Hi-Quality Quarry (NSW) Pty Ltd v Liverpool City Council

[2023] NSWLEC 1384

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hi-Quality Quarry (NSW) Pty Ltd v Liverpool City Council [2023] NSWLEC 1384

Hearing dates:

Conciliation Conferences on 19 May, 9, 20, 28 and 30 June 2023

Date of orders:

21 July 2023

Decision date:

21 July 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA-549/2022 for the construction of a transport depot at 20 Bernera Road, Prestons (Lot 1007, DP 1273535), including an ancillary workshop, office and laboratory, is approved subject to the conditions in accordance with Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 37

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 2.2, 4.3, 4.4, 5.21, 7.6, 7.7, 7.31

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

Texts Cited:

Liverpool Community Participation Plan 2019

Liverpool Development Control Plan 2008

Category:

Principal judgment

Parties:

Hi-Quality Quarry (NSW) Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
P Holland (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
McCullough Robertson Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2022/384964

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA-549/2022.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 May and adjourned to 9, 20, 28 and 30 June 2023. I presided over the conciliation conferences, which commenced with a site inspection on 19 May 2023. There were no objectors to the proposed development.

3. The plans submitted with the development application (DA) formed the basis of the discussion at the on-site conciliation conference.

4. Further information and revised plans (dated May and June 2023) constituting an amendment to the DA were submitted by the applicant and these revised plans formed the basis of the discussion at the adjourned conciliation conferences.

5. At the adjourned conciliation conferences following the on-site view on 19 May 2023, 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.

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 a decision that the Court could have made in the proper exercise of its functions.

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

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows:

1. In relation to the provisions of the Liverpool Local Environmental Plan 2008 (LLEP):

1. The Site is zoned E5 – Heavy Industry pursuant to the provisions of cl 2.2 of the LLEP. Since the DA was lodged, there has been a change to the zoning of the land from IN3 – Heavy Industrial to E5 – Heavy Industry under the State Government’s implementation of new employment zones. ‘Transport depot’ is now not a nominated permissible use in the E5 zone; and

1. Savings and transitional provisions apply that render the proposed development permissible on the subject site. The Amending Order for the Implementation of Employment Zones provides until 26 April 2025 for the continuation of existing land use permissibility under the previous business and industrial zones);

2. I am satisfied that the proposed development is consistent with the objectives for development for the previous IN3 zone in which the development is proposed to be carried out and that the savings and transitional provisions apply to the DA;

2. Pursuant to cl 4.3 of the LLEP in relation to the height of buildings (HoB), a development standard of 30 metres maximum building height is applicable to development of the subject site; and

1. The Amended Application proposes a building height of 9m, which does not exceed the HoB development standard;

3. Pursuant to cl 4.4 of the LLEP, no floor space ratio development standards apply to the subject site;

4. The provisions of cl 5.21 of the LLEP concern flood planning. The subject site is identified as flood prone land and is located within the Cabramatta Creek Catchment. The subject site is affected by overland flooding. The development incorporates measures to deal with this matter, including the design of the OSD, which will accommodate for storm events up to the 1% AEP event. In addition, the finished floor level of the building will be no lower than the 1% AEP level plus freeboard and the structure shall be constructed from flood compatible components. The parties have confirmed, and I am satisfied, that the design of the proposed development is consistent with all the requirements listed in cl 5.21(2) and those matters listed in cl 5.21(3) of the LLEP have been considered in the assessment of the proposed development. Conditions of consent relating to the management of flood planning outcomes and stormwater management on the site have been proposed at Conditions 33-36;

5. The provisions of cl 7.7 of the LLEP concern acid sulfate soils, and the subject site is not classified as having acid sulfate soils so the provisions of cl 7.7 of LLEP are not engaged;

6. The provisions of cl 7.31 of the LLEP concern earthworks, and the proposed development will be constructed at or above the existing grade. The parties have confirmed, and I am satisfied, those matters identified in cl 7.31(3) of LLEP have been considered.

2. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), a risk screening assessment was undertaken which identified that hazardous materials were below the threshold levels. The applicant provided a preliminary site investigation and detailed site investigation with the DA. Those investigations identified a low to medium risk arising from several soil stockpiles on the subject site. The investigation included recommendations as to how that risk can be managed. The parties have advised, and I am satisfied, that subject site can be made suitable for the proposed use as required by the provisions of cl 4.6 of the Resilience SEPP. Conditions 83, 84 and 85 have been imposed in relation to Contamination, Site Remediation Works and Unidentified Contamination.

