Gayed v Liverpool City Council

[2025] NSWLEC 1157

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gayed v Liverpool City Council [2025] NSWLEC 1157

Hearing dates:

Conciliation conference held on 25 February 2025

Date of orders:

18 March 2025

Decision date:

18 March 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is upheld

(3) Development Application DA-797/2020 for an ‘animal boarding or training establishments’, the use of modified shipping containers to construct a staff room, storage rooms, sixteen (16) freestanding dog kennel modules, new driveways, foot traffic path ways, provision of new onsite car parking area with 35 car spaces, flood management works, new on-site sewer management system and drainage, earthworks, tree removal and a series of associated retaining and acoustic walls at 25 May Avenue, Rossmore, also known as Lot 24 in DP 2217, is determined by the granting of consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – animal boarding facility – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity and Conservation Act 2016

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Interpretation Act 1987 s 30A

Land and Environment Court Act 1979, s 34

Water Management Act 2000 s 91

Liverpool Local Environmental Plan 2008, cll 4.3, 4.4, 5.10, 5.21, 7.7

State Environmental Planning Policy Amendment (Water Catchments) 2022

State Environmental Planning Policy (Biodiversity and Conservation) 2021(repealed), Chs 7, 8, 9, ss 9.4, 9.5; 10, 11, 12

State Environmental Planning Policy No. 55 – Remediation of land

State Environmental Planning Policy (Resilience and Hazards) 2021, s 1.4, 4.6

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2— 1997) (repealed)

Category:

Principal judgment

Parties:

Andrew Gayed (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Hanna (Solicitor)(Applicant)
J Garcia (Solicitor)(Respondent)

Solicitors:
Merc Capital (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2023/448629

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA-797/2020 seeking consent for the change of use from residential dwelling to ‘animal boarding or training establishments’, the use of modified shipping containers to construct a staff room, storage rooms, sixteen (16) freestanding dog kennel modules, new driveways, foot traffic path ways, provision of new onsite car parking area with 35 car spaces, new on-site sewer management system and drainage, earthworks, and a series of associated retaining and acoustic walls (Proposed Development) at 25 May Avenue, Rossmore legally described as Lot 24 in DP 2217 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 25 February 2025, being the same day that the proceedings were listed to commence for hearing. I presided over the conciliation conference and at the conclusion the hearing was vacated.

3. The parties agree that all Contentions raised in the Statement of Facts and Contentions filed by the Respondent on 23 January 2024 (SOFAC) have been resolved by the preparation of the amended plans and documents referred to at [45] and agreed conditions of consent at Annexure A.

4. At the conciliation conference, the parties 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 development application subject to conditions.

5. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the relevant provisions of the Liverpool Local Environmental Plan 2008 (LLEP), State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), and the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The parties explained how the jurisdictional prerequisites have been satisfied.

8. The Applicant is the owner of the Site, and, as the landowner, provided consent to the Development Application when it was lodged. The Development Application was lodged on 24 September 2020 and a Notice of Determination dated 20 June 2023 was issued by the Respondent refusing consent. The Class 1 Appeal was filed on 11 December 2023.

9. The Site is zoned RU4 – Primary Production Small Lots pursuant to the LLEP where the Proposed Development is permissible with consent, namely an ‘animal boarding and training establishment’ which is defined in the LLEP as follows:

animal boarding or training establishment means a building or place used for the breeding, boarding, training, keeping or caring of animals for commercial purposes (other than for the agistment of horses), and includes any associated riding school or ancillary veterinary hospital.

10. The Development Application was notified in accordance with the Respondents Community Engagement Strategy 2019 between 23 October 2020 to 6 November 2020. Three (3) submissions were received during the notification period. The Respondent had previously filed a List of Objectors on 28 August 2024 and no objectors had registered to make oral submissions for the hearing listed 25 February 2025. The Respondent confirms that all objectors that made a submission in the proceedings have been notified that the parties intend to resolve the matter by way of an agreement pursuant to s 34 of the LEC Act and that the matter will no longer be proceeding to a contested hearing. The issues originally raised by objectors relate to odour and noise management as well as flood planning and impacts on South Creek. The parties agree that all concerns raised by objectors have been considered and appropriately addressed.

