Isaac Property Developments Austral Pty Limited v Liverpool City Council

Case •

[2023] NSWLEC 1576

•

03 October 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Isaac Property Developments Austral Pty Limited v Liverpool City Council [2023] NSWLEC 1576
Hearing dates: Conciliation conference on 15 September 2023
Date of orders: 03 October 2023
Decision date: 03 October 2023
Jurisdiction:Class 1
Before: Bradbury AC
Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No DA-1184/2021 for demolition of existing structures including site clearing and tree removal, construction and use of a pub with at grade and basement car parking, removal of two existing driveway crossovers and construction of a new temporary vehicular access from Edmondson Avenue, and associated footpaths, landscaping, drainage works, earthworks and business identification signage on the land described as Lot 3 DP 1203670 (known as 352 Bringelly Road) and Lot 1 DP 1211652 (known as 362 Bringelly Road) only, and removal of an existing tree on Lot 1140 DP 2475 (known as 130 Fifth Avenue, Austral NSW) only, subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – pub – conciliation conference – agreement reached – orders made

Legislation Cited:

Contaminated Land Management Act 1997

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7, 8.10, 8.11

Environmental Planning and Assessment Regulation 2000, cll 49, 55, 92

Environmental Planning and Assessment Regulation 2021, Sch 6, Pt 1, s 3

Interpretation Act 1987, s 30A

Land and Environment Court Act 1979, ss 34, 64

Protection of the Environment Operations (Waste) Regulation 2014, cll 91, 92

Roads Act 1993, s 138

State Environmental Planning Policy (Industry and Employment) 2021, s 3.7, Pt 3.3, s 3.15

State Environmental Planning Policy (Infrastructure) 2007, cl 101

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, s 1.4, Appendix 4 ss 2.7, 4.3, 4.4, 5.9, 5.10, 6.1, 6.2, 6.3

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

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, cl 6C

State Environmental Planning Policy (Sydney Region Growth Centres) Amendment (Savings) 2022

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, Sch 3 s 2.122

Category:Principal judgment
Parties: Isaac Property Developments Austral Pty Limited (Applicant)
Liverpool City Council (First Respondent)
Transport for NSW (Second Respondent)
Representation:

Counsel:
A Pickles SC (Applicant)
C Campbell (Solicitor) (First Respondent)
A Hemmings (Second Respondent)

Solicitors:
Allens (Applicant)
Liverpool City Council (First Respondent)
Maddocks Lawyers (Second Respondent)
File Number(s): 2022/18491
Publication restriction: Nil

Judgment

  1. COMMISSIONER: This appeal concerns a development application (DA) by Isaac Property Developments Austral Pty Limited for a pub and associated works on the land described as Lot 3 DP 1203670, Lot 1 DP 1211652 and Lot 1140 DP 2475 known respectively as 352 and 362 Bringelly Road and 130 Fifth Avenue, Austral (Site). As will be seen below, the principal development (the pub) is to be constructed on Lot 3 DP 1203670 and the proposed temporary access from Edmondson Road is to be constructed on Lot 1 DP 1211652. The only development proposed on Lot 1140 DP 2475 is the removal of a single tree.

  2. The DA was made to the Council on 21 October 2021. When the DA had not been determined by the Council within the period after which it was taken to have been refused, on 21 January 2022 the Applicant appealed to the Court pursuant to ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court’s jurisdiction.

  3. On 17 August 2022 Transport for NSW exercised its right of appearance pursuant to s 64 of the Land and Environment Court Act 1979 (LEC Act) and has played an active part in the appeal since that time.

The Site

  1. The development for which the Applicant seeks development consent (Proposed Development) comprises demolition of existing structures including site clearing and tree removal, construction and use of a pub with at grade and basement car parking, removal of two existing driveway crossovers and construction of a new temporary vehicular access from Edmondson Avenue, and associated footpaths, landscaping, drainage works, earthworks and business identification signage at 352 and 362 Bringelly Road only, and removal of an existing tree on 130 Fifth Avenue. The property at 130 Fifth Avenue is not proposed to be used for the purposes of a pub.

