De Rigueur v Liverpool City Council

[2024] NSWLEC 1369

Land and Environment Court

New South Wales

Medium Neutral Citation:

De Rigueur v Liverpool City Council [2024] NSWLEC 1369

Hearing dates:

Conciliation conferences on 14 March, 19 April and 3 May 2024

Date of orders:

02 July 2024

Decision date:

02 July 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA-1179/2022 as amended for the demolition of existing buildings, tree removal, and the construction of a child care centre with basement parking, drainage and landscaping at 62-64 Flowerdale Road, Liverpool 2170, on land legally described as Lot 7 DP 22473 and Lot B DP 414472, is approved subject to the conditions included in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – centre based child care facility - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.15, Sch 1 Div 2 cl 7

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations 2011

Environmental Planning and Assessment Regulation 2021, s 38

Liverpool Local Environmental Plan 2008, cll 2.2, 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 7.7, 7.31

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 6.6, 6.21

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.26

Texts Cited:

Child Care Planning Guideline, September 2021

Liverpool Development Control Plan 2008

Liverpool Community Participation Plan 2019

Category:

Principal judgment

Parties:

De Rigueur Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Harker (Respondent)

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

File Number(s):

2023/246202

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA-1179/2002 (the DA) for the demolition of existing buildings, tree removal, and the construction of a two storey child care centre accommodating 124 children with basement and at-grade parking, drainage and landscaping at 62-64 Flowerdale Road Liverpool NSW 2170 (legally known as Lot 7 DP 22473 and Lot B DP 414472 (the site)).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 March 2024. I presided over the conciliation conference, which began with an on-site view. There were no objectors to the proposed development.

3. The s 34 conciliation conference was adjourned to 19 April 2024 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. The s 34 conciliation conference was further adjourned to enable the parties to come to an agreement over the proposed development, including finalising the amended plans.

4. On 3 May 2024 the parties indicated that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

5. A signed s 34 agreement with Annexure A was filed with the Court on 3 May 2024, with amended plans and additional material (the amended DA) as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

6. The parties advise that a number of updates have been made to the plans and supporting material, leading to amended plans being included in the amended DA, including:

1. An updated acoustic report and Plan of Management for the proposed child care centre;

2. Detailed stormwater management plans to resolve the contention raised by the Respondent in the SOFAC, and deferred commencement of the proposed development consent pending resolution of an easement on the adjoining property to create drainage discharge point (refer to [11]);

3. Updated landscape plans and reduction in the number of trees removed from the site; and

4. Revised traffic access to the site restricted to left in, left out movements;

5. Amended architectural plans.

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. 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 that were originally in dispute between the parties.

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

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows below.

Jurisdictional Matters

Owner’s consent

10. The parties advise that owner’s consent has been provided in respect of the DA lodged for the site.

11. It is noted that the proposed development will require drainage through a downstream property at 4 Phillip Street, Liverpool (Lot 10 DP 31864) located adjoining the site to the north west, (or potentially through an alternative adjoining property fronting Phillip Street). Owner’s consent for the lodging of the DA for any of these properties has not been provided. It is proposed by the parties to provide for a deferred commencement of the development consent, as contained in Annexure A:

DEFERRED COMMENCEMENT

“Pursuant to Section 4.16 of the Environmental Planning and Assessment Act 1979, this development consent is not to operate until the applicant satisfies Council, within three (3) years of the date of issue of this deferred commencement consent, of the following:

Documentary evidence shall be submitted to Council, demonstrating that the property benefits from a registered 1.2 metre wide drainage easement over the property Lot 10 in Deposited Plan 31864. This Development Consent will not operate until the documentary evidence has been submitted to Council.  This documentation must include evidence that the easement has been registered with NSW Land Registry Services.”

Community Participation (Sch 1, Pt 1, Div 2, cl 7(1)) - Environmental Planning and Assessment Act1979

12. The DA was lodged on 2 December 2022 and exhibited between 15 August 2023 and 29 August 2023 in accordance with the requirements of the Liverpool Community Participation Plan 2019. No submissions were received in response to that notification.

Conditions

13. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Evaluation under s 4.15 - Environmental Planning and Assessment Act 1979

14. Section 4.15(1) of the EP&A Act requires the Court to take into consideration the provisions of any environmental planning instrument and any development control plan as of relevance to the development the subject of the development application.