11. The Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2— 1997) (SREP HNR) was applicable to the Development Application at the time of lodgement. However, the Biodiversity and Conservation SEPP commenced on 1 March 2022, and it served to both repeal SREP HNR, and transfer relevant provisions to Chapter 9 of the Biodiversity and Conservation SEPP. Notwithstanding that Chapters 7 – 12 of the Biodiversity and Conservation SEPP were then repealed on 21 November 2022 by State Environmental Planning Policy Amendment (Water Catchments) 2022, the savings and transitional provisions in Part 6.6 of the Biodiversity and Conservation SEPP state that the former repealed provisions of the Biodiversity and Conservation SEPP continue to apply to a development application made, but not finally determined, before 21 November 2022.

12. The Respondent has taken into consideration the relevant provisions in Chapter 9 of the Biodiversity and Conservation SEPP including the general planning considerations in s 9.4 and the specific planning policies and related recommended strategies s 9.5 of Biodiversity and Conservation SEPP which are applicable to the Proposed Development and the parties agree that having regard to such considerations that the development should be approved.

13. The Applicant relies on the letter from Brodie Miller of Narla Environmental Pty Ltd dated 5 February 2025 which concludes as follows:

“The Subject Site areas of River-Flat Eucalyptus Forest (RFEF), an Endangered Ecological Community (EEC) under the Biodiversity Conservation Act 2016 (BC Act), as well as extensive exotic vegetation. While the development will impact 0.11 ha of RFEF and 1.04 ha of exotic vegetation, these impacts have been largely mitigated through careful site planning and will be further reduced by implementing recommended mitigation measures.

No native vegetation within areas identified on the NSW Biodiversity Values Map will be directly or indirectly impacted by the development. Additionally, the development does not trigger the Biodiversity Offset Scheme, as the total clearing of native vegetation remains well below the applicable threshold.”

14. The works fall beyond 40m from the South Creek watercourse, and therefore no control activity approval is required: s 91, Water Management Act 2000.

15. The State Environmental Planning Policy No. 55 – Remediation of land (SEPP 55) was applicable to the Development Application at the time of lodgement. However, the Resilience and Hazards SEPP which commenced on 1 March 2022 served to both repeal SEPP 55, and transfer relevant provisions to Chapter 4 of the Resilience and Hazards SEPP. Section 1.4 of the Resilience and Hazards SEPP provides that s 30A of the Interpretation Act 1987 applies to all transferred provisions, meaning that the transferred provisions from SEPP 55 are to be construed as if they had not been so transferred.

16. Under s 4.6 of the Resilience and Hazards SEPP, Council must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated. If the land is found to be contaminated, Council must not consent to the development unless it is satisfied that the land is suitable in its contaminated state, or will be suitable after remediation, for the purpose that development consent is sought.

17. The Applicant relies on a combined Stage 1 Preliminary and Stage 2 Detailed Site Investigation prepared by Aargas Pty Ltd dated 20 September 2024 (DSI). The DSI concludes as follows:

“Based on the results of this investigation it is considered that the risks to human health and the environment associated with soil contamination at the site are low wichin the context of the proposed of the site for a new animal boarding facility with on-site sewage treatment plant, storage sheds and associated car parking.

With reference to Clause 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, the site will be considered to be rendered suitable subject to the completion of a Remedial Action Plan to address the aforementioned data gaps (and after remediation and validation), for the proposed development.”

18. The Remediation Action Plan (RAP) prepared by Aargus Pty Ltd dated 2 May 2022 and filed with the Class 1, concludes at p 76 that “the site will be rendered suitable for the redevelopment of the south eastern portion of the site for the construction of a new animal boarding facility with on-site wastewater treatment plan, storage sheds and a car park subject to the implementation of remediation and validation works in accordance with this RAP”. The parties have agreed to Conditions 88 and 127 which ensure that the recommendations of the RAP are implemented.

19. For these reasons, the Court is satisfied that the Site will be remediated to be made suitable for the Proposed Development in accordance with s 4.6 of the Resilience and Hazards SEPP.

