Jubilee Estate Group Pty Ltd v Liverpool City Council

[2024] NSWLEC 1420

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Jubilee Estate Group Pty Ltd v Liverpool City Council [2024] NSWLEC 1420

Hearing dates:

5 and 6 June 2024

Date of orders:

24 July 2024

Decision date:

24 July 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The orders of the Court, as amended on 2 October 2024, are as follows:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application No DA-1186/2022, as amended, for the demolition of existing structures, removal of ten trees, and subdivision of land into 19 Torrens Title lots including one residue lot, and associated site works including earthworks, provision of infrastructure and the construction of internal roads is determined by the grant of development consent on land legally described as Lot 350 DP2475 also known as 255 Fifteenth Avenue, Austral, subject to the conditions at Annexure A.

(3)   The exhibits are returned with the exception of Exhibits 2, A-E, G, H, J-M and P which are retained.

Catchwords:

APPEAL – development application – land subdivision – neighbour objections

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, Div 4.8

Rural Fires Act 1997

Threatened Species Conservation Act 1995, Sch 7

Water Management Act 2000

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4 , s 6.1

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Cases Cited:

New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154

Texts Cited:

Liverpool Growth Centre Precincts Development Control Plan 2021

Category:

Principal judgment

Parties:

Jubilee Estate Group Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Ireland (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Keypoint Law (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/159491

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for demolition of existing structures, removal of ten trees and subdivision of land into 19 Torrens Title lots including one residue lot, and associated site works including earthworks, provision of infrastructure and the construction of internal roads at Lot 350 DP2475 also known as 225 Fifteenth Avenue, Austral (site).

2. The proceedings are brought by the applicant under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and are against the refusal of development application No DA-1186/2022 (DA) by Liverpool City Council (Council).

Setting

3. I rely on Council’s amended statement of facts and contentions (amended SOFAC) filed 10 April 2024 (Ex 2) for much of the descriptive material which follows.

4. The site is rectangular in shape with a frontage of 80.63 m to Fifteenth Avenue and a depth of 150.43 m. The total area is approximately 1.2 ha. The site is relatively flat with scattered vegetation. It contains a two storey residential dwelling, a single storey attached dual occupancy and associated structures.

5. The locality is transitioning from smaller scale agricultural uses and rural residential living into low density and medium density residential subdivisions in accordance with recent planning controls.

Planning context

6. The site falls within the Austral Precinct as identified in State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (SEPP P-WSP). It is Appendix 4 (Liverpool Growth Centres Precinct Plan) of SEPP P-WSP which provides relevant controls. Under the relevant provisions the site is located partly within Zone R2 Low Density Residential and partly within Zone SP2 Infrastructure. The SP2 zoned area comprises a strip of land within the site, running parallel to Fifteenth Avenue (ie parallel to the site’s road frontage and along the site’s southern boundary). There is no dispute that the proposal is permissible development under the relevant zoning and other associated controls. It is agreed that there is no development standard that is contravened.

7. I am advised that the site is certified land pursuant to the Biodiversity Certification Order conferred on State Environmental Planning Policy (Sydney Region Growth Centres) 2006 under Sch 7 of the Threatened Species Conservation Act 1995.

8. A very small portion of the site is identified as being bushfire prone and would require a bushfire safety authority under the Rural Fires Act 1997. This makes the DA integrated development under Div 4.8 of the EPA Act. The approval body of concern (NSW Rural Fire Service) has issued general terms of approval (GTAs), which have been incorporated into agreed draft conditions of consent provided to the Court on 11 July 2024 (agreed draft conditions).

9. A controlled activity approval would also be required under the Water Management Act 2000. I will return to this point below.

Procedural background

10. Council formally refused the DA on 21 February 2023, for the following reasons as listed in the Notice of Determination (Ex 2 par 22):

“1) The application failed to include sufficient information to enable Council to undertake a full and proper assessment of the development under sections 4.15(1) of the Act.

2) Due to the above reasons, approval of the application is not in the public interest, under Section 4.15(1)(e) of the Act.”

11. On 18 May 2023 the applicant commenced appeal proceedings against this determination. Then on 1 February 2024 the Court approved an amendment to the DA. Council notified the amended DA during February 2024, receiving two objecting submissions. I will also note here that there was a further oral submission made during the site inspection, objecting to the proposal.

Contentions

12. With the amended application and the filing of the amended SOFAC, a total of six contentions remained in dispute and there were also concerns in regard to the completeness of the information supplied. Subsequent amendments and additional information supplied by the applicant has brought about Council’s position where they submit that all contentious considerations have been addressed and that consent can be granted. While I note this submission, it is a matter for the Court to make its own findings in relation to the matter before it. Below I further explain the particulars and draw conclusions.

Integrated development

13. It is clear now that GTAs have been issued, relevantly, in relation to both integrated development aspects of the DA. Bushfire GTAs were outlined above. GTAs relating to the controlled activity approval were issued by Department of Planning and Environment – Water (DPIE-W) on 11 June 2024. It is relevant to note that stormwater management plans for the proposal were amended during the course of the hearing itself (as a consequence of the hearing of objecting submissions and the physical inspections undertaken during the site inspection). These amending stormwater plans were forwarded to DPIE-W, and it was these amended plans that were the subject of the GTAs issued by DPIE-W. I also note that these GTAs have been included in the agreed draft conditions.

Classified road

14. This contention raised concern about the portion of the site zoned SP2 and intended for the purposes of the future widening of Fifteenth Avenue a classified road (Lot 19). The parties have come to an agreement as to the appropriate response to this concern, including the requirement in the agreed draft conditions to identify Lot 19 as a residue lot.