15. The parties submit that the relevant requirements of the State Environmental Planning Policies, the Local Environmental Plan and Development Control Plan have been considered and satisfied, as set out below.

Liverpool Local Environmental Plan 2008

16. The Liverpool Local Environmental Plan 2008 (the LEP) is the relevant local environmental planning instrument that applies to the site. Under the LEP provisions:

1. The site is zoned R2 Low Density Residential pursuant to cl 2.2 of the LEP; and

1. Pursuant to cl 2.3 of the LEP the proposed development is permissible with consent in the R2 zone; and

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out;

2. Clause 2.7 of the LEP provides that the demolition of a building or work requires development consent.

3. Pursuant to cl 4.3 of the LEP the maximum height of buildings on the site is 8.5 metres; and

1. The parties advise that the height of the proposed development is less than 7 metres, and thus complies with cl 4.3;

4. Clause 4.4 relates to floor space ratio (FSR) on the site. The parties advise that the proposed development provides for an FSR less than the permissible 0.5:1 under the LEP;

5. Clause 5.10 relates to heritage conservation, and applies to the proposed development noting that the site is located adjacent to the Liverpool Cemetery (Item 47 under the LEP); and

1. The parties advise that a Heritage Impact Statement prepared by Weir Phillip Heritage and Planning was submitted with the DA to address the relevant objectives and requirements of developing within the vicinity of the heritage item;

6. Clause 5.21 relates to flood planning, and the parties advise that the site is not identified in the LEP mapping as being at or below the flood planning level;

7. Clause 7.7 relates to acid sulfate soils, and the parties advise that the site is not identified in the LEP mapping as containing acid sulfate soils;

8. Clause 7.31 relates to earthworks, and excavation is proposed to accommodate the proposed lower ground floor structures. The parties advise that the amended DA is supported by a Geotechnical Investigation Report prepared by AW Geotechnics Pty Ltd which proposes measures to prevent the disruption of soil stability and protects the existing amenity for neighbouring residences during the excavation and construction works.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

17. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) provides provisions regarding vegetation in non-rural areas. The parties advise that this is addressed in the Statement of Environmental Effects (SEE), which is focussed on describing the new landscaping proposed.

18. The site is located within the Georges River Catchment and Chapter 6 - Water Catchments of the Biodiversity SEPP is applicable to the site. This chapter generally aims to protect the environment of river systems, including the Georges River system by ensuring that impacts of future land uses are considered in a state, regional, and local context.

19. The submitted Civil Engineering Plans for stormwater management have been reviewed by Council’s Engineer and the parties have advised that no objections are raised to the proposed development, subject to conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out; and

1. The parties advise that the DA was accompanied by a Preliminary Site Investigation which concludes that the site is suitable for the proposed development and agree that the requirements of s 4.6 of the Resilience and Hazards SEPP are met; and

2. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

21. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) aims to facilitate the effective delivery of educational facilities and early education and care facilities in NSW; and

1. The SEE provides an assessment of the proposed development’s compliance with the provisions of the non-discretionary development standards in s 3.26 of the Transport and Infrastructure SEPP. The parties advise that the amended DA complies with these non-discretionary standards; and

2. The proposed development with a Floor Space Ratio (FSR) of 0.2:1 meets the maximum FSR of 0.5:1 requirement within the R2 zone contained in s 3.25.

Education and Care Service National Regulations 2011

22. The Education and Care Services National Regulations 2011 (the Regulations) provides extensive controls and requirements in addition to that of Local Environmental Plans and Development Control Plans and includes licensing and approvals processes, including documentation requirements; facilities and equipment requirements; staffing requirements; child number requirements; operational requirements; administrative requirements; and probity check requirements; and

1. The parties advise that the amended DA satisfies the requirements of the Regulations. An assessment of the proposal against the relevant provisions of the Regulations is documented in the SEE.

Child Care Planning Guideline 2021

23. The Child Care Planning Guideline 2021 establishes the assessment framework to deliver consistent planning outcomes and design quality for centre based child care facilities in NSW; and

1. The parties advise that the amended DA takes into account the requirements of the Child Care Planning Guideline 2021 as required by s 3.23 of the Transport and Infrastructure SEPP.

Liverpool Development Control Plan 2008

24. The Liverpool Development Control Plan 2008 (the DCP) applies to the site; and

1. The parties advise that the provisions of the DCP have been addressed generally in the SEE lodged with the DA.

Conclusion

25. Having considered the advice of the parties provided above at [15], I am satisfied that:

1. The Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. Approval of the proposed development is in the public interest.

