JG Development Pty Ltd c/o RPS Australia East Pty Ltd v Liverpool City Council

[2019] NSWLEC 1325

Land and Environment Court

New South Wales

Medium Neutral Citation:	JG Development Pty Ltd c/o RPS Australia East Pty Ltd v Liverpool City Council [2019] NSWLEC 1325
Hearing dates:	Conciliation Conference 5 July 2019
Date of orders:	10 July 2019
Decision date:	10 July 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: 1) Leave is granted to the Applicant to rely on the following amended or additional plans and documents: a) Master Plan ref no. PR136019-DA-Rev C Sheet 1 of 3 dated 28 November 2018 prepared by RPS Australia East Pty Ltd filed on 10 December 2018; b) Zero Lot Line Compliance Plan ref no. ref no. PR136019-DA-Rev C Sheet 2 of 3 dated 28 November 2018 prepared by RPS Australia East Pty Ltd filed on 10 December 2018; c) Building Envelopes ref no. PR136019-DA-Rev C Sheet 3 of 3 dated 28 November 2018 prepared by RPS Australia East Pty Ltd filed on 10 December 2018; d) Landscaping and Parking Plan ref no. PR136019-DA-Rev C dated 28 November 2018 prepared by RPS Australia East Pty Ltd filed on 10 December 2018; e) Shadow diagrams ref no. 17-0725 Issue B sheets 1 to 7 of 7 dated 29 November 2018 prepared by Design Concepts Sydney filed on 10 December 2018; f) Lot and Drainage Design ref no. 17-34-DA Rev 04 plans numbered 00, 01, 02, 03, 04, 05, 06, 07, 10, 20, 30, 40 (catchment plan (interim)), 40 (catchment plan (ultimate)), 41, 42 and 51 dated 4 February 2019 prepared by Orion Consulting Engineers; and g) Aboriginal Cultural Heritage Assessment Report prepared by AECOM Australia Pty Ltd dated 1 May 2018 filed on 10 December 2018. 2) The appeal is upheld. 3) Development application No. DA-859/2017, for subdivision of Lot 1060 DP 2475 known as 300 Sixth Avenue Austral into 29 Torrens title lots, construction of new road, services, drainage and earthworks and demolition of all existing structures and trees, is approved in accordance with the conditions set out in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – Torrens Title residential subdivision – conciliation conference – agreement between parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy No 55—Remediation of Land Sydney Water Act 1994
Category:	Principal judgment
Parties:	J G Development Pty Ltd c/o RPS Sydney East Pty Ltd (Applicant) Liverpool City Council (Respondent)
Representation:	Solicitors: J Hughes, Beatty Legal (Applicant) C Dury, Sparke Helmore Lawyers (Respondent)
File Number(s):	2018/178157
Publication restriction:	No

Judgment

1. COMMISSIONER: The applicant lodged development application DA-859/2017 with Liverpool City Council (Council) on 13 October 2017. The development application seeks consent for the demolition of all structures, tree removal and the torrens title subdivision of the land into 28 residential lots, creation of a residue parcel, and new road, service, drainage and earthworks. The subject site is Lot 1060 in DP 2475, known as 300 Sixth Avenue, Austral.

2. The applicant is appealing the deemed refusal of the application in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 5 July 2019. 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 decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act.

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. Sydney Water has confirmed that the development is capable being serviced with detailed requirements to be detailed in a future Section 73 Certificate under the Sydney Water Act 1994.

2. State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) applies to the subject site. The relevant controls are found in Appendix 8: Liverpool Growth Centres Precinct Plan. Relevantly, pursuant to this instrument the site is zoned R2- Low Density Residential Development. Further cl 6.2 of Appendix 8 permits land to be subdivided with consent.

3. The development application complies with the relevant development standards in the Growth Centres SEPP.

4. The application was lodged with a Phase 1 and 2 Contamination, Salinity and Geotechnical Investigation for the subject site. This report concludes that the subject site had some contamination issues relating to buried rubbish fill and surface asbestos. Accordingly the applicant has prepared a Remediation Action Plan for the site. The plan and its recommendations are incorporated in the agreed conditions of consent (Annexure A). On this basis I am satisfied that the land is contaminated, but will be suitable for the proposed use after remediation, and the land will be remediated before residential use (cl 7 of State Environmental Planning Policy No 55—Remediation of Land).

5. The original application was notified in accordance with the relevant development control plan and the submissions have been considered.

6. The Court notes that the parties agree that the amendments are minor for the purposes of s 8.15(3) of the EPA Act, given that the amendments to the plans largely relate to a revised lot layout of Lots 501, 502 and 503, with consequential amendments, and a revised drainage layout.

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 LEC Act are:

1. Leave is granted to the Applicant to rely on the following amended or additional plans and documents:

1. Master Plan ref no. PR136019-DA-Rev C Sheet 1 of 3 dated 28 November 2018 prepared by RPS Australia East Pty Ltd filed on 10 December 2018;

2. Zero Lot Line Compliance Plan ref no. ref no. PR136019-DA-Rev C Sheet 2 of 3 dated 28 November 2018 prepared by RPS Australia East Pty Ltd filed on 10 December 2018;

3. Building Envelopes ref no. PR136019-DA-Rev C Sheet 3 of 3 dated 28 November 2018 prepared by RPS Australia East Pty Ltd filed on 10 December 2018;

4. Landscaping and Parking Plan ref no. PR136019-DA-Rev C dated 28 November 2018 prepared by RPS Australia East Pty Ltd filed on 10 December 2018;

5. Shadow diagrams ref no. 17-0725 Issue B sheets 1 to 7 of 7 dated 29 November 2018 prepared by Design Concepts Sydney filed on 10 December 2018;

6. Lot and Drainage Design ref no. 17-34-DA Rev 04 plans numbered 00, 01, 02, 03, 04, 05, 06, 07, 10, 20, 30, 40 (catchment plan (interim)), 40 (catchment plan (ultimate)), 41, 42 and 51 dated 4 February 2019 prepared by Orion Consulting Engineers; and

7. Aboriginal Cultural Heritage Assessment Report prepared by AECOM Australia Pty Ltd dated 1 May 2018 filed on 10 December 2018.

2. The appeal is upheld.

3. Development application No. DA-859/2017, for subdivision of Lot 1060 DP 2475 known as 300 Sixth Avenue Austral into 29 Torrens title lots, construction of new road, services, drainage and earthworks and demolition of all existing structures and trees, is approved in accordance with the conditions set out in Annexure A

…………………….

D M Dickson

Commissioner of the Court

Annexure A (1.27 MB, pdf)

**********

Decision last updated: 16 July 2019