DKB Group Pty Ltd v Liverpool City Council

[2022] NSWLEC 1175

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

DKB Group Pty Ltd v Liverpool City Council [2022] NSWLEC 1175

Hearing dates:

Conciliation conference on 28 February 2022

Date of orders:

4 April 2022

Decision date:

04 April 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders:

(1) The Appeal is upheld.

(2) Development Consent is granted to Development Application No. DA-419/2020 (as amended) for the Torrens Title subdivision of two lots into three (3) lots, the construction of two (2) dwellings and the alteration of the existing dwelling at 122-124 Graham Avenue, Lurnea, subject to the conditions set out in Annexure “A” to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – Torrens Title subdivision - dwelling houses - amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment, cl 7
Land and Environment Court Act 1979, s 34
Liverpool Local Environmental Plan 2008, cll 2.3, 4.1, 4.3, 4.4
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy 55—Remediation of Land, cl 7
State Environmental Planning Policy (Infrastructure) 2007, cl 102

Category:

Principal judgment

Parties:

DKB Group Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor)(Applicant)
R O’Gorman Hughes (Barrister)(Respondent)

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

File Number(s):

2021/311773

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by DKB Group Pty Ltd (the Applicant) against the Liverpool Council’s (the Respondent’s) refusal of Development Application No. 419/2020 on 2 July 2021.

2. The development application seeks development consent for the Torrens Title subdivision of two (2) lots into three (3) lots. The application includes the construction of two (2) new dwellings and alterations to an existing dwelling. The development is to be undertaken on lots 5 and 6 in DP 4849, known as 122-124 Graham Avenue, Lurnea.

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 28 February 2022.

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 agreement was reached because of minor changes made to the scheme by the applicant and through the provision of additional information. As a result, the parties’ agreement was to seek 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 R2 Low Density Residential. Subdivision and dwelling houses are permissible with development consent in the zone. pursuant to cl 2.3 of LLEP 2008. In determining the development application, I have had regard to the objectives of the zone.

2. The development application complies with the relevant development standards being the minimum lot size (cl 4.1), the maximum building height (cl 4.3) and the allowable floor space ratio (cl 4.4) of the LLEP 2008.

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

4. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), applies to the land and cl 7 requires consideration of any contamination and associated remediation. The parties agree the site has a long history of residential usage and the site is unlikely to be contaminated. Accordingly, I am satisfied no further assessment is required.

5. The parties have considered the matters set out in Pt 2 of the Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment. I am satisfied that the terms of the development consent are consistent with the relevant planning principles pursuant to cl 7(b).

6. State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) requires consideration as the site is adjacent to a road corridor for a Tollway to which cl 102 of the Infrastructure SEPP applies. The application includes a report of Blackett Acoustics dated 22 February 2022, which considers the guidelines used by the Secretary. The report makes recommendations to ensure noise limits set out in cl 102 are not exceeded. I am satisfied that the proposed conditions of development consent ensure that these requirements will be met.

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 Consent is granted to Development Application No. DA-419/2020 (as amended) for the Torrens Title subdivision of two lots into three (3) lots, the construction of two (2) dwellings and the alteration of the existing dwelling at 122-124 Graham Avenue, Lurnea, subject to the conditions set out in Annexure “A” to this agreement.

……………………….

Stuart Harding

Acting Commissioner of the Court

(Annexure A) (336795, pdf)

**********

Amendments

19 April 2022 - Pursuant to UCPR r 36.17 and with the consent of all parties, amend Annexure A to the judgment of 4 April 2022 by:

1. Removing the words ‘Attachment 1 – Draft Without prejudice Conditions of Consent’ from page 2.

Decision last updated: 19 April 2022