CGF 101 Pty Ltd v The Hills Shire Council

[2025] NSWLEC 1000

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

CGF 101 Pty Ltd v Liverpool City Council [2025] NSWLEC 1000

Hearing dates:

Conciliation conference on 12 September 2024

Date of orders:

02 January 2025

Decision date:

02 January 2025

Jurisdiction:

Class 1

Before:

Young AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA-595/2023 for the demolition of the existing structures, tree removal, associated roadworks and civil works, and a staged subdivision of the land to create 44 Torrens title residential lots and 1 infrastructure lot at 350 Edmondson Avenue, Austral is determined by the grant of development consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – subdivision of residential lots – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.47

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Water Management Act 2000, s 91

Environmental Planning and Assessment Regulation 2021, ss 23, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.8

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48, 2.119

State Environmental Planning Policy (Precincts – Western Sydney Parklands) 2021, ss 2.3, 2.6, 2.7, 4.1AA, 4.1AB, 4.1AD, 4.1B, 5.10, 6.1, Appendix 4

Category:

Principal judgment

Parties:

CGF 101 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
A Jucha (Respondent)

Solicitors:
Mills Oakley (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/104968

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Liverpool City Council of Development Application DA-595/2023 (DA).

2. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), Liverpool City Council has approved amending the DA in accordance with the amended plans and supporting material listed in the agreed conditions of consent (Condition 2 in Annexure A of this judgment). As the DA is the subject of Court proceedings, the amended DA is not required to be lodged on the NSW Planning Portal per s 38(4) of the EPA Regulation.

3. The DA, as amended, seeks development consent for demolition of the existing structures, tree removal, associated roadworks and civil works, and a staged subdivision of the land to create 44 Torrens title residential lots and 1 infrastructure lot at 350 Edmondson Avenue, Austral (the site).

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 12 September 2024.  I presided over the conciliation conference.

5. On 18 November 2024, the parties submitted an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

6. This decision involved the Court upholding the appeal and granting development consent to the Development Application, and subject to conditions in Annexure A.

7. 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.

8. The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.

Jurisdictional Prerequisites

9. Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, 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, as set out below.

Landowner’s Consent

10. In accordance with s 23(1) of the EPA Regulation, I am satisfied that the DA was lodged with the consent of the owners of the land to which the development relates.

Public Notification

11. The DA was lodged on 20 November 2023 and notified between 24 November 2023 and 13 December 2023. No submissions were received during the notification period.

Integrated Development

12. Pursuant to s 4.46 of the EPA Act, the DA is integrated development as it requires authorisation under the Rural Fires Act 1997 and the Water Management Act 2000.

13. The DA was referred to the NSW Rural Fire Service, which issued General Terms of Approval and a Bushfire Safety Authority pursuant to s 100B of the Rural Fires Act 1997 on 29 January 2024.

14. The Department of Planning and Environment – Water issued its General Terms of Approval in relation to the proposed controlled activity on 30 January 2024 pursuant to s 91(2) of the Water Management Act 2000.

15. The amended DA does not change the proposed development in a manner that would alter the General Terms of Approval from the integrated approval bodies.

16. In accordance with s 4.47(3) of the EPA Act, the conditions of consent in Annexure A are consistent with the General Terms of Approval proposed to be granted by the relevant integrated development approval bodies in relation to the proposed development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP)

17. The site is mapped as being within the Hawkesbury Nepean Catchment and is subject to the general planning controls in Chapter 6, Division 2 of the Biodiversity SEPP.

18. Based on consideration of the documentation provided by CGF 101 Pty Ltd and the proposed conditions of consent in Annexure A, the parties agree and I am satisfied that the proposed development will not result in an adverse impact on the Hawkesbury Nepean Catchment. This includes consideration of the following plans and reports:

1. Amended Waste Management Plan prepared by North Western Surveyors;

2. Amended Concept Water Management Plan prepared by North Western Surveyors;

3. Updated Flood Study Report prepared by JCO Consultants; and

4. Amended Civil Engineering Plans.

19. In particular, I am satisfied that the effect of the proposed development on the quality of water entering a natural water body will be neutral or beneficial and that the impact on water flow in a natural waterbody will be minimised, pursuant to s 6.6(2) of the Biodiversity SEPP.

