Kim v Liverpool City Council

[2024] NSWLEC 1268

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kim v Liverpool City Council [2024] NSWLEC 1268

Hearing dates:

Conciliation conference 12 February, 22, 29, 30 April, 3 May 2024

Date of orders:

22 May 2024

Decision date:

22 May 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant’s are granted leave to rely on an amended Class 1 Application correcting the name of the Second Applicant, Chung Eun Kim.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No DA-719/2021 (as amended), lodged with the Respondent on 28 June 2021, for the demolition of existing structures, site remediation, Torrens title subdivision of the existing allotment into 24 residential lots and 1 residue lot, and construction of roads and associated civil works on the land legally described as lot 769 DP2475 and known as 110 Twelfth Avenue, Austral NSW, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – land subdivision – conciliation conference – amendment to development application and provision of additional information – agreement between the parties – orders made.

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 8

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.7, 10.3

Interpretation Act 1987, s 30A

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2000, cll 23, 55

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 1.4, 2.6, 6.65, Ch 9, Pt 9.2, ss 9.3, 9.4

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy (Precincts - Western Parkland City) 2021, ss 1.4, 3.9 Appendix 4, ss 2.6, 2.7, 4.1, 4.1AA, 4.1AB, 4.1B, 5.1, 5.9, 5.10, 6.1

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

State Environmental Planning Policy (Sydney Region Growth Centre) 2006

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.77

Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River

Texts Cited:

Liverpool City Council Grown Centres Precinct Development Control Plan 2021

NSW Rural Fire Service, Planning for Bush Fire Protection, December 2019

Category:

Principal judgment

Parties:

Young Min Kim (First Applicant)
Chung Eun Kim (Second Applicant)
Young Hwa Lee (Third Applicant)
Chong Rae Lee (Fourth Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Parsons (Solicitor) (Applicants)
S Hainke (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicants)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/00228504

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of development application DA 719/2021. The development application sought consent for the demolition of existing structures, site remediation, Torrens title subdivision of the existing allotment into 24 residential lots and 1 residue lot, and construction of roads and associated civil works on land known as 110 Twelfth Avenue (Lot 769 DP 2475).

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 12 February 2024. The conciliation conference was adjourned to allow ongoing discussions between the parties, but the conciliation was ultimately terminated on 4 March 2024. The parties have continued without prejudice discussions and have reached an agreement as to the resolution of the contentions in the proceedings. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions. The parties advised the Court of their agreement, and the proceedings were listed for a further conciliation conference on 3 May 2024. I presided over the further conciliation conference.

3. As part of the parties agreement, the development application is to be amended with the Respondent’s agreement, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The amendments resolve the overland flow, stormwater drainage and concurrence contentions by way of provision of additional clarification, an upsized proposed trunk stormwater system and provision of concurrence from Jemena by letter dated 29 August 2023.

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 form this state of satisfaction on the basis that:

1. The development application was lodged on 28 June 2021. Pursuant to Sch 6, s 3 Environmental Planning and Assessment Regulation 2021, the EPA Regulation continues to apply to the development application.

2. The development application was made with the consent in writing of the Applicants in these proceedings, being the registered proprietors of the Site: cl 49 of the EPA Regulation.

3. The development application was notified twice. Firstly, by the Respondent from 30 August until 14 September 2021 and secondly from 22 January to 21 February 2024. No submissions were received in response. I am satisfied that the development application was appropriately notified and advertised by the Respondent Council and that the amended plans and documents agreed to during the course of the proceedings do not need to be further notified or advertised.

4. The development application is identified as integrated development pursuant to s 4.46 of the EPA Act as it requires an authorisation from the NSW Rural Fire Service under s 100B of the Rural Fires Act1997 (RF Act). The development application was referred to the Rural Fire Service (RFS) pursuant to s 100B of the RF Act on 30 August 2021. By letter dated 11 October 2021, the RFS issued General Terms of Approval and a Bushfire Safety Certificate pursuant to s 100B of the RF Act in respect of the proposed development. The General Terms of Approval have been incorporated into the annexed conditions of consent.

5. Section 4.14(1) of the EPA Act provides that development consent cannot be granted on bushfire prone land unless the consent authority:

(a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or

(b)    has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.

