DDS Group Investments Pty Ltd v Liverpool City Council

[2024] NSWLEC 1674

Land and Environment Court

New South Wales

Medium Neutral Citation:

DDS Group Investments Pty Ltd v Liverpool City Council [2024] NSWLEC 1674

Hearing dates:

Conciliation conference on 14 August 2024, 2 September 2024,11 September 2024 and 18 September 2024

Date of orders:

24 October 2024

Decision date:

24 October 2024

Jurisdiction:

Class 1

Before:

Coetzee AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted for Development Application 779/2022 for Torrens title subdivision to create 28 residential lots across two stages with associated civil works including tree removal, earthworks, stormwater management works, utility services, installation and construction of roads and demolition in relation to Lots 628 and 548 in DP2475, being 27 Thirteenth Avenue and 50 Fourteenth Avenue, Austral subject to the conditions set out in Annexure ‘A’

Catchwords:

Development Application – Torrens title subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, Pt 4

Land and Environment Court Act 1979, s 34

Roads Act 1993, ss 7, 138

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2021, ss 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.6, Pt 6.6, s 6.65, Ch 9, ss 9.4, 9.5

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4, ss 1.8, 2.3, 2.6, 2.7, 4.1AA, 4.1AB, 5.9, 5.10, 6.1, Pt 2

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Sch 3

Texts Cited:

Liverpool Community Engagement Strategy and Community Participation Plan 2022

Sydney Region Growth Centres 2006 Biodiversity Certification Order

Category:

Principal judgment

Parties:

DDS Group Investments Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/00049677

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Liverpool City Council of Development Application 779/2022 (the DA) seeking consent for a Torrens title subdivision for 28 lots across two stages with associated civil works including tree removal, earthworks, stormwater management works, utility services, installation and construction of roads and demolition in relation to Lots 628 and 548 in DP2475, being 27 Thirteenth Avenue and 50 Fourteenth Venue, Austral.

2. 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 [25] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, at which I presided on 14 August 2024.

4. At the conciliation conference, the parties reached an in-principle agreement as to the scope of amendments required to reach terms of a decision that would be acceptable to both parties in the proceedings. I granted the parties an adjournment until 2 September 2024 to permit the preparation of the updated plans and documents. I also subsequently granted a further adjournment until the 11 September 2024 so that amendments and agreed conditions of consent could be finalised between the parties.

5. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed approval prepared pursuant to s 34(10) of the LEC Act was submitted to the Court on 20 September 2024, following the agreement of the Council to an amendment to the DA, pursuant ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021.

6. 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 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 jurisdictional prerequisites in order 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 conditions of consent in 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.

7. 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 as required by s 34(3) of the LEC Act. I am satisfied that the jurisdictional preconditions identified by the parties are met, for the following reasons set out below.

State Environmental Planning Policy (Precincts – Western Parkland City) 2021 Appendix 4 Liverpool Growth Centres Precinct Plan

8. The proposed site is located at 27 Thirteenth Avenue and 50 Fourteenth Venue, Austral, legally described as Lots 628 and 548 in DP2475. Austral is within the South West Growth Centre and falls within the Liverpool Local Government Area. State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (WPC SEPP) Appendix 4 Liverpool Growth Centres Precinct Plan is applicable to the proposed site and s 1.8(2) of Appendix 4 of the WPC SEPP provides that the: ‘Liverpool Local Environmental Plan 2008 ceases to apply to the land to which this Precinct Plan applies’.

9. The owner’s consent was provided with the lodgement of the Development Application Form as evidenced in the owner’s consent filed with the Class 1 Application. Consent for the associated road and drainage works from the owners of Lot 548 in DP2475 also known as 50 Fourteenth Avenue, Austral, has also been provided dated 6 August 2024.

10. The DA was notified by Liverpool Council between 21 September 2022 and 11 October 2022 in accordance with Liverpool Community Engagement Strategy and Community Participation Plan 2022. No submissions were received.

11. Section 2.3(2) of Appendix 4 of the WPC SEPP states that the consent authority must have regard to the objectives of that zone. Pursuant to Pt 2 of Appendix 4 of the WPC SEPP, the site is zoned R2 Low Density Residential, I consider that the DA will achieve the objective of the R2 Low Density Residential to provide for the housing needs of the community within a low-density residential environment.

12. The DA seeks development consent to subdivide land in accordance with s 2.6 and demolish existing structures with s 2.7 of Appendix 4 of the WPC SEPP which are both permissible with development consent.

13. Section 4.1AB of Appendix 4 of the WPC SEPP provides lot sizes for residential development in Zone R2 Low Density Residential and Zone R3 Medium Density Residential. The proposed site is zoned R2 with dwelling density specified at 15 dwellings per hectare. The minimum lot size for this site is 300m² for dwelling houses. However, subject to s 4.1AA of Appendix 4 of the WPC SEPP subdivision resulting in lots between 225-300m² development consent maybe granted to the subdivision of land to resulting in a lot that has an area of less than 300m² (but not less than 225m²), if the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot. I have reviewed the Building Envelope and Zero Lot Plan (Prepared by RPS, Issue E, dated 6 June 2022) and the Master Plan (Prepared by RPS, ISSUE I, dated 6 June 2022) which provides lot sizes of the following dimensions: 20 lots between 225-299m², seven lots 300-349m² and one lot 358-368m². I am satisfied that the plans indicate there is sufficient building envelope pursuant to s 4.1AA.

