GG PV Ballina Pty Ltd v Liverpool City Council

[2023] NSWLEC 1387

Land and Environment Court

New South Wales

Medium Neutral Citation:

GG PV Ballina Pty Ltd v Liverpool City Council [2023] NSWLEC 1387

Hearing dates:

Conciliation conference on 14 and 27 June

Date of orders:

21 July 2023

Decision date:

21 July 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders:

(1) Leave is granted to amend the Development Application DA-940/2018, lodged on 19 December 2018 in accordance with the following amended plans and documentation:

a. Stormwater Drainage Plans prepared by Boro Seizov of Henry and Hymas dated 17 March 2023 (Issue 01); and

b. Stormwater Strategy Letter prepared by Boro Seizov of Henry and Hymas dated 25 May 2023.

(2) The appeal is upheld.

(3) Development Application No. DA 940/2018 seeking development consent for the demolition of existing structures and construction of a multi dwelling housing development comprising of eight dwellings (including two affordable rental housing units) above basement car parking, with associated drainage and landscaping works at 198 Newbridge Road Moorebank, 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 (Affordable Rental Housing) 2009
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 85,86,87

Category:

Principal judgment

Parties:

GG PV Ballina Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Pearman (Applicant)
C Campbell (Solicitor)(Respondent)

Solicitors:
Madison Marcus (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2023/10233

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 GG PV Ballina Pty Ltd (the Applicant) against Liverpool City Council’s (the Respondent) actual refusal of Development Application DA-940/2018 on 15 July 2022.

2. The Development Application seeking development consent for the demolition of existing structures and construction of multi dwelling housing development comprising of eight dwellings (including two affordable rental housing units) above basement car parking, with associated drainage and landscaping works at 198 Newbridge Road, Moorebank.

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). I presided over the conciliation process which commenced on 17 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 Residential. 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 Applicant provided additional material prepared by Henry and Hymas Consulting Engineers around the stormwater solutions for the site. The parties have reviewed these requirements and noted 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 relating to earthworks and excavation.

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

6. The proposed development is made in accordance with the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) as the application was lodged, but not yet determined, prior to the repeal of this instrument. State Environmental Planning Policy (Housing) 2021 provides a savings clause to preserve the assessment of the application under the ARH SEPP. The Statement of Environmental Effects prepared by Chapman Planning Pty Ltd addresses the required matters in SEPP ARH including accessibility and a character assessment. The parties agree, after assessment of these matters, that the proposal meets the requirements of the ARH SEPPP and that the design of the development is compatible with the character of the local area.

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. The parties are satisfied that the desktop assessment prepared by Geo-Logix is sufficient to verify that the site has been used for residential purposes for a significant period and that contamination is unlikely. The parties consider, and I agree, that the Site is suitable for residential land use and that the required assessments have been undertaken.

8. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the Development Application, in particular ss 85,86 and 87. The development was subject to referral to Roads and Maritime Services (RMS). The RMS did not oppose the development and have provided required condition to be included in any development consent. Accordingly, the requirements of the RMS have been included in the proposed conditions of Development Consent contained in Annexure A. The application was also accompanied by a Road Traffic Noise Intrusions Assessment, prepared by Day Design Pty Ltd, which the parties agree was satisfactory. Therefore, the necessary requirements of SEPP TI have been 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. Pursuant to s 34(3) of the Land and Environment Court Act 1979, to give effect to the parties’ agreement, the Court orders that:

1. Leave is granted to amend the Development Application DA-940/2018, lodged on 19 December 2018, in accordance with the following amended plans and documentation:

1. Stormwater Drainage Plans prepared by Boro Seizov of Henry and Hymas dated 17 March 2023 (Issue 01); and

2. Stormwater Strategy Letter prepared by Boro Seizov of Henry and Hymas dated 25 May 2023.

2. The appeal is upheld.

3. Development Application No DA 940/2018 seeking development consent for the demolition of existing structures and construction of multi dwelling housing development comprising of eight dwellings (including two affordable rental housing units) above basement car parking, with associated drainage and landscaping works at 198 Newbridge Road Moorebank, is determined by the granting of development consent, subject to the conditions set out in Annexure A.

Stuart Harding

Acting Commissioner of the Court

Annexure A

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Decision last updated: 21 July 2023