6. The Site is identified as Bushfire Prone Land on the relevant Bush Fire Prone Land Map under s 10.3(2) of the EPA Act. The Site is mapped as Vegetation Category 3 and Vegetation Buffer. A Bushfire Protection Assessment Report prepared by EcoLogical Australia dated 24 May 2021 has been submitted with the development application which confirms that the development application can comply with Planning for Bush Fire Protection 2019 as required under s 4.14(1)(a) of the EPA Act. The Bushfire Assessment Report also provides recommended mitigation measures and construction requirements to reasonably address the aims and objectives of the Planning for Bush Fire Protection 2019. The conditions of consent require the development to be compliant with the Bushfire Protection Assessment Report. On this basis I am satisfied that the requirements of s 4.14(1) of the EPA Act are met.

7. State Environmental Planning Policy (Sydney Region Growth Centre) 2006 (Growth Centres SEPP) was applicable to the development application at the time of lodgement. On 1 March 2022, the Growth Centres SEPP was repealed, and its provisions were transferred to the State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (Precincts SEPP). Section 1.4 of the Precincts SEPP provides that s 30A of the Interpretation Act 1987 applies to all transferred provisions, such that the transferred provisions are to be construed as if they had not been so transferred.

8. The development application, as amended, is also subject to the savings provisions prescribed in s 3.9 of the Precincts SEPP. Appendix 4 of the Precincts SEPP (Liverpool Growth Centres Precinct Plan) (Precinct Plan) is applicable to the Site.

9. Pursuant to the Precinct Plan, the Site is zoned part R2 Low Density Residential, part SP2 Infrastructure and part RE1 Public Recreation. In determining the development application, I have given consideration to the zone objectives which are:

1. In respect of the R2 Low Density Residential zone:

• To provide for the housing needs of the community within a low-density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

• To support the well-being of the community by enabling education, recreational community, religious and other activities where compatible with the amenity of a low-density residential environment.

2. In respect of the SP2 Infrastructure Zone:

• To provide for infrastructure and related uses.

• To prevent development that is not compatible with or that may detract from the provision of infrastructure.

3. In respect of the RE1 Public Recreation Zone:

• To enable land to be used for public open space or recreational purposes.

• To provide a range of recreational settings and activities and compatible land uses.

• To protect and enhance the natural environment for recreational purposes.

10. Section 2.6 of the Precinct Plan permits land to be subdivided with development consent. The development application, as amended, seeks consent for the staged subdivision of the Site.

11. Further, s 2.7 of the Precinct Plan permits the demolition of a building or a work but only with development consent. The development application, as amended, seeks consent for the demolition of existing structures on the Site.

12. Subdivision is proposed in four stages, with residential lot sizes ranging between 289.8m² to 395.4m². Pursuant to s 4.1: ‘Principal development standards – Minimum Subdivision site’ there is no minimum lot size specified for this site.

13. Section 4.1AA ‘Principal development standards – Subdivision resulting in lots between 225-300m²’ applies to the portion of the Site zoned R2 Low Density Residential. Proposed Lot 114 is less than 300m². Consistent with this section, the development application, as amended, includes a building envelope plan, which the parties agree demonstrates that a reasonable sized dwelling can be erected on the lot under future application. Proposed Lot 114 is to be created pursuant to this section. The parties agree, and I accept that lot 114 will contain a sufficient building envelope to enable the erection of a dwelling house on the lot.

14. Pursuant to s 4.1AB: ‘Principal development standards – Minimum lot sizes for dwelling houses in Zone R2’ the site is mapped as having a dwelling density (per hectare) of 15 dwelling/ hectare the minimum lot size in 300m². Excepting Lot 114, which is permitted pursuant to s 4.1AA, the remaining lots are compliant with this provision.

15. Pursuant to s 4.1B: ‘Principal development standards – Residential Development’ the Site has a minimum dwelling density of 15 dwellings per hectare. The parties agree, and I accept, that the proposed 24 residential lots on the Site achieve compliance with the minimum dwelling density required by this section and the objectives of the section.

16. The Site contains land zoned SP2 Infrastructure and RE1 Public Recreation. The development application, as amended, proposes that these portions of the Site be subdivided and comprise proposed Lots 2 and 3 respectively. I am satisfied that this is consistent with the provisions of s 5.1 ‘Relevant acquisition authority’.

17. Section 5.9: ‘Miscellaneous Provisions – Preservation of Trees and Vegetation’ applies as tree removal is proposed as part of the development application. The existing trees to be retained and removed are identified in the Civil and Stormwater Plans submitted in support of the development application. Tree removal will facilitate the construction of roads, the bulk earthworks required to provide sufficient building platforms and the provision of services. The parties agree, and I accept this section is satisfied by the grant of consent.