20. Clause 7.7 of LLEP which deal with Acid Sulfate soils, does not apply to the Site as outlined in the DSI. Reference was made to the NSW Department of Land & Water Conservation (DLWC) Acid Sulphate Soil Risk Maps (Edition Two, December 1997, Scale 1:250,000), specifically Map No. 92 – “Liverpool”. A review of the map indicated that there is “no known” occurrence of acid sulphate soil materials at the site, and the presence of acid sulphate soils was considered to be unlikely. A review of the NSW planning portal reveals no information regarding Acid Sulfate Soil presence.

21. The Site is not subject to maximum floor space ratio or maximum building height development standards under the provisions of cll 4.3 and cl 4.4 of LLEP.

22. Clause 5.10 of LLEP regarding Heritage Conservation, does not apply to the Site as it is not identified as a heritage item or located within a heritage conservation area, nor is the Site located within the vicinity of a heritage item or a heritage conservation area.

23. The Site is covered by the Respondent’s Bushfire Prone Land Map and is therefore considered to be bushfire prone. The Applicant relies on the Bushfire Assessment Report prepared by Bushfire Planning and Design dated 8 May 2020 and filed with the Class 1 Application. The Bushfire Assessment Report considers the National Construction Code (NCC) building classification for the buildings proposed and concludes that the Proposed Development does not include any class 1, 2, 3 or 4 structures as defined in the NCC, the Proposed Development falls outside the requirements for specific bushfire safety construction standards as outlined in the NCC, AS-3969 and Planning for Bushfire Protection 2019 and requires only the general fire safety provisions of the NCC that are associated with the relevant class of structures.

24. Finally, the site is identified as flood prone land, with the majority of the site identified as high hazard flood risk. Clause 5.21 of the LLEP relates to flood planning and provides that development consent must not be granted unless the consent authority is satisfied that the development is:

(a) compatible with the flood function and behaviour on the land,

(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties,

(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood,

(d) incorporates appropriate measures to manage risk to life in the event of a flood, and

(e)  will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

25. The survey plan submitted with the Development Application shows that the Site is located on the western side of May Avenue, with a rear (eastern) boundary that adjoins, and follow the alignment of, South Creek. The western portion of the Site consists relatively dense vegetation, with a riparian corridor bounding the eastern bank of South Creek. Development on the Site is predominantly located within the eastern parts of the Site. I reproduce below from the SOFAC, an aerial photograph depicting the Site.

26. The DA as amended includes the installation of an On-Site Sewage Management System (OSMS) for the entire site. The proposed design change necessitated additional flood compensatory excavation, which has been incorporated into the design and to mitigate the adverse impact of flooding condition 20 has been agreed.

27. For the reasons comprehensively set out in the Addendum to flood report dated 2 September 2024, dated 25 February 2025 prepared by Rafik Ghobrial of AKKO Engineering and Building Certifiers Pty Ltd, I am satisfied of the matters listed in cl 5.21 of the LLEP.

28. 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. I adopt the reasons given by the parties as set out in this judgment.

29. 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.

Notations:

31. The Court notes:

1. The Respondent, Liverpool City Council, as the relevant consent authority, has agreed under section 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA No 797/2020 in accordance with the following amended plans and reports (Amended Development Application)

