Darwich v Liverpool City Council

[2025] NSWLEC 1226

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Darwich v Liverpool City Council [2025] NSWLEC 1226

Hearing dates:

Conciliation conference held on 4 February, 25 February and 21 March 2025

Date of orders:

11 April 2025

Decision date:

11 April 2025

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA-393/2023 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) The appeal is upheld.

(3) Consent is granted to Development Application DA-393/2023 (as amended) for demolition of existing structures, consolidation of two existing lots, the construction of a multi-dwelling development containing seven dwellings and strata subdivision at 6-8 Thompson Avenue, Moorebank, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling housing development – agreement between the parties – orders

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 27, 37, 38

Liverpool Local Environmental Plan 2008, cll 2.3, 2.7, 7.7

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Category:

Principal judgment

Parties:

Sam Darwich (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)

Solicitors:
Storey and Gough Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/264314

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Sam Darwich (the Applicant), against the refusal of Development Application DA-393/2023 (the DA) by Liverpool City Council (the Respondent).

2. At the date of its lodgement on 30 June 2023, the DA sought consent for the demolition of existing structures, consolidation of two existing lots, and construction of a multi-dwelling development comprising seven dwellings, and associated strata subdivision at 6-8 Thompson Avenue, Moorebank (the site).

3. The Court arranged a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 February, 25 February and 21 March 2025. I presided over the conciliation conference.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of inadequate on-site car parking, loss of on-street car parking, inadequate provision for waste management, impacts on neighbourhood character and streetscape presentation, and inadequate building design and appearance amongst other contentions.

6. Agreed design amendments have been made to rationalise the configuration of on-street and on-site parking, including the introduction of visitor car parking. Additionally, some adjustment to the form and siting of dwellings has been made to improve the streetscape presentation. These amendments and conditions of consent are agreed to resolve each of the contentions.

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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The DA was publicly notified from 1 August to 16 August 2023. No submissions were received by the Respondent. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

11. The parties agree, and I am satisfied, that the Liverpool Local Environmental Plan 2008 (LLEP) is the relevant local environmental planning instrument. The site is zoned R4 High Density Residential. The amended DA - characterised as multi-dwelling housing - is permissible with consent.

12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the LLEP, the amended DA is consistent with the relevant R4 High Density Residential zone objectives which include:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for a high concentration of housing with good access to transport, services and facilities.

• To minimise the fragmentation of land that would prevent the achievement of high density residential development.

13. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the LLEP, consent is required to carry out demolition, and accordingly consent for the demolition of existing structures is sought within the amended DA.

14. The parties agree, and I am satisfied, that all principal development standards of the LLEP, including for height of building and floor space ratio, have been met by the amended DA.

15. The parties agree, and I am satisfied, that pursuant to cl 7.7 of the LLEP - Acid sulfate soils - the site is not mapped within any classified area and hence the amended DA does not require an acid sulfate soils management plan.

16. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Pursuant to s 4.6 of SEPP Resilience, I am satisfied that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated. Agreed conditions of consent deal with any new information that may arise during demolition or construction that has the potential to alter conclusions regarding contamination.

17. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

18. Chapter 6 of SEPP BC deals with water catchments and applies to the amended DA due to the site being situated within the Georges River Catchment.

19. Pursuant to the provisions of s 6.6 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon water quality and quantity within the catchment. Agreed conditions of consent are imposed to control erosion and sediment during construction.

20. Pursuant to the provisions of s 6.7 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon aquatic ecology within the catchment.

21. Pursuant to the provisions of s 6.8 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no impact upon periodic flooding that benefits wetlands or riverine ecosystems within the catchment.

22. Pursuant to the provisions of s 6.9 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no impact upon recreational land or public access to foreshores or natural water bodies within the catchment.

23. Pursuant to the provisions of s 6.10 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no adverse impacts upon adjacent or downstream local government areas within the catchment.

24. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings).

25. Pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021, separate BASIX certificates, numbered 1372219S_02, 1372246S_02, 1372264S_02, 1372265S_02, 1372279S_02, 1372292S_02 and 1372293S_02, each dated 2 June 2023, have been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with these BASIX certificates.

26. Pursuant to s 2.1(5) of SEPP Sustainable Buildings, the parties agree, and I am satisfied, that each of these BASIX certificates quantifies the embodied emissions attributable to the proposed development.

27. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

28. The Court notes that:

1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 24 March 2025.

Orders

29. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA-393/2023 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. The appeal is upheld.

3. Consent is granted to Development Application DA-393/2023 (as amended) for demolition of existing structures, consolidation of two existing lots, the construction of a multi-dwelling development containing seven dwellings and strata subdivision at 6-8 Thompson Avenue, Moorebank, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A (353224, pdf)

Architectural Plans (15151303, pdf)

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Amendments

29 April 2025 - Architectural Plans uploaded.

Decision last updated: 29 April 2025