Ghazi Al Ali Architects Pty Ltd v Liverpool City Council
[2021] NSWLEC 1167
•08 April 2021
Land and Environment Court
New South Wales
Medium Neutral Citation: Ghazi Al Ali Architects Pty Ltd v Liverpool City Council [2021] NSWLEC 1167 Hearing dates: 9 February, 25 February, 11 March and 15 March 2021 Date of orders: 8 April 2021 Decision date: 08 April 2021 Jurisdiction: Class 1 Before: Clay AC Decision: The Court makes the following orders:
(1) The Applicant is granted leave to amend the development application to:
(a) exclude from the land to which Development application 279/2020 relates the land in Lot 4 DP1228502 known as No. 30 Croatia Avenue, Edmondson Park and
(b) rely upon the plans referred to at operational condition A1, contained within Annexure A.
(2) The Appeal is upheld;
(3) Development application 279/2020 seeking two lot subdivision and multi-dwelling housing comprising the staged construction of 30 townhouses and associated visitor car-parking, subdivision, civil works including the construction of two roads (including on an adjoining allotment to the south) for premises known as 50 Croatia Avenue, Edmondson Park is approved subject to the conditions in Annexure A.
Catchwords: DEVELOPMENT APPLICATION – Subdivision and multi-unit housing – conciliation – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7
Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment
Land and Environment Court Act 1979 ss 30, 34
Liverpool Local Environmental Plan 2008
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy No 55 – Remediation of Land
Category: Principal judgment Parties: Ghazi Al Ali Architects Pty Ltd (Applicant)
Liverpool City Council (Respondent)Representation: Counsel:
Solicitors:
H Irish (Applicant)
R O’Gorman- Hughes (Respondent)
Conomos Legal (Applicant)
Liverpool City Council (Respondent)
File Number(s): 2020/140054 Publication restriction: Nil
Judgment
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COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal by the Council of development application DA-279/2020 (the DA) for a two lot subdivision and multi-dwelling housing comprising the staged construction of 34 townhouses and an access road and demolition of existing sheds at Lot 6 Deposited Plan 1228502 known as 50 Croatia Avenue, and Part Lot 12 DP 228850, known as part of 60 Croatia Avenue, Edmondson Park (Site).
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The parties undertook conciliation pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act) in July 2020 but the matter was not resolved and the conciliation was terminated.
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On 2 October 2020 the Registrar fixed the matter for hearing on 9 and 10 February 2021. The Chief Judge delegated the hearing to me pursuant to s 30 of the Court Act. At the commencement of the hearing I was informed by counsel for the parties that, following the preparation of joint reports by the various experts, the parties had reached agreement in principle as to the determination of the appeal and sought to adjourn the hearing and move the Court for an order for further conciliation pursuant to s 34 of the Court Act.
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The Registrar ordered that there be further conciliation and the Chief Judge delegated that power to me. Accordingly, on 9 February 2021, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Court Act. At the conciliation conference, the parties confirmed that they had reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties.
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The proposed decision was to grant leave to amend the development application, rely upon amended plans and to grant development consent. There were however two barriers to the swift finalisation of the matter. Shortly prior to 9 February the Council became aware that:
It had not notified the development application in accordance with its notification policy; and
There had been a recent change to the bushfire mapping by the Rural Fires Service (RFS) and that as a consequence the DA had to be forwarded to the RFS for comment.
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Each of those steps was a matter going to the jurisdiction of the Court to grant consent and therefore the conciliation was then adjourned to enable public notification and referral to the RFS as well as the preparation of documents giving effect to the agreement reached.
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The conciliation continued on 25 February, 11 March and 15 March 2021 until finally on 18 March 2021 the parties lodged an agreement pursuant to s 34 of the Court Act in a satisfactory form giving effect to the agreement in principle.
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The Council’s contentions were resolved having regard to the evidence from the parties’ experts: N Juradowitch, retained by the Applicant and I Kokotovic, retained by the Council, and the amendments to the development application which are referred to in the orders to be made.
