Buchtmann v Liverpool City Council

[2024] NSWLEC 1305

Land and Environment Court

New South Wales

Medium Neutral Citation:

Buchtmann v Liverpool City Council [2024] NSWLEC 1305

Hearing dates:

Conciliation Conference 22 April, 9, 27 and 29 May 2024

Date of orders:

07 June 2024

Decision date:

07 June 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application DA-1343/2021 for the construction of a steel frame shed on 44 Findley Road Bringelly, also known as Lot 55 in DP 27550, is determined by the granting of consent, subject to the conditions set out in Annexure A to this Agreement.

Catchwords:

DEVELOPMENT APPEAL – steel frame shed on large lot residential land – ancillary to dwelling – consideration of contamination - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008

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

Category:

Principal judgment

Parties:

Luke Buchtmann (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
T Cork (Solicitor)(Applicant)
A Jucha (Respondent)

Solicitors:
McPhee Kelshaw (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2023/353575

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA-1343/2021 for the construction of a steel frame shed (the Proposed Development) at 44 Findley Road Bringelly legally described as Lot 55 in DP 27550 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 22 April, 9, 27 and 29 May 2024. I presided over the conciliation conference.

3. 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 the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. 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 to be the terms of permissible development pursuant to the Land Use Table in the Liverpool Local Environmental Plan 2008 (LLEP) and the terms of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) regarding potential contamination of land. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed submission on jurisdiction.

7. The Respondent had raised a number of contentions in the Statement of Facts and Contentions filed 4 December 2023 and two of these contentions involve the satisfaction of jurisdictional prerequisites namely, permissibility (Contention 1) and contamination (Contention 2).

8. The parties explained that in relation to permissibility, the Respondent is now satisfied that the Proposed Development is permissible under the LLEP because the Site is zone R5 Large Lot Residential, where development for the purpose of a dwelling house is permissible. The proposed steel frame shed will be development and used for a purpose that is ancillary to the dwelling house located on the Site and occupied by the Applicant and his family. The Proposed Development does not fall within the definition of a farm building because there is no agricultural use being conducted within the Site and the Proposed Development will not facilitate any such separate agricultural use.

9. The Conciliation Conference was initially adjourned to allow the Applicant to obtain and rely on a Stage 1 - Preliminary Site Investigation Report (PSI) prepared by Neo Consulting dated 6 May 2024. This PSI serves to satisfy the second contention and the terms of s 4.6 of the SEPP Resilience and Hazards. Firstly, there is no change of use of the Site as the Proposed Development is ancillary to the dwelling house located on the Site. Secondly, there has been consideration of whether the Site is contaminated, and the PSI concludes that “based on the site investigation and analytical results, NEO Consulting considers that the potential for significant contamination on onsite soil to be low and find that the site is suitable for the proposed development and land use (Residential A), provided the Recommendations within Section 15 are undertaken.” This report and the conditions of consent thereby satisfy the terms of s 4.6(1) of the SEPP Resilience and Hazards and resolve the contention regarding contamination.

10. 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. I adopt the reasons given by the parties as set out in this judgment.

11. 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.

Notations:

12. The Court notes that the Respondent Council as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA-1343/2021 to rely on the Preliminary Site Inspection Report prepared by Neo Consulting dated 6 May 2024.

Orders:

13. The Court orders:

1. The appeal is upheld.

2. Development Application DA-1343/2021 for the construction of a steel frame shed on 44 Findley Road Bringelly, also known as Lot 55 in DP 27550, is determined by the granting of consent, subject to the conditions set out in Annexure A to this Agreement.

E Espinosa

Commissioner of the Court

353575.23 Annexure A

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Decision last updated: 07 June 2024