains the existing dwellings. That commercial agreement, I am informed, was based on the lot being of a size that was reflected in stage 1 of the original development application. However, Lot 1 of the proposed development now before the Court is much reduced from that size.

  2. If the development application was amended in accordance with the plans sought to be relied upon in the Notice of Motion, the 8 lots that had previously been brought forward from stage 3 to stage 2, would return back to stage 3.

  3. Austral Property submits that in either scenario, the residential density sought in s 4.1B of the Precinct Plan would be achieved, and so no issue arises that would prevent the grant of development consent. Further, Austral Property points out that any concerns with respect to realising the full density of the proposed development is dealt with by condition 152, which requires the commencement of demolition for stage 3 within 36 months of the subdivision certificate being issued for stage 2.

The Council’s submissions in reply

  1. The Council opposed the orders sought in the Notice of Motion. The Council points out that the change to the staging in the proposed amended plans re-enlivens the contention it raised concerning dwelling density, which was resolved by agreement as a result of the amendments to the staging. That is, the plans sought to be relied upon in the Notice of Motion would reverse the changes made that secured resolution of the dwelling density issue. As such, if the Notice of Motion is granted, the Council says that it would need the opportunity to put on evidence on this contention and additional hearing time would be required. The Council submits that this would result in additional time and expense, in circumstances where, at present, there is no impediment to the Court granting development consent.

The reasons for dismissal of the Notice of Motion

  1. The Court has a discretion as to whether to grant a party leave to re-open its case after final submissions and prior to judgment. The principles governing the exercise of that discretion can be found in the decision of the High Court in Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370, and again in the decision of Goldberg J in Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010. They are helpfully summarised by Brereton J in Chao v Chao (No 2) [2008] NSWSC 612, who states (at [2]):

“The ultimate question is whether the interests of justice are better served by allowing or rejecting the application. It is relevant to consider whether prejudice would be occasioned by the late introduction of the evidence to the other party. It will also be relevant to consider the materiality of the proposed additional evidence, and whether it could by reasonable diligence have been discovered before, or at least any explanation for its not having been adduced earlier. If there was a deliberate decision made not to call the evidence when it ought to have been called in the ordinary course of proceedings, that will typically tell decisively against allowing a reopening, although there is no hard and fast rule requiring the Court to reject an application even where the decision not to call a witness or tender a document was a deliberate one.”

  1. The Notice of Motion seeks that leave be granted to Austral Property to rely on specified amended plans. Although this is framed as seeking the introduction of evidence, the purpose of the amended plans goes beyond this, forming the basis for the Court to exercise the functions of the consent authority pursuant to s 38(2) of the EPA Regulation 2021 to approve an amendment to the development application. That is, the granting of the orders sought would lead to an amendment to the proposed development the subject of the Court’s consideration. The precise amendment would reverse an amendment made in the course of the hearing that resolved the contention concerning dwelling density.

  2. In dealing with the revisiting of issues that have arisen in the course of a hearing, Goldberg J makes it clear that there must be a finality to the process of litigation, as follows (Hawthorn Glen Pty Ltd v Aconex Pty Ltd at [48]):

“The interests of justice require that commercial litigation of the type in this proceeding should be conducted expeditiously and that parties should only be able, after judgment has been reserved, to re‑visit tactical decisions they have made in exceptional circumstances where injustice might otherwise result. No such exceptional circumstances exist in the present case. There needs to be a finality to the process of litigation and a limit on the number of times a party can re‑visit issues which have arisen in the course of a trial and have been addressed.”

  1. The same principles apply in the present application. There needs to be a finality to the merit appeal process and a limit on the number of times that a party can address issues in contention, either through amending a development application or putting on evidence. That limit is imposed through the fixing of hearing dates and the expectation that by the time of the hearing, the application that is before the Court is settled and understood, the contentions raised by the Council are known, evidence has been prepared on the contentions as they relate to the application, and submissions can be made based on that evidence. Throughout a hearing, tactical decisions are made by each party in various ways, including how they might respond to certain evidence. In the hearing of these proceedings, a decision was made by Austral Property to amend the development application to bring forward part of the subdivision to an earlier stage, to address an issue raised in the evidence of the Council’s town planner concerning dwelling density. The interests of justice require that parties should only be able to re-visit decisions they made during the hearing “in exceptional circumstances where injustice might otherwise result” (Hawthorn Glen Pty Ltd v Aconex Pty Ltd at [48]).

  2. In the present circumstances, there are no such exceptional circumstances and no injustice has been identified. The application is made on the basis of a commercial issue that has arisen between Austral Property and the owners of the site. This is not a sufficient basis upon which to reopen the hearing and re-visit the issue of dwelling density, an issue that was not fully argued in circumstances where it was resolved by agreement by the decision made by Austral Property, in the course of the hearing, to amend the development application.

  3. In addition, if the application to re-open the hearing is granted, there will be a further delay in bringing the merit appeal to finality. I accept the Council’s position that procedural fairness would necessitate a further hearing date so that the contention on dwelling density, resolved by amendments made at the hearing but re-enlivened by the amended plans the subject of the Notice of Motion, could be properly argued. This would cause additional cost to the parties and further delay the proceedings.

  4. For those reasons, on 22 September 2023, the Notice of Motion was dismissed.

Development consent should be granted

  1. For the reasons that I have earlier outlined, each of the contentions raised by the Council have been resolved and do not warrant refusal of the development application. The proposed development is acceptable in the circumstances and is consistent with the indicative layout plan for the site, as well as its intended density. Additionally, I am satisfied that the following preconditions to the exercise of the Court’s jurisdiction have been satisfied:

  • Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application, as amended, is accompanied by the BASIX certificates dated 12 May 2023.

  • Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Detailed Site Investigation report dated 12 September 2022, the site can be made suitable for the development, subject to the carrying out of a number of steps, which have been incorporated in the conditions of consent.

  1. Development consent should therefore be granted, subject to the conditions of consent that are agreed to by the parties.

  2. The Court orders that:

  1. The appeal is upheld.

  2. Development consent is granted to DA-1025/2022 for the staged development of land at 48-50 Gurner Avenue, Austral including the staged demolition of existing structures and subdivision of land into 39 Torrens title lots, the construction of Weetjella Road and partial construction of Wargaldarra Road, the construction of 6 semi-detached dwellings and the retention of an existing dwelling and out building, subject to the conditions of consent at Annexure A.

  3. Exhibits 2 and 6 are returned, the remaining exhibits are retained.

J Gray

Commissioner of the Court

343239.22 Annexure A

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Decision last updated: 20 October 2023

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Chao v Chao (No 2) [2008] NSWSC 612
Goldsmith v Sandilands [2002] HCA 31
BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54