18. Pursuant to s 5.10: ‘Miscellaneous Provisions – Heritage Conservation’ the Site is identified as low to moderate archaeological sensitivity land. An Aboriginal Cultural Heritage Due Diligence prepared by Austral Archaeology has been submitted in support of the development application, as amended. The report confirms no Aboriginal sites, objects or areas are likely to be present within the Site and concludes that no further archaeological investigations are required. Conditions of Consent have been agreed which make provision for unexpected archaeological finds on the Site. In determining the development application, I have given consideration to the potential impact of the proposed development on any Aboriginal object, Aboriginal place of heritage significance or archaeological site. On the basis of the information provided in support of the development application and the annexed conditions, I am satisfied that the likelihood of any detrimental impact on such heritage is acceptable.

19. Section 6.1 of the Precinct Plan states that the consent authority must not grant development consent to development on land to which the Precinct Plan applies unless it is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required. Public utility infrastructure is defined to include infrastructure for the supply of water, supply of electricity, and the disposal and management of sewage.

20. The development application, as amended, is supported by a Public Utility Report prepared by GDS, as referenced in the Statement of Environmental Effects. This report demonstrates there is sufficient public utility infrastructure available. Further, during the assessment of the development application it was referred to the relevant service authorities. The Respondent has subsequently received correspondence from these authorities, advising that there are no objections to the proposal, subject to the imposition of specified requirements and conditions. These requirements and conditions have been incorporated into the conditions of consent (see for example conditions 2, 3, 4, 5 and 6). Further conditions of consent have also been imposed in connection with the provision of public utility infrastructure (see for example conditions 50, 51, 52, 166).

21. In respect of the response from Sydney Water specifically, Sydney Water have issued a Feasibility Letter dated 17 May 2022 in respect of the proposed development, advising of the requirements associated with obtaining a Section 73 Certificate in the event development consent is granted for the proposed development. On the preceding basis I am satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.

22. The development application was lodged under the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). On 1 March 2022, the SEPP 55 was repealed, and its provisions were transferred to Ch 4 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). Section 4.6 of SEPP RH requires the consent authority to consider whether land is contaminated, and if contaminated, it is to be satisfied that the land is suitable for the purpose proposed.

23. The development application, as amended, is supported by the following documents:

1. Stage 1 Preliminary Site Investigation, prepared by Sydney Environmental Group,

2. Stage 2 Detailed Site Investigation, prepared by Sydney Environmental Group, and

3. Remedial Action Plan, prepared by Sydney Environmental Group.

24. The above documents investigate the contamination status of the Site, and identify suitable remediation works to be implemented to address the areas of environmental concern identified. Subject to the completion of these works, it is concluded that the Site will be suitable for the proposed use. The development application, as amended, incorporates the remediation works identified in the Remedial Action Plan. In determining the development application, I have considered the contamination status of the Site and conclude on the basis of the preceding that the Site can be made suitable for the proposed development in accordance with s 4.6 of SEPP RH.

25. The proposed development includes the clearing of vegetation. I am satisfied that the site is in an area that is mapped as being the subject of a Biodiversity Certification Order under Pt 8 of the Biodiversity Conservation Act 2016, such that the prohibition on the clearing of native vegetation that exceeds the biodiversity offsets scheme threshold pursuant to s 2.6(2) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) does not apply to the Site.

26. At the time the development application was lodged, the provisions of the Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2 — 1997) (SREP No.20) were in force and applied to the development application. On 1 March 2022, SREP No.20 was repealed, and its provisions were transferred to the SEPP BC. Pursuant to s 6.65 of SEPP BC, the repealed Ch 9 of the SEPP BC continues to apply to the proposed development and are considered as transferred provisions pursuant to s 1.4 of the SEPP BC. Accordingly, as the site is identified on the applicable map of the catchment of the Hawkesbury Nepean River, the General Planning considerations listed in Pt 9.2 of SEPP BC apply. As required by s 9.3 of SEPP BC, in determining the development application, with the assistance of the statement of environmental effects and other supporting documents, I have taken into consideration the planning matters listed at ss 9.3 and 9.4 of the instrument. The parties agree, and I accept, that the development application has given consideration to the listed matters, and none warrant the refusal of the development application.

27. The Site contains a 24.385m wide pipeline easement for gas which runs through the Site from North to South. The pipe within the easement is owned by Jemena. The subdivision plans submitted facilitate the retention of the existing pipeline easement as part of the proposed development.

