Darwich v Liverpool City Council

[2023] NSWLEC 1153

Land and Environment Court

New South Wales

Medium Neutral Citation:

Darwich v Liverpool City Council [2023] NSWLEC 1153

Hearing dates:

Conciliation conference on 22 March 2023

Date of orders:

04 April 2023

Decision date:

04 April 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders:

(1) The appeal is upheld.

(2) Development Application No. DA 646/2022 for the demolition of existing structures and the construction of multi dwelling housing consisting of four (4), two (2) storey, dwellings with associated at grade parking at 15 Magree Crescent, Chipping Norton, is determined by the granting of Development Consent, subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – Multi Dwelling Housing - amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 4.3, 4.4, 6.5, 7.31

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

Category:

Principal judgment

Parties:

Mariam Darwich (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor)(Applicant)
C Campbell (Solicitor)(Respondent)

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

File Number(s):

2022/213289

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) by Mariam Darwich (the Applicant) against the Liverpool Council’s (the Respondent’s) deemed refusal of Development Application No. 646/2022.

2. The Development Application seeks Development Consent for the demolition of existing structures and the construction of a multi dwelling housing development consisting of four (4), two (2) storey, dwellings with associated parking at Lot 146 in Deposited Plan 243061, known as 15 Magree Crescent, Chipping Norton.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 22 March 2023.

4. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties’ agreement was to seek orders granting Development Consent to the Development Application, subject to conditions.

5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision is one 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Liverpool Local Environmental Plan 2008 (LLEP 2008), the subject site is zoned R3 Medium Density Development. The use of the land for multi dwelling housing is permissible with Development Consent in the zone. The parties are satisfied that the development is consistent with the relevant zone objectives.

2. The Development Application complies with the relevant development standards being the maximum Height of Building (cl 4.3) and the allowable Floor Space Ratio (cl 4.4) of the LLEP 2008.

3. Clause 6.5 of LLEP 2008 requires satisfaction that any required public infrastructure that is essential to the development is available. The parties have reviewed these requirements and note that the development is infill in nature and that the required services are available.

4. The parties have also reviewed and are satisfied that the proposed development does not adversely impact on the criteria contained in cl 7.31 of LLEP 2008.

5. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

6. The parties have considered, and are satisfied, that the applicable requirements under State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) have been met. These include relevant considerations of the Biodiversity and Conservation SEPP which pertain to the Georges River Catchment.

7. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). Council records indicate that the Site has been used for residential purposes for a significant period of time. The parties consider that the Site poses little to no risk of contamination and the land is considered suitable for the residential land use.

8. 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’ agreement.

9. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders. 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.

10. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

2. Development Application No. DA 646/2022 for the demolition of existing structures and the construction of multi dwelling housing consisting of four (4), two (2) storey, dwellings with associated at grade parking at 15 Magree Crescent, Chipping Norton, is determined by the granting of Development Consent, subject to the conditions set out in Annexure “A”.

Stuart Harding

Acting Commissioner of the Court

213289.22 Annexure A (381304, pdf)

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Decision last updated: 04 April 2023