14. Section 5.9 of Appendix 4 of the WPC SEPP is for the preservation of trees or vegetation. The proposed site is located within certified land pursuant to the Sydney Region Growth Centres 2006 Biodiversity Certification Order. Pursuant to s 5.9(3) of Appendix 4 of the WPC SEPP, vegetation cannot be removed without the authority conferred by a development consent or permit granted by Council. As this DA is seeking development consent under Pt 4 of the EPA Act, I am satisfied that the vegetation removal is consistent with this requirement.

15. Section 5.10 of Appendix 4 of the WPC SEPP is for heritage conservation. The proposed site is not identified as a heritage item and an Aboriginal Due Diligence Assessment was prepared by Apex Archaeology (dated October 2021) and was provided as part of the DA and did not require any further archaeological assessment.

16. Section 6.1 of Appendix 4 of the WPC SEPP requires the provision of public utility infrastructure. A consent authority must not grant development consent unless it is satisfied that arrangements have been made for essential public utility infrastructure for the supply of water, electricity and disposal and management of sewage. The conditions of consent in Annexure A outline requirements from the relevant utility providers (Sydney Water and Endeavour Energy) and I am satisfied of this requirement.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires consideration if the site is contaminated prior to the granting of development consent. A Pavement and Salinity Assessment (JC21410A-r2 28 October 2021), Detailed Site Investigation Report (JC21410A-r1 28 October 2021) and a Remediation Action Plans (RAP) (JC21410A-r3(rev), 7 November 2023) have been prepared by the GeoEnviro Consultancy. I also note that there are conditions of consent in Annexure A regarding the implementation of appropriately qualified contamination specialists to oversee the RAP. Pursuant to s 4.6(1)(b), I am satisfied the site can be made suitable, after remediation for the purpose for which the development is proposed to be carried out.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

18. Pursuant to s 2.6(1) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) is applicable to the proposed site for clearing of vegetation in non-rural areas. DA-997/2022 was lodged on the 12 July 2022 and seeks for tree removal as part of the application. As outlined above, the site is certified land pursuant to the Sydney Region Growth Centres 2006 Biodiversity Certification Order and does not contain threatened species or threatened ecological communities, and clearing of vegetation is permitted with the granting of consent of the development application.

19. Chapters 7-12 of the BC SEPP were repealed on 21 November 2022. However, pursuant to Pt 6.6 s 6.65(1) and (3)(a) of the BC SEPP, the provisions of the repealed instrument continue to apply to a development application made but not determined on or before the commencement date. The proposed site is located within the Hawkesbury Catchment area and Ch 9 Hawkesbury-Nepean River of the BC SEPP is applicable to this site. Sections 9.4 and 9.5 of the BC SEPP set out the general planning, specific planning policies and relate strategies that need to be taken into consideration by a consent authority when determining an application for consent on land to which this chapter applies. I have considered the development application Stormwater Drainage Catchment Plan-Detailed (02516_603, Revision 02 dated 14 November 2023 prepared by C&M Consulting), Erosion and Sediment Control Plan (02516_701, Revision 06 dated 14 November 2023 prepared by C&M Consulting), the OSD/Bioretention Basin Details (02516_621, Revision 05 dated 13 August 2024 prepared by C&M Consulting), along with the conditions of consent in Annexure A which will manage the expected flow, quality and quantity of stormwater discharge from the site to manage impacts consistent with Liverpool City Council standards.

Concurrence

20. The proposed site is also identified in the South West Growth Centre Area Bush Fire Planning – Urban Release Area Map. The DA has been forwarded to the NSW Rural Fire Service pursuant to s 100B(3) of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a Section 100B Bush Fire Safety Authority which has been included in the conditions of consent in Annexure A.

21. The referral to Transport for NSW is not required under State Environmental Planning Policy (Transport and Infrastructure) 2021 Schedule 3 relating to traffic related development. Referral is required for a subdivision of land of 200 or more allotments where the subdivision includes the opening of a public road, however as the proposed development is only 28 lots, this is not required. Pursuant to s 7 of the Roads Act 1993 (Roads Act), Liverpool City Council is the road authority for the proposed public roads in the subdivision and the conditions of consent in Annexure A will address the requirements under s 138 of the Roads Act.

22. The Court notes:

1. Liverpool City Council as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA 779/2022 made on 20 September 2024 to rely on the documents and plans specified as follows:

Plan Name	Plan No.	Revision	Date	Prepared By
General Arrangement Plan	02516_201	10	12/09/2024	C&M Consulting
OSD/Bio-retention Basin Details	02516_621	05	13/08/2024	C&M Consulting
Temporary Stormwater Works	02516_901	04	09/08/2024	C&M Consulting

23. As the parties’ decision is one that the Court could make in the 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.

24. 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.

ORDERS

25. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted for Development Application 779/2022 for Torrens title subdivision to create 28 residential lots across two stages with associated civil works including tree removal, earthworks, stormwater management works, utility services, installation and construction of roads and demolition in relation to Lots 628 and 548 in DP2475, being 27 Thirteenth Avenue and 50 Fourteenth Avenue, Austral subject to the conditions set out in Annexure ‘A’.

L Coetzee

Acting Commissioner of the Court

Annexure A

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Decision last updated: 24 October 2024