Borg v Liverpool City Council

[2024] NSWLEC 1650

Land and Environment Court

New South Wales

Medium Neutral Citation:

Borg v Liverpool City Council [2024] NSWLEC 1650

Hearing dates:

Conciliation conference on 12 September 2024

Date of orders:

17 October 2024

Decision date:

17 October 2024

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA-116/2022 for the continued use and works of the site at 145 Mersey Road, Bringelly being Lot 16 in Deposited Plan 2650 for Landscape Material Supplies, construction of a new mulching/storage shed, use of existing buildings for office space and staff amenities, use of existing truck wash, workshop and fuelling shed, retention of existing signage, installation of wastewater management system and improvements to storm water management system, subject to conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Airports Act 1996

Environmental Planning and Assessment Act 1979, ss 4.5, 4.12, 4.15, 4.16, 4.17, 8.7, 8.11, 8.14,

Land and Environment Court Act 1979, ss 17, 34

Environmental Planning and Assessment Regulation 2000, cll 55, 271

Environmental Planning and Assessment Regulation 2021, Sch 6, s 3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9

State Environmental Planning Policy (Industry and Employment) 2021, Ch 3

State Environmental Planning Policy (Precinct– Western Sydney Parklands) 2024, Ch 4, Pts 4.3, 4.4, 4.5, ss 4.12, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22, 4.23, 4.23A, 4.32

State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 3, 4

Texts Cited:

City of Liverpool’s Aerotropolis s7.12 Contributions Plan 2024

City of Liverpool’s Community Participation Plan 2022

Category:

Principal judgment

Parties:

Tanya Borg (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Koikas (Applicant)
A Guy (Solicitor)(Respondent)

Solicitors:
Kekatos Lawyers (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2022/315001

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal against a deemed refusal by Liverpool City Council (Council) of Development Application No. DA-116/2022 (DA) which seeks a 5 year limited consent for the continued use of the site for Landscape Material Supplies, and construction of a new mulching/storage shed, use of existing buildings for office space and staff amenities, use of existing truck wash, workshop and fuelling shed, retention of existing signage, installation of wastewater management system and stormwater work on Lot 16 in Deposited Plan 2650 known as 145 Mersey Road, Bringelly NSW (Site).

2. The DA was made by APP Corporation Pty Ltd on behalf of Tanya Borg, the owner of the Site.

3. The Applicant, as owner of the Site, has standing to commence these proceedings under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. Council is the consent authority for the determination of the DA pursuant to s 4.5(d) of the EPA Act. Pursuant to s 8.14(1) of the EPA Act, on an appeal, in addition to any other power or discretion the Court has, the Court has all the functions and discretions which the consent authority had in this matter.

5. These proceedings are a development appeal against Council’s deemed refusal of the DA pursuant to ss 8.7(1) and 8.11(1) of the EPA Act.

6. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

7. The statutory power or function to be exercised in determining the proceedings are ss 4.16(1) and 8.14(1) of the EPA Act, and s 34(3) of the Land and Environment Court Act1979 (LEC Act).

8. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 12 September 2024. I presided over the conciliation conference.

9. 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. This decision involved noting the consent of the Council to amended plans and documents in the DA, upholding the appeal and granting consent to the DA subject to conditions of consent in Annexure A.

10. 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 ss 4.16(1) and 8.14(1) of the EPA Act to grant consent to the DA subject to Annexure A. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how they had been satisfied, as set out below.

Section 4.15(1)(a)(i) of the EPA Act

11. State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Western Sydney Parklands SEPP): Ch 4: Western Sydney Aerotropolis applies to the Site.

1. The Site falls within the Aerotropolis Core Precinct, and the Site is within the Enterprise Zone. The proposal for landscape material supplies is permissible within consent in the Enterprise Zone as set out in [11(2)] below.

2. Pursuant to s 4.12 of this SEPP the consent authority must have regard to the objectives of the Enterprise Zone which are:

1   Objectives of zone

•  To encourage employment and businesses related to professional services, high technology, aviation, logistics, food production and processing, health, education and creative industries.

•  To provide a range of employment uses (including aerospace and defence industries) that are compatible with future technology and work arrangements.

•  To encourage development that promotes the efficient use of resources, through waste minimisation, recycling and re-use.