Contamination and remediation

15. A detailed site investigation dated 4 October 2023 (DSI) had been submitted (marked Ex S). However, it refers to (and relies upon) a document entitled “Preliminary Site Investigation, 255 Fifteenth Avenue, Austral by EI Australia dated 20th December 2021” (PSI). The PSI had not been submitted in support of the DA and Council believed it was necessary for this to occur to enable a proper assessment. Council’s position was mindful of Ch 4 and, in particular, s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), and also the related provision of the Liverpool Growth Centre Precincts Development Control Plan 2021 (Growth Centres DCP). In the course of the proceedings the PSI was tendered into evidence (Ex Q). In turn, and after due consideration, Council indicated it was satisfied in regard to the provisions at s 4.6 of SEPP Resilience and Hazards. I too am satisfied in this regard and in accordance with Ex S find that, on the available evidence, the land is suitable for the purpose for which the development is proposed to be carried out and arrangements are in place to ensure this into the future; by way of consent conditions.

Servicing

16. Section 6.1 of Appendix 4 of SEPP P-WSP provides that a consent authority must not grant consent unless it is satisfied in regard to certain public utility infrastructure availability or arrangements for future provision when required. Council now indicates that, with amending plans, further information and the agreed draft conditions; it is satisfied in regard to the provision of the supply of water, the supply of electricity and the disposal and management of sewage. Based on Council’s position in regard to this technical area I too am satisfied in regard to these three matters raised in s 6.1(2).

Stormwater drainage

17. Council had not been satisfied that the proposed development provided an acceptable drainage system, in particular, arrangements for the management of upstream flows. There was also a concern in regard to the arrangements for discharge of stormwater from the site downstream. Amending stormwater plans (Ex T) accommodated each of these concerns to Council’s satisfaction. This was documented in a supplementary joint report prepared by relevant experts R Khadka and N Zaki, tendered into evidence as Ex 11.

Traffic and public domain

18. Council raised a number of concerns about the particulars of the road layout and vehicular and pedestrian movements. Amending layout plans and agreed draft consent conditions accommodated each of Council’s concerns on that front. This was documented in two joint reports prepared by relevant experts J Glanville and P Bastawrous, tendered into evidence as Exs 6 and 7.

Insufficient information contention

19. Council advised that, with the further submitted material from the applicant, the insufficient information contention was no longer pressed.

Objecting submissions

20. The two objecting submissions received during the notification process related to the potential impacts of the proposal upon residents of Frelon Avenue to the immediate north of the site. The concerns raised were essentially about the intensification of development in the subject site. I agree with the parties that this subdivision, along with the existing development to the north side of Frelon Avenue, essentially align with the planning intentions for this residential release area. In turn, the relationship of the proposed subdivision with the existing development on Frelon Avenue is reasonably understood to be as planned.

21. During the site inspection at the commencement of these proceedings further objecting submissions were heard. The objection related to the land immediately downstream, and to the west of, the site. The principal concern, as I understood it, related to the implications of the intensification of stormwater run-off from the (developed) site to the land immediately downstream. The concern raised by this objector was the subject of some considerable scrutiny during the site inspection and was the subject of the preparation of amending stormwater plans. As indicated above, the stormwater experts have now agreed that the now proposed arrangements for stormwater management, satisfactorily attend to the question of downstream stormwater management. The essence of it, as put by the experts is that (Ex 11 p 5):

“The concept plan has been amended (E220535 255 Fifteenth Avenue, Austral Issue J dated 05.06.2024) proposing to discharge to the current low/overland flow path. The proposal provided energy dissipation and scour protection with level spreader arrangement within the development site. The proposal is satisfactory with respect to stormwater management perspective.”

22. While the concerns of the objector in relation to stormwater management can be acknowledged, I am mindful, and take the view that, weight should go to expert evidence in this situation: NewCentury Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 at [61]-[64] (per Lloyd J).

Other provisions of s 4.15(1) of the EPA Act

23. I have also taken into consideration other relevant matters at s 4.15(1) of the EPA Act, including the likely impacts of the development, the suitability of the site for the development and public interest. It seems quite clear that this proposal accords generally with the planning intentions for this locality in the further rollout of land for residential accommodation. In that sense the site is seen to be entirely suitable for the proposed development and there is a public interest in it progressing. The potential impacts of the development have been appropriately considered in the expert evidence and found to be not unreasonable.

Conclusion

24. While I am mindful of the agreed position of the parties, it is my own findings, as can be understood from the above, that the proposal warrants the grant of consent in accordance with agreed draft conditions.

Orders

25. The orders of the Court, as amended on 2 October 2024, are as follows:

26. The Court orders that:

1. The appeal is upheld.

2. Development Application No DA-1186/2022, as amended, for the demolition of existing structures, removal of ten trees, and subdivision of land into 19 Torrens Title lots including one residue lot, and associated site works including earthworks, provision of infrastructure and the construction of internal roads is determined by the grant of development consent on land legally described as Lot 350 DP2475 also known as 255 Fifteenth Avenue, Austral, subject to the conditions at Annexure A.

3. The exhibits are returned with the exception of Exhibits 2, A-E, G, H, J-M and P which are retained.

P Walsh

Commissioner of the Court

Annexure A

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Amendments

02 October 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), correction is made to the site address in order (2) and Annexure A, being corrected from 225 Fifteenth Avenue to 255 Fifteenth Avenue.

Decision last updated: 02 October 2024