Plans

Document Title	Ref.	Date	Prepared by
Demolition Plan	AKKO - ARC - AN1 (Rev 3C)	10.10.2024	AKKO
Proposed Site Plan	AKKO - ARC - AN2/A (Rev 3C)	10.10.2024	AKKO
Engineering Plan OSMS (on site sewerage system) for Animal Re-Use water supply system	AKKO – ARC – AN2/B (Rev 3C)	10.10.2024	AKKO
Kennel Model B1 Floor Plan, Elevations Section	AKKO - ARC - AN3 (Rev 3C)	10.10.2024	AKKO
Kennel Model A2 Floor Plan, Elevations Section	AKKO - ARC - AN4 (Rev 3C)	10.10.2024	AKKO
Storage Units Floor Plan, Elevation Section	AKKO - ARC - AN5 (Rev 3C)	10.10.2024	AKKO
Office and Accommodation Building, Sheet 1 Ground Floor Plan, 1st Floor Plan, Roof Plan, East & West Elevations	AKKO - ARC - AN6 (Rev 3C)	10.10.2024	AKKO
Office and Accommodation Building, Sheet 2, North & South Elevations	AKKO - ARC - AN7 (Rev 3C)	10.10.2024	AKKO
Garbage Room Details – Floor Plan, East, South & West Elevations	AKKO - ARC - AN8 (Rev 3C)	10.10.2024	AKKO
Garbage Room Details – North Elevation + Section A-A	AKKO - ARC - AN9 (Rev 3C)	10.10.2024	AKKO
Site Street Elevation, Site South Elevation, and North South Elevation	AKKO - ARC - AN10 (Rev 3C)	10.10.2024	AKKO
(Only) Stormwater Concept Plan	AKKO - ENG - AN12 (Rev 4)	06.12.2024	AKKO
Enlarge for text and diagrams Stormwater drainage system	AKKO - ENG - AN13 (Rev 4)	06.12.2024	AKKO
Proposed OSMS -Sand Mound Details	AKKO – ENG - AN14 (Rev 4)	10.10.2024	AKKO
Proposed OSMS -AWTS1 – Details For Humans	AKKO - ENG - AN15 (Rev 3C)	10.10.2024	AKKO
Proposed OSMS -AWTS2 Details For Animal	AKKO - ENG - AN15A (Rev 3C)	10.10.2024	AKKO
Engineering Plan OSMS (On Site Sewerage System) Only	AKKO - ENG - AN16 (Rev 4)	06.12.2024	AKKO
Engineering Plan OSMS (On Site Sewerage System) for Animal	AKKO – ENG - AN16A (Rev 4)	06.12.2024	AKKO
Acoustic Barrier (Noise Barrier Fence) Enlarged Text and Diagrams	AKKO - ENG - AN17A (Rev 4)	06.12.2024	AKKO
Flood Storage and Calculations	AKKO – ENG - AN18 (Rev 5)	17.01.2025	AKKO
Flood Storage Location	AKKO - ENG - AN19 (Rev 5)	17.01.2025	AKKO
Flood Storage Sections	AKKO - ENG - AN20 (Rev 5)	17.01.2025	AKKO
Landscape Site Plan	Job Ref: 2628/24, Issue C, Sheet 1 of 4	10.09.2024	Paul Scrivener Design
Detail Plan East	Job Ref: 2628/24, Issue C, Sheet 2 of 4	10.09.2024	Paul Scrivener Design
Detail Plan West	Job Ref: 2628/24, Issue C, Sheet 3 of 4	10.09.2024	Paul Scrivener Design
Notes & Details	Job Ref: 2628/24, Issue B, Sheet 4 of 4	10.09.2024	Paul Scrivener Design

32. Reports and Documents

Document Title	Ref.	Date	Prepared by
Arboricultural Impact Assessment	V1.0	03.02.2025	Tree Space Consulting
Ecological Assessment	n.r.	05.02.2025	Narla Environmental
Waste Water Report: On-Site Sewage Management System (OSMS)	Rev.4	06.12.2024	AKKO
Flood Report: Floodplain Cut and Fill Report on 1% AEP Flood Event	n.r.	02.09.2024	AKKO
Acoustical Report	Project number: 4692	18.07.2024	Koikas Acoustics
Noise Management Plan	n.r.	30.08.2024	Koikas Acoustics
Combined Preliminary & Detailed Site Investigation	Rev 0	20.09.2024	Aargus Pty Ltd
Addendum to flood Report dated 02 September 2024	n.r	25.02.2025	AKKO

1. The Applicant has filed the amended development application listed above with the Court on 24 February 2025 except for the Addendum to flood report dated 25 February 2025 which was provided to the Court on 25 February 2025.

Orders:

33. The Court orders:

1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld

3. Development Application DA-797/2020 for an ‘animal boarding or training establishments’, the use of modified shipping containers to construct a staff room, storage rooms, sixteen (16) freestanding dog kennel modules, new driveways, foot traffic path ways, provision of new onsite car parking area with 35 car spaces, flood management works, new on-site sewer management system and drainage, earthworks, tree removal and a series of associated retaining and acoustic walls at 25 May Avenue, Rossmore, also known as Lot 24 in DP 2217, is determined by the granting of consent, subject to the conditions set out in Annexure A.

E Espinosa

Commissioner of the Court

**********

Annexure A

Decision last updated: 18 March 2025