26. Further, 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.

27. 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.

28. The Court notes:

1. That Liverpool City Council, as 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-1179/2022 made on 3 May 2024 to rely on the documents and plans specified below (the amended development application):

Description	Sheet No.	Rev No.	Prepared by	Date
Architectural Plans
Site Plan / Demolition	DA02.01	D	ArtMade Architects Pty Ltd	21 March 2024
Lower Ground Floor Plan	DA03.01	D	ArtMade Architects Pty Ltd	21 March 2024
Upper Ground Floor Plan	DA03.02	D	ArtMade Architects Pty Ltd	21 March 2024
Calculations	DA03.03	B	ArtMade Architects Pty Ltd	13 March 2024
Lower Ground Floor Detail Plan	DA03.04	C	ArtMade Architects Pty Ltd	21 March 2024
Upper Ground Floor Detail Plan	DA03.05	C	ArtMade Architects Pty Ltd	21 March 2024
External Elevations & Finished	DA04.01	E	ArtMade Architects Pty Ltd	21 March 2024
Sections & Fence Details	DA05.01	D	ArtMade Architects Pty Ltd	21 March 2024
Kitchen Details	DA10.10	A	ArtMade Architects Pty Ltd	13 March 2024
Stormwater Plans – Civil Sketches
Lower Ground Floor Stormwater Plan	CSK1	4	JN Responsive Engineering	20 March 2024
Upper Ground Floor Stormwater Plan	CSK2	4	JN Responsive Engineering	20 March 2024
Roof Stormwater Plan	CSK3	4	JN Responsive Engineering	20 March 2024
Catchment Plan	CSK4	4	JN Responsive Engineering	20 March 2024
WSUD Design	CSK5	4	JN Responsive Engineering	20 March 2024
Traffic & Parking Plans – Car Park Compliance Review
Concept Layout – Upper Ground	01 / 08	V4	Stanbury Traffic Planning	18 March 2024
Concept Layout – Lower Ground	02 / 08	V4	Stanbury Traffic Planning	18 March 2024
Swept Path Assessment – Upper Ground	03 / 08	V4	Stanbury Traffic Planning	18 March 2024
Swept Path Assessment – Upper Ground	04 / 08	V4	Stanbury Traffic Planning	18 March 2024
Swept Path Assessment – Lower Ground	05 / 08	V4	Stanbury Traffic Planning	18 March 2024
Swept Path Assessment – Lower Ground	06 / 08	V4	Stanbury Traffic Planning	18 March 2024
Vertical Clearance Assessment – Main Access Ramp	07 / 08	V4	Stanbury Traffic Planning	18 March 2024
Vertical Clearance Assessment – Main Access Ramp	08 / 08	V4	Stanbury Traffic Planning	18 March 2024
Landscape Plans
Context Plan	DA_01	B	Greenscape	13 March 2024
Lower Ground Floor Plan	DA_02	B	Greenscape	13 March 2024
Ground Floor Plan	DA_03	B	Greenscape	13 March 2024
Front Landscape Plan	DA_04	B	Greenscape	13 March 2024
Lower Ground Planting Plan	DA_05	B	Greenscape	13 March 2024
Ground Floor Planting Plan	DA_06	B	Greenscape	13 March 2024
Front Planting Plan	DA_07	B	Greenscape	13 March 2024
Precedental Images	DA_08	B	Greenscape	13 March 2024
Planting Schedule	DA_09	B	Greenscape	13 March 2024

Description	Rev	Prepared by	Date
Plan of Management	E	Pivotal Planning	April 2024
Statement of Environmental Effects	B	Pivotal Planning	April 2024
Environmental Noise Impact Assessment	A	Day Design Pty Ltd	22 March 2022
Traffic Report	A	Stanbury Traffic Planning	November 2022
Waste Management Plan	A	Dickens Solutions Pty Ltd	18 October 2022

29. The Court orders:

1. The appeal is upheld.

2. Development Application DA-1179/2022 as amended for the demolition of existing buildings, tree removal, and the construction of a child care centre with basement parking, drainage and landscaping at 62-64 Flowerdale Road, Liverpool 2170, on land legally described as Lot 7 DP 22473 and Lot B DP 414472, is approved subject to the conditions included in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 02 July 2024