Blue Fountain Pty Ltd v Liverpool City Council

[2024] NSWLEC 1640

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blue Fountain Pty Ltd v Liverpool City Council [2024] NSWLEC 1640

Hearing dates:

Conciliation Conference on 12 August 2024

Date of orders:

15 October 2024

Decision date:

15 October 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No. DA-698/2019 is modified in the terms set out in Annexure ‘A’.

(3) Development Consent No. DA-698/2019, as modified by the Court, is set out in Annexure ‘B’.

Catchwords:

APPEAL – MODIFICATION – staging of works - conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act1979 (NSW), ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979 (NSW), s 34

Environmental Planning and Assessment Regulations 2021, s 113

Liverpool Local Environmental Plan 2008

Category:

Principal judgment

Parties:

Blue Fountain Pty Ltd (Applicants)
Liverpool City Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens (Respondent)

File Number(s):

2023/134130

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 NSW (EPA Act) in respect of a Modification Application No DA-698/2019/A (MOD) determined by Liverpool City Council to modify development consent No DA-698/2019 to introduce staging, amended building layout and design, stormwater drainage and roadworks at t 2000 Camden Valley Way, Edmondson Park, NSW being Lot 97 and Lot 100 in DP 1217431 (the Site).

Background

2. Development Application no. DA-698/2019 for the construction of serviced apartments and registered club (tavern) with 2 level basement parking, at grade car parking and associated road works, drainage and landscaping (‘Development Consent’), was approved as a deferred commencement consent by the Respondent on 4 January 2021.

3. On 30 April 2022, the Development Consent became an operational consent and the development is at an advanced stage of construction.

4. On 27 March 2023, the Respondent’s Local Planning Panel determined Modification Application no. D-698/2019/A which sought consent to introduce staging and amend building layout and design, stormwater drainage and road works at the Site.

5. On 27 April 2023, the Applicant, dissatisfied with the determination of the MOD, specifically the conditions of consent, commenced these proceedings.

6. On 11 September 2023 the parties attended a s 34 conciliation conference. However, agreement could not be reached, and the s 34 conference was terminated on 19 December 2023.

7. The matter was listed for a two day hearing on 12 and 13 August 2024 but the parties continued to engage in without prejudice discussions and have agreed that the proceedings can be disposed of by the Court in accordance with a s 34 agreement made between the parties pursuant to s 34(3) of the Land and Environment Court Act 1979 (LEC Act). The appeal commenced on Site and the Court heard from persons who had made submissions to Council. The Court accepted that the parties had reached a s 34(3) agreement that would be acceptable to the parties and which addressed the Council’s contentions. At the parties request, the hearing was converted into a s 34 conciliation conference which I presided over.

8. Integral to the agreement is the consent of Council to the amendment the Applicant’s Modification Application pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021.

Amended Modification Application

9. In summary, the proposed changes to the conditions of consent of the Modification Application include:

1. Modification of condition 3

2. Modification of condition 4

3. Deletion of conditions 10(d), 10(e) and 10(f)

4. Modification of condition 134

5. Deletion of condition 135A

6. Deletion of condition 151

7. Modification of condition 204

10. Notwithstanding the changes summarised above, the exact wording of the conditions of consent as amended by the MOD is detailed in Annexure ‘B’ to the s 34 agreement which is annexed to this judgment.

11. Under s 34(3) of the LEC Act, I must dispose of the class 1 proceedings in accordance with the parties’ decision to uphold the appeal and approve the MOD if it is a decision that the Court could have made in the proper exercise of its functions.

12. The parties’ decision involves the Court exercising the function under s4.55(2) of the EPA Act to grant the modification to the Development Consent No DA-698/2019.

The Site

13. The Site is 2000 Camden Valley Way, Edmondson Park, NSW also known legally as Lot 97 and Lot 100 in DP 1217431. The Applicant is the proprietor of the Site.

14. The Site is irregular in shape and has a frontage of 124m to Camden Valley Way, 52m to Croatia Avenue, 102m to Zeppelin Road and 28m to Solenso Lane. The total site area is approximately 8,883m².

15. The Site is zoned E3 Productivity Support pursuant to the Liverpool Local Environmental Plan 2008.

Satisfaction as to Jurisdiction

16. There are jurisdictional pre-requisites which require my satisfaction before the power to grant consent under s 4.55(2) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement (“the Statement”).

17. Taking into account the parties advice in the Statement, I am satisfied in regard to the jurisdictional matters listed below.

Section 4.55 – Environmental Planning and Assessment Act 1979

18. The Modification Application is made pursuant to s 4.55(2) of the EPA Act. In this regard, the parties are satisfied of the matters set out in s 4.55(2) and agreed that:

1. The development to which the Consent as modified relates is substantially the same development as the development for which the Consent was originally granted and the jurisdictional test is met allowing the Court to uphold the appeal and approve the modification application, as amended, under s 4.55(2);

2. The development to which the consent is proposed to be as modified by this application remains the same, the proposed amendments to the Modification Application are with respect to the conditions of consent;

3. The Modification Application has been notified in accordance with the regulations and relevant development control plan;

4. Submissions received in response to the notification of the Modification Application were considered and the submitters made oral submissions on Site with knowledge of the amendments.

19. Pursuant to s 4.55(3) of the EPA Act, the parties considered the amended Modification Application against:

• Such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the proposal, as amended; and

• The reasons given by the consent authority for the grant of the Consent.

State and Local Environmental Planning Instruments

20. Statutory planning controls applicable to the Site and the proposed development were considered by the Respondent in the previous assessment undertaken for the grant of consent. The modification proposed by this application does not raise any new jurisdictional issues which would alter previous conclusions at the development assessment stage such that I am required to re-consider each of the relevant EPIs and planning controls. I refer to the analysis undertaken in the Statement and accept the agreed position of the parties.

Conclusion

21. Based on the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, the decision is one 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Notations

22. The Court notes:

1. That pursuant to section 113(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) the Applicant applied to the Respondent consent authority for an amendment to Modification Application D-698/2019/A in accordance with the following:

2. Letter of Offer to enter in a Voluntary Planning Agreement dated 12 August 2024;

3. That pursuant to s 113(4) of the EPA Regulation, the Respondent, as the consent authority has approved the application to amend the Modification Application.

Orders

23. The Court orders that:

1. The appeal is upheld;

2. Development Consent No. DA-698/2019 is modified in the terms set out in Annexure ‘A’;

3. Development Consent No. DA-698/2019, as modified by the Court, is set out in Annexure ‘B’.

L Byrne

Acting Commissioner of the Court 

Annexure A 

Annexure B

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Decision last updated: 15 October 2024