Haidar v Liverpool City Council

[2020] NSWLEC 1200

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Haidar v Liverpool City Council [2020] NSWLEC 1200
Hearing dates:	Conciliation conference on 14 April 2020
Date of orders:	05 May 2020
Decision date:	05 May 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1) The Applicant is granted leave for the amended plans and documents listed at Condition 1. (2) The appeal is upheld. (3) The development application DA1031/2016 for the construction for multi-dwelling housing development and related works is approved subject to the conditions set out in Annexure A of this agreement. The applicant agrees with the respondent that the applicant is bound by those conditions and complies with them.
Catchwords:	DEVELOPMENT APPLICATION – Affordable housing – amended plans – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Liverpool Local Environmental Plan 2008 State Environmental Planning Policy 55—Remediation of Land State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Texts Cited:	Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development (March, 2004)
Category:	Principal judgment
Parties:	Jihad Haidar (First Applicant) Samer Ghanem (Second Applicant) Liverpool City Council (Respondent)
Representation:	Counsel: J Antonopoulos (Solicitor) (Applicant) L Steer (Solicitor) (Respondent)   Solicitors: One Group Legal Pty Ltd (Applicant) Liverpool City Council (Respondent)
File Number(s):	2019/180990
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) by the Applicant against the refusal of its development application DA/1031/2016 by Liverpool City Council. The development application seeks consent for the construction of five two-storey multi-dwelling housing development with basement car parking and associated landscaping and site works in accordance with State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The development is proposed at 13 Holland Crescent, Casula.

2. In accordance with the Court’s usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was held on 20 January 2020. By consent of the parties a further conciliation conference was held on 14 April 2020. Through the conciliation process, the parties have agreed amendments to the proposed development. The agreed orders provide leave to the Applicant to rely on this amended material in their development application.

3. Following the conciliation, 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 them. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent.

4. 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). I have formed this state of satisfaction for the following reasons:

1. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential and/or retail purposes. With regard to the consideration required at clause 7 of State Environmental Planning Policy 55— Remediation of Land, I accept that the likelihood of contamination is low.

2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by a BASIX certificate in compliance with the instrument.

3. Pursuant with the provisions of the Liverpool Local Environmental Plan 2008 (LEP 2008) the site is zoned R3 Medium Density Development. The proposed development, multi-dwelling housing, is permissible with consent.

4. The application is made pursuant to the provisions of SEPP ARH as in-fill affordable housing. The division applies to the site as the development sought is permissible under LEP 2008 and does not contain a heritage item (cl 10(1)(a) and (b) of SEPP ARH).

5. The parties accept that the subject site meets the definition of ‘accessible area’ on the basis of the site being within 400m of a bus stop with regular services as required by cl 4(1)(a) of SEPP ARH.

6. The consent conditions, at Condition 84, require that a minimum of 1 dwelling is to be provided as affordable housing for a minimum of 10 years in accordance with SEPP ARH.

7. I am satisfied that the application complies with the standards listed at cl 14 of SEPP ARH.

8. As required by cl 15(1) of SEPP ARH, I have taken into consideration the provisions of the Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development (March, 2004), to the extent that those provisions are consistent with SEPP ARH.

9. I have also taken into consideration whether or not the design is compatible with the local area as required by cl 16A of the SEPP ARH. I accept the agreed position of the parties that the proposed development, as amended, will be compatible with the character of the local area.

10. The development application was notified in accordance with cl 4.18 of the EPA Act, and Council’s notification policy.

5. 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.

6. 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. 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 EPA Act.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The Applicant is granted leave for the amended plans and documents listed at Condition 1.

2. The appeal is upheld.

3. The development application DA1031/2016 for the construction for multi-dwelling housing development and related works is approved subject to the conditions set out in Annexure A of this agreement. The applicant agrees with the respondent that the applicant is bound by those conditions and complies with them.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (140 KB)

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Amendments

05 May 2020 - Correction to typo in the Coversheet - No substantive change to the Judgment

Decision last updated: 05 May 2020