•  To ensure an appropriate transition from non-urban land uses and environmental conservation areas in surrounding areas to employment uses in the zone.

•  To prevent development that is not compatible with or that may detract from the future commercial uses of the land.

•  To provide facilities and services to meet the needs of businesses and workers.

2   Permitted without consent

Nil

3   Permitted with consent

Any development not specified in item 2 or 4

4   Prohibited

Air transport facilities; Airstrips; Camping grounds; Caravan parks; Crematoria; Exhibition homes; Exhibition villages; Forestry; Heavy industrial storage establishments; Heavy industries; Helipads; Intensive livestock agriculture; Mortuaries; Open cut mining; Residential accommodation; Rural industries; Turf farming.

3. The DA, with its limit of operation to 5 years, is consistent with the Enterprise Zone objectives and the use is permissible with consent.

4. Pursuant to Pt 4.3, Airport Safeguards, the following controls do not apply to the DA or are not relevant to the DA:

1. Section 4.17: although the Site is in the ANEF contour between 25 and 30, the DA is not noise sensitive development for the purposes of s 4.17 of this SEPP. The DA is considered acceptable subject to the recommendations in the Acoustic DA Assessment prepared by Acouras Consultancy dated 20 July 2023.

2. Section 4.18: is not applicable as the Site is not within the Windshear Assessment Trigger Area on the Lighting Intensity and Wind Shear Map, and the DA does not penetrate the height of 1:35 above surface level.

3. Section 4.19: although the Site is within the 3km Wildlife Buffer Zone on the Wildlife Buffer Map, s 4.19 is not relevant to the DA as the DA is not relevant development for the purpose of s 4.19(4).

4. Section 4.20 Wind Turbines: is not relevant.

5. Section 4.21 Lighting: although the Site is within the Light Control Zones C and D on the Lighting Intensity and Windshear Map, the DA does not apply as the type of use is not listed as the type of development to which this section applies.

6. Section 4.22 Airspace operations: although the Site is within the Inner Horizontal Surface level of RL 125.5 on the Obstacle Limitations Map, the proposed development does not intrude in to the prescribed airspace and is therefore not a controlled activity under the Airports Act 1996.

7. Sections 4.23 and 4.23A: do not apply to this proposed development.

5. Part 4.4 Development Controls – General does not apply to this DA.

6. Part 4.5 Design Excellence applies to this DA.

1. Its objectives are:

4.29   Objectives

The objectives of this Part are—

(a) to ensure development in the Western Sydney Aerotropolis is consistent with the policy entitled Better Placed, published by the Government Architect NSW in May 2017, and

(b)  to deliver the highest standard of architectural, urban and landscape design.

2. The DA has been reviewed by a design review panel, and found to be acceptable. The DA is for a limited operational time of 5 years.

3. Section 4.32 Architectural Design Competition does not apply to this DA as its height limit is less than 40m above surface level.

12. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the Site as follows:

1. Chapter 3: does not apply as the proposed development does not include hazardous and offensive industry or storage of hazardous and offensive storage. The DA is not for the purpose of “industry” and therefore does not fall within the definition of hazardous or offensive storage.

2. Chapter 4: relates to the remediation of contaminated land. The Applicant has undertaken a Detailed Site Investigation Report and Site Contamination Assessment prepared by Coleman & Adams dated 8 February 2023. The report concluded that the Site was not contaminated and therefore it is suitable for the proposed development.

13. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP): Ch 9 (Hawkesbury-Nepean River) applies to the DA. The proposed development does not encroach on any environmentally sensitive land, nor does it require any asset protection zones in the event of bushfires. The Site is not near or adjacent to a conservation area, but lights will be turned off or dimmed in open areas to minimise light spill into adjoining areas to reduce impacts on any wildlife.

14. State Environmental Planning Policy (Industry and Employment) 2021: Ch 3 concerns advertising and signage and applies to the DA. The DA has been assessed against Ch 3 and is considered acceptable. The existing signage is mounted on an existing shed and it is integrated into the existing built form. The existing signage is considered to be consistent with the proposed future signage and advertising of businesses in the area.

Section 4.15(1)(b)-(e) of the EPA Act

15. The parties have considered the DA in relation to s 4.15(1)(b) and (c) of the EPA Act including the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, and concluded that as the DA is limited to 5 years with no lasting impacts on the natural or built environments, or the locality, that it is worthy of consent.

