Greenlands HP Pty Ltd v Liverpool City Council

[2023] NSWLEC 1377

Land and Environment Court

New South Wales

Medium Neutral Citation:

Greenlands HP Pty Ltd v Liverpool City Council [2023] NSWLEC 1377

Hearing dates:

Conciliation conference on 12 April 2023

Date of orders:

18 July 2023

Decision date:

18 July 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. 707/2022 for the staged subdivision of the existing allotment into a Torrens Title Subdivision of 124 Residential Lots, two drainage lots and a public reserve and construction of roads and associated civil works at 1895 Camden Valley Way, Horningsea Park, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — Torrens title subdivision – s34AA conciliation – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, cl 55

Land and Environment Court Act 1979, ss 34, 34AA

Liverpool Local Environmental Plan 2008, cll 4.1, 5.21, 6.2, 7.6

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

Category:

Principal judgment

Parties:

Greenlands HP Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
I Lacy (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Auslex Law Group (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/241913

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Liverpool City Council (Council) of Development Application number DA 707/2022 (DA) for Torrens title Subdivision of land into 124 Residential Lots, two drainage lots, a public road reserve and Construction of Roads and associated Civil Works at 1895 Camden Valley Way, Horningsea Park (the Site).

2. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act1979 (LEC Act), at which I presided, on 12 April 2023, which commenced in Court.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties 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 (as amended) subject to conditions.

4. The signed agreement was filed on 12 April 2023 and is supported by a Joint Jurisdictional Note provided by the parties on the same date.

5. The parties asked me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development (as amended) that was prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

6. 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 one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. From this, I note the following:

1. Landowner’s consent has been provided in the Class 1 Application.

2. The development application was publicly notified as was required. In summary, the objections that were received related to the road layout and the proposal for the removal of an existing opening to Camden Valley Way in favour of joining to an existing local road network that adjoins the subject land. The parties submit and I accept that retaining Camden Valley Way access is not practical or even permitted and that the existing road network adjoining the subject land is and always was intended to be joined by the subject application. The parties also agree that the revised plans do not require re-notification.

3. The Site is zoned R2 – Low Density Housing with smaller parts of the Site zoned SP2 Infrastructure (Drainage) and RE1 Public Recreation under the Liverpool Local Environmental Plan 2008 (LLEP). The parties agree and I accept that proposed development, a Torrens Title Subdivision, is permissible within the R2 zone under that instrument. The creation of drainage lots and the dedication of land as a public reserve is also permissible under the SP2 and RE1 zones under that instrument.

4. The parties submit and I accept, based on this and the information in the Statement of Environmental Effects (SEE), that the proposed development is consistent with the objectives of this zone by providing for future residential development (in the R2 Zone), drainage works (in the SP2 Zone) and a public reserve (in the RE1 Zone).

5. Clause 4.1 – Minimum Subdivision Lot Size of LLEP has a minimum lot size of 300m on the ‘Lot Size Map’ (lSZ_008). The parties submit and I accept that the minimum lot size provision of LLEP is complied with.

6. Clause 5.21 – Flood Planning of LLEP requires that:

…

(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—

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

(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, and

(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, and

(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.

(3)  In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters—

(a)  the impact of the development on projected changes to flood behaviour as a result of climate change,

(b)  the intended design and scale of buildings resulting from the development,

(c)  whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d)  the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

…

7. The parties agree that clause 5.21 is satisfied as the Site has the benefit of development consent DA-347/2020 (early works DA) which involves flood mitigation and riverbank protection works. These works were approved and condition 2 of this consent incorporates and requires compliance with the early works DA. I am therefore satisfied from the evidence that the early works DA mitigates the flood potential and makes the land suitable for Torrens Title subdivision and future residential use.

8. The parties submit that cl 6.2 – Earthworks of LLEP has been considered and approved by the early works DA. I am therefore satisfied from the evidence that the requirements of cl 6.2 have been satisfied by the earlier DA approval.

9. Clause 7.6 – Environmentally Sensitive Land of LLEP has been considered and assessed in the SEE and the parties agree with this assessment. I am therefore satisfied from the evidence that the requirements of cl 7.6 are met.

10. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, are acceptable and that the site is suitable for the development as proposed.

11. Having regard to the Applicant’s explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council.

12. Accordingly, I am satisfied that the proposal is in the public interest.

13. In relation to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, the Respondent has considered whether the site is contaminated. The parties submit that historical use of the site for open air market garden purposes ensures that contamination is unlikely I am satisfied that the parties have given consideration to whether the site is contaminated and concluded no further assessment is required. I accept this conclusion.

8. For these reasons 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.

9. 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.

10. The Court notes that:

1. Liverpool City Council, as the relevant consent authority, has agreed pursuant clause 55 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. 707/2022 to incorporate the revised plans listed in Annexure A.

2. The Amended Development Application was filed with the Court on 12 April 2023.

11. The Court Orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. 707/2022 for the staged subdivision of the existing allotment into a Torrens Title Subdivision of 124 Residential Lots, two drainage lots and a public reserve and construction of roads and associated civil works at 1895 Camden Valley Way Horningsea Park, subject to the conditions in Annexure A.

L Sheridan

Acting Commissioner of the Court

241913.22 Annexure A

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Decision last updated: 18 July 2023