  2. The DA originally related to the properties at 350 and 352 Bringelly Road, Austral, described as Lots 3 and 4 DP 1203670, and the owners of those lots gave their consent to the making of the DA. Following amendments made to the DA during the course of the proceedings, the property known as 350 Bringelly Road, Austral no longer forms part of the land to which the DA applies. The DA, as amended, now relates to the following land:

  1. Lot 3 DP 1203670, known as 352 Bringelly Road, Austral, on which those parts of the Proposed Development will be carried out comprising the construction of a pub and associated car parking, demolition of existing structures and two existing driveway crossovers, site clearing and tree removal, business identification signage, landscaping, civil works and construction of a private road along the northern boundary, and use for the purposes of a pub.

  2. Lot 1 DP 1211652, known as 362 Bringelly Road, Austral on which the only part of the Proposed Development to be carried out comprises the construction of a temporary private road and associated civil works, associated with the use of 352 Bringelly Road as a ‘pub’. The temporary private road will be located along the northern boundary of that lot.

  3. Lot 1140 DP 2475, known as 130 Fifth Avenue, Austral on which the only part of the Proposed Development to be carried out involves the removal of a single tree (Tree 9) located on the southern boundary. This property is not proposed to be used for the purposes of a pub.

Public notification

  1. The Council advertised and notified the DA, in its original form, in accordance with the Liverpool Community Participation Plan 2019 (Participation Plan) from 9 - 21 February 2022 for a period of 14 days. One objection was received during the public notification period.

  2. In February 2021, the Council referred the DA to the following agencies for their comment:

  1. Transport for New South Wales (TfNSW) under cl 101 of the then State Environmental Planning Policy (Infrastructure) 2007 (now s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021) (Infrastructure SEPP);

  2. Endeavour Energy;

  3. NSW Police; and

  4. Sydney Water.

  1. TfNSW provided comments on 25 May 2022. Endeavour Energy provided comments on 10 February 2022. NSW Police provided comments on or around 15 March 2022. Sydney Water provided comments on 11 March 2022. The Court was informed that the comments of each of these agencies has been taken into account by the Council in its assessment of the DA.

Amendments to the DA

  1. On 16 September 2022, the Court granted leave to the Applicant to rely on an amended Development Application (2022 Amended DA). The 2022 Amended DA included an application for an approval under s 138 of the Roads Act 1993 (Roads Act) to facilitate the construction of the access road then proposed from and to Bringelly Road.

  2. The 2022 Amended DA was notified by the Council in accordance with the Participation Plan between 28 September – 13 October 2022. No objections were received.

  3. On 13 June 2023, the Court granted leave to the Applicant to rely on a further amended Development Application (June Amended DA). Relevantly the June Amended DA deleted the application for approval under s 138 of the Roads Act and indicated that such approval would be sought separately once development consent had been granted to the DA.

  4. On 23 June 2023 to 11 July 2023, the June Amended DA was notified by the Council in accordance with the Participation Plan. No objections were received.

  5. The Council, as consent authority, has now agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), to the Applicant further amending the DA to reflect further agreed design amendments (September Amended DA). It is the development described in the September Amended DA for which the Applicant now seeks development consent. This development is described in some detail in paragraph [4] above.

  6. The Council has informed the Court that it is satisfied that the September Amended DA is not required to be notified under the Participation Plan given the limited scope of changes that are proposed.

The appeal

  1. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

  2. The Court arranged a conciliation conference between the parties under s 34 of the LEC Act. I presided over the conciliation conference, which was held on 15 September 2022.

  3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. This decision involves the Court upholding the appeal and granting development consent to the DA subject to conditions. 

  4. The final signed agreement was lodged with the Court on 15 September 2023 and is supported by a Jurisdictional Statement prepared by the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

  5. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the reasons that follow.

The statutory conditions on the grant of development consent

The conditions in the EPA Act and Regulation

  1. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act.

  2. The Applicant made the DA with the consent of the owners of each of the three properties which comprise the Site in accordance with cl 49(1)(b) of the EPA Regulation. While the EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022, it continues to apply instead of the 2021 Regulation to a development application made but not finally determined before that date: 2021 Regulation, Sch 6, Pt 1, s 3. The DA was made before, but had not been finally determined by, 1 March 2022 so the EPA Regulation continues to apply to the DA.

  3. The Court was informed by the parties that as consent is sought for demolition, the Proposed Development has been assessed by the Council against the provisions of AS2601, as required by cl 92(1)(b) of the EPA Regulation.

  4. The Proposed Development includes road works on Edmondson Avenue and an approval under s 138 of the Roads Act will be required from the Council prior to the road works being undertaken. The Council is the relevant roads authority for Edmondson Avenue. As Edmondson Avenue is a classified road, the concurrence of TfNSW will be required to any future application under s 138(2) of the Roads Act.