3. A minor portion of the eastern (rear) part of the subject site (which is to be developed as part of the proposal) is identified as environmentally significant land under the LLEP. Clause 7.6(2) of the LLEP requires that before determining an application to carry out development on environmentally significant land, the consent authority must consider a number of factors at cl 7.6(2)(a)-(f). An ecological assessment has been undertaken by Biosis in support of the DA and the parties advise, and I am satisfied, that there is no adverse impact from the proposed development. The area of the subject site identified as environmentally significant land is not vegetated. It is noted that Burando Road has already been extended through the area of environmentally significant land to provide access to the rear of the subject site.

4. A minor potion of the eastern (rear) part of the subject site is identified on Liverpool City Council’s Bushfire Prone Lands Map as being affected by the vegetation buffer. A bushfire risk assessment was carried out by BlackAsh Bushfire Consulting in support of the DA. The DA was referred by Council to the Rural Fire Service who has provided advice on construction standards, waste and utility services, and landscaping on the subject site.

5. The DA was referred by Council to Sydney Water who provided advice on Sydney Water’s requirements to assist in planning the servicing needs of the proposed development.

6. The parties submit, and I am satisfied, that the DA as amended has considered and addressed the provisions in Liverpool Development Control Plan 2008, such that the controls in those chapters are met, or if they are not met, they achieve the objectives of those controls as required under s 4.15(3A)(b) of the EPA Act.

9. Having considered the advice of the parties provided above at [8], I am satisfied that:

1. The applicants’ DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied;

3. Approval of the proposed development is in the public interest.

10. Further, 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.

11. 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.

12. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

13. The Court notes that:

1. Liverpool City Council, as the relevant consent authority, has agreed under s 37 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development Application No DA-549/2022 to rely upon the following documents, which together form “the amended application”:

Document	Dwg	Revision	Dated
Architectural Plans prepared by Algorry Zappia & Associates Pty Ltd
Site Plan	A101	D	06.06.2023
Office Floor Plans	A102	B	02.05.2023
Workshop Plans	A103	B	02.05.2023
Office Elevations	A104	B	02.05.2023
Workshop Elevations	A105	B	02.05.2023
Sections	A106	B	02.05.2023
Perspective 1	A107	C	02.05.2023
Perspective 2	A108	C	02.05.2023
Detailed Elevations	A109	C	31.05.2023
Survey prepared by TSS Total Surveying Solutions
Overview of site	Sheet 1	200445_C	13.04.2023
Plan showing detail & levels over Lot 1007 in DP 1273535	Sheet 2	200445_C	13.04.2023
Plan showing detail & levels over Lot 1007 in DP 1273535	Sheet 3	200445_C	13.04.2023
Plan showing detail & levels over Lot 1007 in DP 1273535	Sheet 4	200445_C	13.04.2023
Plan showing detail & levels over Lot 1007 in DP 1273535	Sheet 5	200445_C	13.04.2023
Landscape Plan prepared by Scapewise
Landscape Plan	B01	B	17.05.2023
Landscape Specification	B02	B	17.05.2023
Civil Drawings prepared by Sparks + Partners Consulting Engineers
Civil Design Concept Stormwater & Grading Plan Sheet 2	DA4102	4	09.06.2023
Civil Design Concept Stormwater OSD Details Sheet 2	DA4712	3	09.06.2023
Civil Design Concept Retaining Wall Set Out Plan	DA5301	1	09.06.2023
Civil Design Concept Retaining Wall Elevation - Sheet 1	DA5401	1	09.06.2023
Civil Design Concept Retaining Wall Elevation - Sheet 2	DA5402	1	09.06.2023
Civil Design Concept Sections	DA5501	1	09.06.2023
Reports / Documents
Operational Environmental Management Plan prepared by Hi-Quality Group	Final	1	June 2023
Noise Impact Assessment prepared by VMS Australia Pty Ltd	21103.1	1	01.06.2023
BCA Assessment Report prepared by Jensen Hughes Australia	117690	1	08.05.2023
Landscape Design Statement prepared by Scapewise	1351-21-B	-	18.05.2023

2. The amended application was filed with the Court on 30 June 2023.

14. The Court orders:

1. The appeal is upheld.

2. Development Application DA-549/2022 for the construction of a transport depot at 20 Bernera Road, Prestons (Lot 1007, DP 1273535), including an ancillary workshop, office and laboratory is approved subject to the conditions in accordance with Annexure A.

G Kullen

Acting Commissioner of the Court

384964.22 Annexure A

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Decision last updated: 21 July 2023