Cedar Design & Construct Pty Ltd v Liverpool City Council

[2024] NSWLEC 1607

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cedar Design & Construct Pty Ltd v Liverpool City Council [2024] NSWLEC 1607

Hearing dates:

Conciliation conference on 8 July 2024

Date of orders:

01 October 2024

Decision date:

01 October 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA-547/2023 for the demolition of all of the structures above and below ground, tree removal, construction of four two-storey attached townhouses and a shared driveway, provisions of ancillary services, drainage works and landscaping and Strata Title subdivision into four lots at 5 Blackwood Avenue, Casula is determined by a grant of consent subject to conditions contained in Annexure A.

Catchwords:

APPEAL – development application – multi dwelling housing – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 37, 38

Liverpool Local Environmental Plan 2008, cll 7.7, 7.31

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.9

State Environmental Planning Policy (Housing) 2021, Ch 2, Pt 1, Div 1, ss 19, 20, Sch 7A s 8

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

Category:

Principal judgment

Parties:

Cedar Design & Construct Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor)(Applicant)
J Mee (Respondent)

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

File Number(s):

2023/452982

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a multi dwelling housing development containing 4 dwellings, including one affordable dwelling pursuant to the infill affordable housing provisions in the State Environmental Planning Policy (Housing) 2021 (SEPP Housing), at 5 Blackwood Avenue, Casula. The development application was lodged with the respondent on 25 October 2023. 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 [10] 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 8 July 2024. 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.

4. The agreement was subsequently filed on 25 September 2024, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments have reduced the bulk and scale of the proposed development, ensured adequate off street parking which complies with relevant Australian Standards, provided bin storage, adequate landscape area and areas of private open space.

5. 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 an agreed Jurisdictional Statement that sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Statement, 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.

6. 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 multi dwelling housing, which is a permissible use in the R3 Medium Density Residential zone in which the site is located, pursuant to the Liverpool Local Environmental Plan 2008 (LLEP).

• The proposed development complies with the development standards for height and floor space ratio that apply to the site pursuant to the LLEP.

• The site is mapped as containing Class 5 Acid Sulfate Soils, but the proposed works are at 41.6RL, such that the water table is unlikely to be lowered and no further consideration of cl 7.7 of the LLEP is required.

• The development application includes minor earthworks. Based on the Statement of Environmental Effects dated June 2024, I have considered the matters set out in cl 7.31(3) of the LLEP.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• Chapter 2 Pt 2 Div 1 of SEPP Housing applies to the proposed development, pursuant to the savings provision in s 8(1) of Sch 7A. Based on the Statement of Environmental Effects dated June 2024, the matters in s 19(2) have been met and I have considered the matters required to be considered by s 20.

• The site falls within the Georges River Catchment, such that Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the development application. Based on the stormwater concept plans that accompanied the Class 1 Application, I am satisfied of the matters in s 6.6(2). Further, the development will not change any public access to recreational areas of waterbodies, and I am therefore satisfied of the matters in s 6.9(2).

• The development application was notified between 3 November 2023 and 20 November 2023, and no submissions were received.

7. 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)).

8. 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.

9. The Court notes that the Liverpool City Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application DA-547/2023 to incorporate the documents listed below:

Approved Plans

Plan Number	Revision Number	Plan Title	Drawn By	Date of Plan
02	D	DEMO WASTE MANAGEMENT	Cedar Design & Construct	18.07.24
02.1	D	ROOF PLAN	Cedar Design & Construct	18.07.24
03	D	Site Plan	Cedar Design & Construct	18.07.24
04	D	GROUND FLOOR PLAN	Cedar Design & Construct	18.07.24
05	D	FIRST FLOOR PLAN	Cedar Design & Construct	18.07.24
05.2	D	LANDSCAPE PLAN	Cedar Design & Construct	APR 2023
05.3	D	GF U1 & U4 DIMENSION PLAN	Cedar Design & Construct	APR 2023
05.4	D	GF U2 & U3 DIMENSION PLAN	Cedar Design & Construct	APR 2023
05.5	D	FF U1 & U4 DIMENSION PLAN	Cedar Design & Construct	APR 2023
05.6	D	FF U2 & U3 DIMENSION PLAN	Cedar Design & Construct	APR 2023
06	D	ELEVATIONS	Cedar Design & Construct	18.07.24
07	D	SECTIONS	Cedar Design & Construct	18.07.24
08	D	FENCE PLAN	Cedar Design & Construct	18.07.24
10	D	SCHEDULE OF FINISHES	Cedar Design & Construct	18.07.24
15	D	STREETSCAPE	Cedar Design & Construct	APR 2023

Supporting documents

Document Title	Version Number	Prepared by	Date of Document
Waste Management Plan	-	Beehive Design	11/09/2023
BASIX Certificate	1399747M	Noura Al Hazzouri	28 August 2023
NatHERS Certificate	0008856650	Noura Al Hazzouri	28 August 2023
Acoustic Report	2023­273	Anvas ­ Acoustic Noise & Vibration Solutions P/L	5 September 2023
Traffic & Parking Statement	2023/452982	Hemanote Consultants	29 April 2024
Addendum Traffic & Parking Statement	2023/452982	Hemanote Consultants	23 July 2024
Addendum Statement of Environmental Effects	BMA Urban	June 2024

10. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-547/2023 for the demolition of all of the structures above and below ground, tree removal, construction of four two-storey attached townhouses and a shared driveway, provisions of ancillary services, drainage works and landscaping and Strata Title subdivision into four lots at 5 Blackwood Avenue, Casula is determined by a grant of consent subject to conditions contained in Annexure A.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 01 October 2024