Bella Ikea Developments Pty Ltd v Liverpool City Council

[2023] NSWLEC 1749

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bella Ikea Developments Pty Ltd v Liverpool City Council [2023] NSWLEC 1749

Hearing dates:

Conciliation conference on 20 November 2023

Date of orders:

08 December 2023

Decision date:

08 December 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No DA-660/2022 for the subdivision of land into 55 lots, construction of roads and associated civil works on land identified as Lot 1 in DP 233174 known as 201 Gurner Avenue, Austral, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision of 55 residential lots and associated works

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Western Parkland City) 2021, Appendix 4 ss 2.6, 6.1

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

Category:

Principal judgment

Parties:

Bella Ikea Developments Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2022/374660

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No DA-660/2022 for a 55 lot residential subdivision (the proposal), at 201 Gurner Avenue, Austral (the site), by Liverpool City Council (the Council).

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 20 November 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. 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 development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

5. The application was amended on 29 September 2023.

The site and its context

6. The site is rectangular with an area of 2.734ha (27,340m²). The site is located on the north side of Gurner Avenue with a frontage to Gurner Avenue of 65.64m.

7. There is a dwelling, outbuildings, intensive agriculture igloos and a large dam on the site. The site is currently used for residential, market-garden agricultural purposes.

8. The site is bushfire prone. The site is located across two drainage sub-catchments being traversed by overland flows generally draining to Kemps Creek, to the west and north-west.

9. The area is currently transitioning from semi-rural to a low density suburban residential precinct.

The proposal

10. The proposal is for a residential Torrens title subdivision of 55 lots, demolition of existing structures, removal of vegetation, site remediation, dam demolition and de-watering, construction of roads and associated civil works, over 4 stages.

Jurisdictional pre-requisites to the grant of consent

11. The proposal is integrated development pursuant to s 4.46 of the EPA Act. The site is identified as bushfire prone land, requiring a Bushfire Safety Authority pursuant to s 100B of the Rural Fires Act 1997. The Rural Fire Service (RFS) issued General Terms of Approval (GTAs) and a Bushfire Safety Authority in respect of the proposal, and those GTAs are included in the conditions of consent at Annexure A.

12. The site is zoned R2 Low Density Residential pursuant to State Environmental Planning Policy (Western Parkland City) 2021 (SEPP Western Parkland City). The Liverpool Growth Centres Precinct Plan (Liverpool Growths Centre PP) is Appendix 4. The proposal is permissible with consent pursuant to s 2.6 of SEPP Western Parkland City.

13. I accept the Council’s submission that the public utility infrastructure essential to the proposal is available or that adequate arrangements have been made to make that infrastructure available when it is required, pursuant to s 6.1 of the Liverpool Growths Centre PP.

14. I accept the Council’s submission that the proposal is suitable for the site, pursuant to s 4.6 of the State Environmental Planning Proposal (Resilience and Hazards) 2021.

Conclusion

15. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 20 November 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

16. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No DA-660/2022 for the subdivision of land into 55 lots, construction of roads and associated civil works on land identified as Lot 1 in DP 233174 known as 201 Gurner Avenue, Austral, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

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Annexure A

Decision last updated: 08 December 2023