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Pursuant to s 34(3) of the Court 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.
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The parties’ agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant development consent. The parties provided an Agreed Statement of Jurisdictional Preconditions to the Grant of Development Consent in the following terms (with some paraphrasing):
Liverpool LEP 2008
The subject land is zoned R1 General Residential pursuant to Liverpool LEP 2008. Multi dwelling housing is permissible within Zone R1 with development consent (cl 2.3(1)(c)). The Court must have regard to the objectives for development in that zone when determining the development application (cl 2.3(2)).
The Statement of Environmental Effects (SEE) prepared by Ingham Planning Pty Ltd dated March 2020, accompanying the development application / Class 1 Application deals with the zone objectives
There is no breach of any of the development standards in Part 4 of Liverpool LEP 2008: the proposal complies with the minimum subdivision lot size of 450m2 prescribed by cl 4.1; the proposal complies with the maximum building height of 8.5m prescribed by cl 4.3; and the proposal complies with the maximum floor space ratio of 0.65:1 prescribed by cl 4.4 of the LEP (with a floor space ratio of 0.4:1). (See page 20 of the SEE prepared by Ingham Planning Pty Ltd dated March 2020).
Part 7 contains additional local provisions. Clause 7.6 does not apply as the site is not environmentally significant land. The subject land is not on land shown on the Acid Sulfate Soils Map for the purposes of cl 7.7 of Liverpool LEP 2008: see page 18 of the SEE prepared by Ingham Planning Pty Ltd dated March 2020. A Salinity Assessment Report prepared by Geotechnics dated 6 April 2020 is at page 483 ff. of the Respondent’s Bundle of Documents Volume 1.
Clause 7.8 of Liverpool LEP 2008 applies to land at or below the flood planning level. The lower lying north west corner of the site is below the flood planning level and identified as being flood prone land and subject to flood planning as shown in Figure 11 on page 22 of the SEE prepared by Ingham Planning Pty Ltd dated March 2020. However, the part of the site proposed for the development of townhouses is above the flood planning level. The parties agree that each of the requirements in subcl. (3) are satisfied. A flood assessment/flood risk management plan dated 18 March 2020 was prepared to support the development application and filed with the Class 1 Application.
The proposal achieves the minimum dwelling density required by cl 7.11 (and is well over the required 14 dwellings per hectare).
Clause 7.12 of Liverpool LEP 2008 does not apply as the land is not in an area identified as “Restricted Lot Yield”.
Clause 7.31 of Liverpool LEP 2008 relates to Earthworks. The parties agree that the proposal would not result in any unreasonable impacts relating to the matters referred to in sub-cl (3) (see p 23 of the SEE prepared by Ingham Planning Pty Ltd dated March 2020.
State Environmental Planning Policy No 55 – Remediation of Land
Clause 7 of SEPP 55 applies to the site.
The land concerned is land on which it is proposed to carry out development for residential purposes. Historical land use has comprised residential since the 1970s and has also included market gardens from circa 1982 to 2000.
A Preliminary Site Investigation of 50 Croatia Avenue, Edmondson Park was carried out by Trace Environmental dated 17 March 2020. That report accompanied the development application / Class 1 Application and is at page 62 ff. of the Respondent’s Bundle of Documents Volume 1.
A Detailed Site Investigation in relation to the proposed development at 50 Croatia Avenue, Edmondson Park was prepared by GCA Geotechnical Consultants Australia dated 9th July 2020 and the subject of leave granted by the Land and Environment Court on 26 November 2020. That report is Annexure “J” to the Affidavit of Nick Juradowitch sworn on 13 November 2020.
A review of both the Trace Environmental Preliminary Site Investigation dated 17 March 2020 and the GCA Geotechnical Consultants Australia Detailed Site Investigation dated 9 July 2020 was carried out by Mr Tony Scrivener, a Certified Environmental Professional – Site Contamination Specialist on 9 July 2020. That review is Annexure “K” to the Affidavit of Nick Juradowitch sworn on 13 November 2020.
