Casula Developments Enterprises Pty Ltd v Liverpool City Council

[2023] NSWLEC 1438

Land and Environment Court

New South Wales

Medium Neutral Citation:

Casula Developments Enterprises Pty Ltd v Liverpool City Council [2023] NSWLEC 1438

Hearing dates:

Conciliation conference on 23 June 2023, 26 July 2023

Date of orders:

10 August 2023

Decision date:

10 August 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Consent is granted to Development Application DA-609/2021, as amended during Land and Environment Court Proceedings 2022/384949, for the demolition of the existing improvements and construction of a new service station, car wash facility and associated signage, tree removal and car parking at 694-696 Hume Highway, Casula, subject to the conditions of consent annexed hereto and marked Annexure A.

Catchwords:

APPEAL – development application – service station and carwash – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cl 7.31

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 3.12, 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Category:

Principal judgment

Parties:

Casula Developments Enterprises Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/384949

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a new service station, convenience store, carwash facility and associated signage, at 694-696 Hume Highway, Casula. The development application was lodged with the respondent on 4 June 2021. 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). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 was held on 23 June 2023 and continued on 26 July 2023. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement filed on 4 August 2023, and follows the agreement of the Council to an amendment to the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). The main changes to the proposed development are to orientate the window and entrance to the car wash facility office to the Hume Highway, provide additional landscaping to the boundaries of the site and provide additional details of the acoustic fence.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Note that sets out the history of the development application and the jurisdictional pre-requisites to the exercise of the power to grant development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a service station, which is permissible with development consent in the E3 Productivity Support zone in which the site is located, pursuant to the Liverpool Local Environmental Plan 2008 (LLEP).

• The proposed development complies with the applicable development standards in the LLEP for height and floor space ratio.

• The development application includes earthworks for the tanks and stormwater design. Based on the Statement of Environmental Effects dated May 2021, the stormwater concept design, the demolition excavation and construction waste management plan dated July 2021 and the soil salinity investigation dated May 2022, I have considered the matters set out in cl 7.31 of the LLEP.

• The site has frontage to the Hume Highway, which is a classified road, and s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) applies. It is not practicable to provide vehicular access to the site from a road other than the classified road. However, I am satisfied, as a result of the imposition of conditions of consent requiring compliance with Transport for NSW requirements, that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development. Consistent with s 2.119(2)(c), the development is of a type that is not sensitive to traffic noise.

• The proposed development is for the purposes of a potentially hazardous industry, and s 3.12 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) therefore applies. Based on the Preliminary Hazard Analysis prepared by Hazkem Pty Ltd dated October 2021, I have considered the matters in s 3.12.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the SEPP RH. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The development application was notified between 4 August 2021 and 2 September 2021, and 11 submissions were received. A number of residents also spoke at the commencement of the conciliation conference. I have considered the issues raised in the submissions and by the residents, and I note that some of those issues will be addressed through the acoustic fence that forms part of the proposed development.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes that:

1. Liverpool City Council, as the relevant consent authority, has agreed, under clause 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA-609/2021 (Amended Application) to rely upon the documents as follows:

No	Document	Date
1.	Letter in response to Statement of Facts and Contentions filed on 2 February 2023 prepared by BMA Urban	23 March 2023
2.	Indicative Plans prepared by D + R Architects	8 March and 20 March 2023
3.	Amended Architectural Plans prepared by D + R Architects	22 June 2023
4.	Amended Landscape Plan prepared by prepared by Elke	2 June 2023
5.	Transport for NSW letter to Liverpool Council	1 March 2023
6.	Line Marking and Sign Posting Plans in response to Transport for NSW letter dated 1 March 2022 prepared by Henry & Hymas	5 April 2022

2. That the Applicant will file the Amended Application with the Court following the section 34 conciliation conference.

3. That the Respondent is now satisfied that the contentions raised in the proceedings have been addressed by the amended plans and documents in the Amended Application.

9. The Court orders that:

1. The appeal is upheld.

2. Consent is granted to Development Application DA-609/2021, as amended during Land and Environment Court Proceedings 2022/384949, for the demolition of the existing improvements and construction of a new service station, car wash facility and associated signage, tree removal and car parking at 694-696 Hume Highway, Casula, subject to the conditions of consent annexed hereto and marked Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A (1775394, pdf)

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Decision last updated: 10 August 2023