20. I am also satisfied, in accordance with s 6.8(2) of the Biodiversity SEPP, that even in the event of a flood, the effects of the proposed development on water entering a natural water body will be neutral or beneficial and that there will be no adverse impacts on neighbouring properties (upstream or downstream) or any wetlands and other riverine ecosystems.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

21. Section 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent to any development on land unless it has considered whether a site is contaminated land or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

22. In accordance with s 4.6(3), CGF 101 Pty Ltd has provided the following documentation which confirms the appropriate remediation strategies and concludes that the site can be made suitable for the proposed development:

1. Stage 1 Preliminary & Stage 2 Detailed Site Investigation prepared by Sydney Environmental Group;

2. Soil Salinity Assessment prepared by Sydney Environmental Group; and

3. Remedial Action Plan prepared by Sydney Environmental Group.

23. The Site Investigation identified asbestos containing materials that were considered likely to pose a human health inhalation risk. Accordingly, a Remedial Action Plan and Soil Salinity Assessment was prepared to detail the further steps required to remediate identified asbestos impacts within the site to a level suitable for the proposed development.

24. The Remedial Action Plan and Soil Salinity Assessment confirms that the site can be made suitable for the proposed development subject to a number of recommendations. The recommendations of these reports have been appropriately reflected within the agreed conditions of consent.

25. On this basis, the parties agree and I am satisfied, that the land is suitable for the proposed development, subject to the conditions of consent in Annexure A.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP)

26. In accordance with s 2.48(2) of the T&I SEPP, the parties agree and I am satisfied, that the relevant electricity supply authority (that is Endeavour Energy) was notified in writing, and that concurrence from Endeavour Energy was provided on 24 November 2023, and the advice provided incorporated into the conditions of consent in Annexure A.

27. In accordance with s 2.119(2)(a)-(c) of the T&I SEPP, the parties agree and I am satisfied that these requirements have been met, noting Edmondson Avenue was a local road, but due to future planned upgrades, it is now mapped as a classified road.

28. In particular, I note that vehicular access to the site is via Thirteenth Avenue, which is not a classified road; the nature of the development is a residential subdivision with limited traffic generation that will not adversely affect the safety, efficiency and ongoing operation of Edmondson Road; and measures have been proposed to ameliorate potential traffic noise and vehicle emissions within the site arising from the adjacent classified road, including the layout of the internal road network and the inclusion of setbacks and a retaining wall adjacent to Edmondson Road.

State Environmental Planning Policy (Precincts – Western Sydney Parklands) 2021 (Precincts SEPP)

29. Pursuant to Land Application Map LAP_007, the site is located within the Austral Precinct and is subject to the controls in Appendix 4 – Liverpool Growth Centres Precinct Plan.

30. Appendix 4 - Liverpool Growth Centres Precinct Plan (Precinct Plan) applies to the site. Under the Precinct Plan, the site is primarily zoned R2 Low Density Residential with parts of the site zoned R3 Medium Density Residential and SP2 Local Drainage.

31. Pursuant to s 2.7, demolition is permissible with consent on any land to which the Precinct Plan applies. Pursuant to s 2.6, the subdivision is permissible with consent on any land to which the Precinct Plan applies. Consequently, the proposed development which comprises demolition and subdivision is permissible with consent.

32. Pursuant to s 2.3 (Zone objectives and land use table), the Court must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The parties agree, and I am satisfied that the proposed development is consistent with the objectives of the applicable zones. In particular, I note that the proposed development will provide for the housing needs of the community within both the low density and medium density zones on the site as well as installing drainage infrastructure within the SP2 Local Drainage zone.