  5. The Proposed Development no longer includes an application for approval of the Edmondson Ave road works under s 138 of the Roads Act and the Proposed Development is therefore not integrated development for the purposes of s 4.46 of the EPA Act. In addition, as the Council is the relevant roads authority for Edmondson Avenue, even if the DA sought approval under s 138 of the Roads Act, the Proposed Development would not be integrated development for the purposes of the EPA Act: see s 4.46(3).

The conditions in the State Environmental Planning Policy (Resilience and Hazards) 2021

  1. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards 2021) (Hazards SEPP) provides that:

(1) A consent authority must not consent to the carrying out of any development on land unless—

(a)  it has considered whether the land is contaminated, and

(b)  if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)  if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

…

  1. The property at 352 Bringelly Road has been used for residential purposes for many years and a Detailed Site Investigation (DSI) and an Addendum to the DSI accompanied the 2022 Amended DA which concluded that the Site is suitable for the Proposed Development.

  2. The property at 362 Bringelly Road is currently vacant but has been used for rural purposes in the past. A DSI accompanied the June Amended DA which concluded that the Site is suitable for the Proposed Development.

  3. The proposed conditions of consent require (conditions 109 to 112):

  1. the proposed Development to comply with the requirements of the Contaminated Land Management Act 1997, the Hazards SEPP and Managing Land Contamination – Planning Guidelines (Planning NSW/EPA 1998);

  2. filling material to be limited to virgin excavated material, excavated natural material and/or material subject to a waste exemption under cll 91 and 92 of the Protection of the Environment Operations (Waste) Regulation 2014;

  3. records of accepted waste derived fill material to be submitted to the Principal Certifying Authority at the completion of earth works; and

  4. the Applicant to notify Council and the Principal Certifying Authority in writing immediately if any new information comes to light during remediation, demolition or construction works which has the potential to alter previous conclusions about site contamination and remediation.

  1. The parties are therefore satisfied, and the Court accepts, that clause 4.6 of the Hazards SEPP has been addressed.

The conditions in the State Environmental Planning Policy (Transport and Infrastructure) 2021

  1. Section 2.119 of the Infrastructure SEPP applies to the DA because the Site has a frontage to two classified roads, Bringelly Road and Edmondson Avenue. Subsection 2.119(2) of the Infrastructure SEPP provides that a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

  1. In relation to s 2.119(2)(a) of the Infrastructure SEPP, temporary vehicular access to the Proposed Development is to be provided from Edmondson Avenue, which is a classified road; however, vehicular access will ultimately be provided from Fifth Avenue once the permanent local road network has been constructed in accordance with the Indicative Layout Plan.

  2. In relation to s 2.119(2)(b) of the Infrastructure SEPP, the parties’ agreed position, which I accept, is that the safety, efficiency and ongoing operation of Edmondson Avenue will not be adversely affected by the development as a result of the Proposed Development.

  3. Finally, in relation to s 2.119(2)(c) of the Infrastructure SEPP, I am satisfied that the nature of the Proposed Development, a pub, is such that it is of a type that is not sensitive to traffic noise or vehicle emissions.

  4. The Proposed Development is a traffic-generating development under Sch 3 of the Infrastructure SEPP. Section 2.122(4) of the Infastructure SEPP provides that:

(4)   Before determining a development application for development to which this section applies, the consent authority must—

(a)  give written notice of the application to TfNSW within 7 days after the application is made, and

(b)  take into consideration—

(i)  any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, TfNSW advises that it will not be making a submission), and

(ii)  the accessibility of the site concerned, including—

(A)  the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(B)  the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and

(iii)  any potential traffic safety, road congestion or parking implications of the development.

  1. In February 2021, the Council referred the DA to TfNSW for comment and the Court was informed that the comments provided by TfNSW in its correspondence dated 25 May 2022 and 19 April 2023 have been taken into account by the parties in the preparation and assessment of the June Amended DA and September Amended DA. I also note that TfNSW has appeared and played an active part in the appeal and has joined in the parties’ agreement under s 34 of the LEC Act. I am therefore satisfied that the requirements of s 2.122(4) of the Infrastructure SEPP have been satisfied.

The conditions in the State Environmental Planning Policy (Sydney Region Growth Centres) 2006

  1. The State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) was in force at the time the DA was lodged, however it was repealed on the making of the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Precincts SEPP).