A further Detailed Site Investigation in relation to the proposed development at 50 & 60 Croatia Avenue, Edmondson Park was prepared by GCA Geotechnical Consultants Australia dated 20th January 2021. A review of that further Detailed Site Investigation was carried out by Mr Tony Scrivener, a Certified Environmental Professional – Site Contamination Specialist on 22 January 2021.
GCA has concluded that the developable area at 50 & 60 Croatia Avenue, Edmondson Park can be made suitable for the proposed development and land use without the need for further investigation or remediation (pages 3 and 38-39) and subject to the recommendations in Section 10 (on page 39). The review carried out by Mr Scrivener, a Certified Environmental Professional – Site Contamination Specialist on 22 January 2021 has likewise concluded that the soil data does not indicate the presence of contamination at the site such as would require remediation to make the site suitable for a residential land use. Mr Scrivener has otherwise found the Detailed Site Investigation dated 20 January 2021 sufficient and acceptable.
The last two documents were considered by the town planners for the purposes of the Joint Planning Experts Report dated 28 January. The documents are included (at Tabs 5 and 6) in the Applicant’s Bundle of Documents.
Condition 1 requires the development to be carried out in accordance with the contamination report of Geotechnical Consultants Australia dated 20 January 2021. The jurisdictional preconditions to the grant of development consent under SEPP 55 have been met.
Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment
An assessment meeting the requirements of cll 3 and 9 (the subject of Contentions 3 and 4 in the proceedings) has now been carried out/resolved, subject to the imposition of conditions relating to a submitted and satisfactory Dam-Dewatering Report for the existing dam on 50 Croatia Avenue, and another Dam-dewatering Report relating to an existing dam on No 60 (which is required to be de-watered to accommodate road infrastructure). The latter is required to be submitted to satisfy a ‘Deferred commencement’ consent condition. (See page 3 of the Joint Planning Experts Report dated 28 January 2021.)
The parties agree that the proposal does not dispose of untreated stormwater in the Georges River or its tributaries contrary to cl 20 (see conditions 15, 17 and 18).
The requirements of this Deemed SEPP have been adequately addressed.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
An up-to-date certificate has been provided: see Tab 3 in the Applicant’s Bundle of Documents.
State Environmental Planning Policy (Infrastructure) 2007
Clause 45 applies to development within an easement for electricity purposes. The development as proposed includes work within the easement on the site. Clause 45 requires the consent authority to give written notice of the DA to the electricity supply authority and to take into consideration any response. Transgrid was not notified, however the Applicant engaged TransGrid for permission to carry out works, acknowledged by letter of Transgrid dated 29/10/2020. By virtue of s39(6) of the Land and Environment Court, the Court has the power to grant development consent notwithstanding the failure of the Council to comply with s45 of the SEPP.
Bushfire
The development is to take place on bushfire prone land. The parties agree that the development will conform to the specifications and requirements of Planning for Bushfire Protection as required by s. 4.14(1) of the EPA Act, and note that the Council has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from bushfire (refer to the letter from the RFS dated 11 March 2021 and condition 2(a) and 2(b) of the proposed consent)).
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Based upon the material provided by the parties and the reasons they identify, I agree that the jurisdictional preconditions to the exercise of power have been met.
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The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 EP&A Act.
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Having been satisfied that the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions, I make the following orders:
The Applicant is granted leave to amend the development application to:
exclude from the land to which Development application 279/2020 relates the land in Lot 4 DP1228502 known as No. 30 Croatia Avenue, Edmondson Park and
rely upon the plans referred to at operational condition A1, contained within Annexure A.
The Appeal is upheld;
Development application 279/2020 seeking two lot subdivision and multi-dwelling housing comprising the staged construction of 30 townhouses and associated visitor car-parking, subdivision, civil works including the construction of two roads (including on an adjoining allotment to the south) for premises known as 50 Croatia Avenue, Edmondson Park is approved subject to the conditions in Annexure A.
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P Clay
Acting Commissioner of the Court
Annexure A (432835, pdf)
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Decision last updated: 08 April 2021
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