33. Pursuant to s 4.1AA relating to Subdivision resulting in lots between 225–300m², development consent may be granted to the subdivision of land less than 300m² but not less than 225m² in Zone R2 Low Density Residential, where the consent authority can be satisfied that a sufficient building envelope to enable the erection of a dwelling house on the lot. The Development Application seeks consent for the subdivision of 14 lots that are less than 300m², but not less than 225m². Building Envelope Plans have been prepared for these lots which demonstrate that the lots will contain a sufficient building envelope to enable the erection of a dwelling house on the lot.

34. Pursuant to s 4.1AB Minimum lot sizes for residential development in Zone R2 Low Density Residential and Zone R3 Medium Density Residential, and Residential Density Map RDN_007, the minimum lot size for a dwelling house on the site is 300m². Thirty (30) of the 44 proposed lots have a site area greater than 300m². Accordingly, these lots are in compliance with the minimum lot size under s 4.1AB.

35. Pursuant to s 4.1AD Exceptions to minimum lot sizes for dwelling houses, development consent may be granted to the erection of a dwelling house on a lot that has an area less than 300m² but not less than 250m² if development consent has been granted in accordance with s 4.1AA. Although the DA does not seek approval for the erection of dwelling houses, the parties agree and I am satisfied that a future application may be granted for the erection of the dwelling house on the applicable lots as they will contain a sufficient building envelope to enable the erection of a dwelling.

36. Section 4.1B (Residential Density) provides that the density of any residential development to which this section applies is not to be less than the density shown on the Residential Density Map. Pursuant to Residential Density Map RDN_007, the minimum density requirements for the site is 20 dwellings per hectare. The net developable area of the site is 2.34 hectares and the proposal is for 44 lots, being 23 dwellings per hectare. Accordingly, I am satisfied that the proposed development complies with s 4.1B(3).

37. Pursuant to s 5.10 (Heritage), provides that, before granting development consent, the consent authority must consider the effect of the proposed development on Aboriginal cultural heritage matters, notify local Aboriginal communities in writing and consider any response from these stakeholders. The parties agree, and I am satisfied that these requirements have been complied with, including through the preparation of a detailed Aboriginal Cultural Heritage Assessment Report (ACHAR), notification of relevant Aboriginal stakeholders in accordance with the Aboriginal Cultural Heritage Consultation Requirements for Proponents, and incorporation of the recommendations of the ACHAR incorporated into the conditions of consent.

38. Pursuant to s 6.1 (Public Utility Infrastructure), development consent cannot be granted unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available and adequate arrangements have been made to make that infrastructure available when required. The parties agree, and I am satisfied that essential public utility infrastructure is available at the site, with the exception of sewage infrastructure. However, Sydney Water has confirmed that the requisite supply of sewage infrastructure will become available in FY 2025/26 which is within the 5-year life of the development consent. In the meantime, the site will be serviced by temporary pump-out sewage system which the conditions of consent require be removed once the permanent sewage infrastructure is installed by Sydney Water. Based on the above, I am satisfied that that there are adequate arrangements in place for essential infrastructure when it is required, pursuant to s 6.1(1) of the Precincts SEPP.

Section 4.15 of the EPA Act

39. Based on the Statement of Environmental Effects, various expert reports accompanying the DA, and the recommended conditions of consent in Annexure A, the parties agree and I am satisfied that the DA can be approved, taking into consideration the matters in s 4.15(1) of the EPA Act, including in regard to the likely impacts of the development, the suitability of the site and the public interest.

Conclusion

40. 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 against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

41. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

42. 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.

Orders

43. The Court orders:

1. The Appeal is upheld.

2. Development Application DA-595/2023, as amended, which seeks consent for the demolition of the existing structures, tree removal, associated roadworks and civil works, and a staged subdivision of the land to create 44 Torrens title residential lots and 1 infrastructure lot at 350 Edmondson Avenue Austral is determined by the grant of development consent, subject to the conditions of consent at Annexure A.

M Young

Acting Commissioner of the Court

Annexure A

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Amendments

08 January 2025 - Amendment made to the name of the Parties

Decision last updated: 08 January 2025