  2. On 18 February 2022, the State Environmental Planning Policy (Sydney Region Growth Centres) Amendment (Savings) 2022 (Amendment SEPP) amended the Growth Centres SEPP to insert a savings provision (cl 6C) which provides that a development application for development on land to which the Growth Centres SEPP applies which was lodged before the commencement of the Precincts SEPP but not finally determined before the commencement of the Amendment SEPP, must be determined as if the Precincts SEPP had not commenced. As the DA had been lodged before the commencement of the Precincts SEPP, but not finally determined before the commencement of the Amendment SEPP, the Growth Centres SEPP still applies to the DA.

  3. On 1 March 2022, the provisions of the Growth Centres SEPP were transferred to the Precincts SEPP pursuant to s 1.4 of the Precincts SEPP and s 30A of the Interpretation Act 1987. Section 30A of the Interpretation Act 1987 provides that the transfer of provisions does not affect the operation or meaning of those provisions.

  4. The Site is located on land within Zone B5 Business Development under the Liverpool Growth Centres Precinct Plan (Precinct Plan) contained in Appendix 4 of the Precincts SEPP. The Proposed Development is permissible with consent on land within that zone and the Council has informed the Court that it has had regard to the objectives of the zone in the assessment of the DA.

  5. Other relevant provisions of the Precinct Plan, and the parties’ comments on them, are:

  1. Section 2.7 – The September Amended DA seeks consent for demolition which is permissible with consent.

  2. Section 4.3 – Pursuant to the Height of Buildings Map, the Site is subject to a maximum building height of 12m. The Proposed Development is approximately 11m at the highest point of the building and thus complies with the maximum building height in the B5 zone.

  1. Section 4.4 – The maximum floor space ratio (FSR) control is 0.75:1 for the Site. The Proposed Development has an FSR of 0.18:1 and does not exceed the FSR control.

  2. Section 5.9 – The September Amended DA seeks consent for the removal of all trees on 352 Bringelly Road, the trees affected by access/drainage works on 362 Bringelly Road and one tree on 130 Fifth Avenue. The tree removal proposed is permissible with consent under s 5.9 of the Precinct Plan.

  3. Section 5.10 – The Site does not contain a heritage item. There are two local heritage items located within the vicinity of the Site which are the WV Scott War Memorial and Park and Bringelly Road – Cultural Landscape. The parties have informed the Court that the Proposed Development will not have a negative visual impact on the heritage items.

  4. Section 6.1 – Water, sewer and electricity services are available to the Site.

  5. Section 6.2 – The Site is not mapped as containing native vegetation to be retained.

  6. Section 6.3 – The Site is not mapped as being within any native vegetation protection area.

  1. The Council has also informed the Court that, having received and considered the latest amendments to the DA, it is satisfied that, subject to the imposition of conditions of consent, the September Amended DA complies with the aims of the Precincts SEPP.

The conditions in the State Environmental Planning Policy (Industry and Employment) 2021

  1. The signage included in the September Amended DA on all elevations of the Proposed Development comprises “business identification signs” within the meaning of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP).

  2. Section 3.7(1)(a) of the Industry SEPP provides that Pt 3.3 does not apply to business identification signs.

  3. Condition 4 in Schedule 1 of the proposed conditions of consent provides that signage on the Proposed Development is only to be used for wayfinding and building or business identification purposes, and not for general advertising purposes.

  4. As such, the requirements of s 3.15 of the Industry SEPP do not apply to the Proposed Development. The Council has informed the Court that the proposed signage has been assessed against the relevant provisions of the Liverpool Growth Centres Precincts Development Control Plan 2021.

Conclusion

  1. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

  2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

  3. The Court orders that:

  1. The appeal is upheld.

  2. Development consent is granted to Development Application No DA-1184/2021 for demolition of existing structures including site clearing and tree removal, construction and use of a pub with at grade and basement car parking, removal of two existing driveway crossovers and construction of a new temporary vehicular access from Edmondson Avenue, and associated footpaths, landscaping, drainage works, earthworks and business identification signage on the land described as Lot 3 DP 1203670 (known as 352 Bringelly Road) and Lot 1 DP 1211652 (known as 362 Bringelly Road) only, and removal of an existing tree on Lot 1140 DP 2475 (known as 130 Fifth Avenue, Austral NSW) only, subject to the conditions set out in Annexure A.

A Bradbury

Acting Commissioner of the Court

Annexure A

**********

Decision last updated: 03 October 2023

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