16. In relation to s 4.15(1)(a) and (d) of the EPA Act, the DA was notified in accordance with the City of Liverpool’s Community Participation Plan 2022 between 26 May 2022 and 16 June 2022. No submissions were received. There are no objectors to this proposed DA.

17. In relation to s 4.15(1)(e) of the EPA Act, the DA is in the public interest as it provides landscape supplies to this rapidly developing part of greater Sydney for the limited period of 5 years.

18. Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) applies to the DA as:

1. the DA was lodged prior to 1 March 2022; and

2. Processing of the DA is saved by Sch 6, s 3(1)(a) of the Environmental Planning and Assessment Regulation 2021.

3. Clause 271 of the EPA Regulation 2000 applies to the Site as follows:

271   Contributions plans for Western Sydney Aerotropolis

(1) For the purposes of section 4.16(11) of the Act, a development application in relation to land shown on the Land Application Map under State Environmental Planning Policy (Western Sydney Aerotropolis) 2020 must not be determined by the consent authority unless a contributions plan has been approved for the land to which the application relates.

(2)  However, a contributions plan is not required if—

(a)  the development application is, in the opinion of the consent authority, of a minor nature, or

(b)  the applicant has entered into a planning agreement with a planning authority under Part 7 of the Act for the matters that may be the subject of a contributions plan.

4. The City of Liverpool’s Aerotropolis s7.12 Contributions Plan 2024 which was adopted on 24 July 2024 applies to the Site. Draft Condition (9) in Annexure A has been agreed by the parties in applying Clauses 3 and 19 of Aerotropolis s7.12 Contributions Plan 2024.

19. The parties have agreed on the conditions of consent in Annexure A, and that they can be lawfully imposed having regard to the provisions of ss 4.16 and 4.17 of the EPA Act, and the relevant legal principles.

20. For the reasons set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

21. 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. I shall uphold the appeal and grant consent to the DA pursuant to ss 4.16(1)(a) and 8.14(1) of the EPA Act.

22. I am not required to consider the merit of the proposed development in the DA, and I have not done so.

23. The Court granted leave on 24 August 2024 for the Applicant to rely upon certain amended plans and documents. The Court notes that since 24 August 2024 the Respondent, 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 DA-116/2022 to rely upon the following plans and documents:

No	Document	Date
1.	Amended Concept Surface Water Management Plans Project No 21000583 prepared by SEEC: Drawing STW00 Title Sheet, Drawing Schedule & Site Locality Plan Rev 05 Drawing STW01 Existing Site Plan Rev 05 Drawing STW02 Proposed Development Plan Rev 05 Drawing STW03 Concept Stormwater Management Plan 1 of 3 Rev 05 Drawing STW04 Concept Stormwater Management Plan 2 of 3 Rev 05 Drawing STW05 Concept Stormwater Management Plan of 3 Rev 05 Drawing STW06 Concept Stormwater Management Typical Section & Details Plan 1 of 3 Rev 05 Drawing STW07 Concept Stormwater Management Typical Section & Details Plan 2 of 3 Rev 05 Drawing STW08 Concept Stormwater Management Typical Section & Details Plan 3 of 3 Rev 05 Drawing STW09 Water Quality Assessment & Music Model Results Summary Drawing STW10 Site Catchment Plan & Drainage Modelling Summary	1 September 2023
2.	Architectural Plan Drawing 1713 A01 Site & Location Plans Rev K	August 2023
3.	Landscape Plan L-01 Issue D Prepared by RFA Landscape Architects	30 August 2023
4.	Music Link Report	September 2023
5.	Drain models – electronic files Rev 5	September 2023
6.	Overland Flow and Flood Impact Assessment	1 September 2023

24. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA-116/2022 for the continued use and works of the site at 145 Mersey Road, Bringelly being Lot 16 in Deposited Plan 2650 for Landscape Material Supplies, construction of a new mulching/storage shed, use of existing buildings for office space and staff amenities, use of existing truck wash, workshop and fuelling shed, retention of existing signage, installation of wastewater management system and improvements to storm water management system, subject to conditions of consent in Annexure A.

M Peatman

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 17 October 2024