28. Pursuant to s 2.77 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), the development application was referred to Jemena for comment. Following the Applicants’ provision of an Encroachment Management Study (of which Jemena was a party), by letter dated 29 August 2023, Jemena provided its concurrence to the proposal, subject to the imposition of a specified condition of consent. This condition is adopted in the annexed conditions of consent. I am satisfied that the provisions of s 2.77 of SEPP TI are satisfied.

29. Liverpool City Council Grown Centres Precinct Development Control Plan 2021 (DCP 2021) applies to the Site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2021. In determining the development application, I have considered the provisions of the development control plan pursuant to s 4.15(1) of the EPA Act.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

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 Court notes that:

1. the Respondent, as the relevant consent authority, has agreed pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicants amending Development Application No DA-719/2021 to include the following plans and documents which were filed with the Court on 1 May 2024:

Plan Name	Drawing No.	Rev	Date	Prepared By
Amended Plan of Subdivision
Stage 0 Subdivision	1 of 5	H	15 April 2024	GDS
Stage 1 Subdivision	2 of 5	H	15 April 2024	GDS
Stage 2 Subdivision	3 of 5	H	15 April 2024	GDS
Stage 3 Subdivision	4 of 5	H	15 April 2024	GDS
NDA	5 of 5	H	15 April 2024	GDS
BEP Lot 114 and Lot 115	1 of 1	H	15 April 2024	GDS
Civil and Stormwater Plans
Cover Sheet	P00440-CI-DA-1001	E	24 April 2024	GDS
General Notes	P00440-CI-DA-1021	E	24 April 2024	GDS
General Arrangement Plan	P00440-CI-DA-1031	E	24 April 2024	GDS
Existing Site Survey and Services	P00440-CI-DA-1051	E	24 April 2024	GDS
Demolition and Tree Removal/Retention Plan	P00440-CI-DA-1061	E	24 April 2024	GDS
Erosion and Sediment Control Plan	P00440-CI-DA-1101	E	24 April 2024	GDS
Erosion and Sediment Control Details	P00440-CI-DA-1131	E	24 April 2024	GDS
Cut/Fill Earthworks Plan	P00440-CI-DA-1201	E	24 April 2024	GDS
Site Sections	P00440-CI-DA-1231	E	24 April 2024	GDS
Stormwater Catchment Plan Sheet 1 of 2	P00440-CI-DA-1301	E	24 April 2024	GDS
Stormwater Catchment Plan Sheet 2 of 2	P00440-CI-DA-1302	E	24 April 2024	GDS
Civil Works and Stormwater Drainage Plan	P00440-CI-DA-1321	E	24 April 2024	GDS
Civil Works and Pavement Details	P00440-CI-DA-1401	E	24 April 2024	GDS
Bioretention Basin Plan and Details	P00440-CI-DA-1411	E	24 April 2024	GDS
Bioretention Basin Sections Sheet 1 of 2	P00440-CI-DA-1412	E	24 April 2024	GDS
Bioretention Basin Sections Sheet 2 of 2	P00440-CI-DA-1413	E	24 April 2024	GDS
Typical Road Cross Sections	P00440-CI-DA-1501	E	24 April 2024	GDS
Road Longitudinal Sections Sheet 1 of 3	P00440-CI-DA-1521	E	24 April 2024	GDS
Road Longitudinal Sections Sheet 2 of 3	P00440-CI-DA-1522	E	24 April 2024	GDS
Road Longitudinal Sections Sheet 3 of 3	P00440-CI-DA-1523	E	24 April 2024	GDS
Street Tree Planting Plan	P00440-CI-DA-1701	E	24 April 2024	GDS
Street Tree Planting Detail	P00440-CI-DA-1721	E	24 April 2024	GDS
Concept Stormwater Management Plan
Concept Stormwater and Water Quality Management Report	-	-	October 2023	GDS
Flood Report
Flood Assessment	220109	-	October 2023	GRC Hydro
Other Documents
Jemena letter to Council	29/08/2023	Jemena
Flood Modelling including MUSIC Model and DRAINS model	GDS

8. The Court orders that:

1. The Applicants are granted leave to rely on an amended Class 1 application correcting the name of the Second Applicant, Chung Eun Kim.

2. The appeal is upheld.

3. Development consent is granted to Development Application No DA-719/2021 (as amended), lodged with the Respondent on 28 June 2021, for the demolition of existing structures, site remediation, Torrens title subdivision of the existing allotment into 24 residential lots and 1 residue lot, and construction of roads and associated civil works on the land legally described as Lot 769 DP2475 and known as 110 Twelfth Avenue, Austral NSW, subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

23.228504 Annexure A

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Decision last updated: 22 May 2024