Letizia Stanco v Liverpool City Council

[2024] NSWLEC 1178

Land and Environment Court

New South Wales

Medium Neutral Citation:

Letizia Stanco v Liverpool City Council [2024] NSWLEC 1178

Hearing dates:

Conciliation conference on 4 April 2024

Date of orders:

12 April 2024

Decision date:

12 April 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) The appeal is upheld.
(2) Development Application No. DA-879/2022 for the construction of a two-storey dwelling house with attached garage, cabana, shed, earthworks and swimming pool on land legally described as Lot 3 DP1267293, known as 16 Wing Circuit, Denham Court is determined by the grant of Development Consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – new dwelling – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Swimming Pools Act 1992

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, Pts 9.2, 6.6

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, ss 4.1, 4.3, 5.9

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.163

Texts Cited:

Liverpool City Council Community Participation Plan

Water NSW, Guideline for Development Adjacent to The Upper Canal and Warragamba Pipeline (September 2021)

Category:

Principal judgment

Parties:

Letizia Stanco (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
P Duffy (Solicitor) (Applicant)
A Jucha (Respondent)

Solicitors:
Duffy Law Group (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2023/304788

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Stanco (the Applicant) against Liverpool City Council (the Respondent). The Applicant filed this appeal against the refusal by the Respondent on 18 April 2023 of the Review of Determination of Development Application No. DA-879/2022.

2. The Development Application, as amended, seeks development consent for the construction of a two-storey dwelling house with attached garage, cabana, shed, earthworks and swimming pool. The application is for development on land legally described as Lot 3 DP1267293, known as 16 Wing Circuit, Denham Court (the Site).

3. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (the LEC Act) which was held on 4 April 2024. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement between the parties was to grant Development Consent to the Development Application, subject to the amended plans and conditions identified in the agreement.

4. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

5. 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). In reaching that state of satisfaction, I note the following:

State Environmental Planning Policy (Precincts - Western Parkland City) 2021

1. Pursuant to the State Environmental Planning Policy – (Precincts – Western Parkland City) 2021, the subject site is zoned C4 Environmental Living. In determining the Development Application, the parties and I have had regard to the objectives of the zone.

2. The provisions in s 4.1 (Minimum Lot size 2000m²), s 4.3 (Height of Buildings 9m) and s 5.9 (Preservation of Trees or Vegetation) have been complied with.

State Environmental Planning Policy (Sustainable Buildings) 2022

3. The required BASIX has been provided with the application.

State Environmental Planning Policy (Resilience and Hazards) 2021

4. As required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, consideration has been given to whether the Site is contaminated. The parties agree that there are no immediate site conditions which would require remediation of the Site. The proposed dwelling is located on an allotment that is part of a recently constructed subdivision that was considered for potential contamination. The parties agree that the Site is considered suitable for its residential use.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

5. As required by State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP), the parties have considered Ch 9 Hawkesbury Nepean River and Pt 9.2 General Planning considerations. The parties agree, that as a result of the timing of the lodgement of the Development Application for the Site, the transitional provisions in Pt 6.6 of the BC SEPP mean that Chr 9 is the relevant instrument.

6. The Applicant has filed stormwater management plans prepared by D & M Consulting which confirm that the stormwater management of the development meets the requirements of the BC SEPP for water quantity and quality and has also considered the need to protect the Upper Canal and Warragamba Pipeline water supply system adjacent to the development. The stormwater management system avoids any adverse impacts caused by stormwater runoff on adjoining properties by minimising the amount of run-off. The parties agree that the updated stormwater plans meet the jurisdictional requirements of the BC SEPP. The development complies with the provisions of the BC SEPP, and the Court may be satisfied that consent can be granted to the carrying out of development on the Site.

State Environmental Planning Policy (Transport and Infrastructure) 2021

7. The parties have undertaken an assessment against the Water NSW Guideline for Development Adjacent to The Upper Canal and Warragamba Pipeline as required by s 2.163 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) - Determination of Development Applications.

8. The D & M Consulting Plans, referred to above, confirm that the Development:

• Will not have a detrimental impact on drainage patterns and soil stability in the locality of the development.

• Will not substantially affect the likely future use or redevelopment of the Site.

• Will not adversely affect the existing and likely amenity of adjoining properties.

9. The reports also contain a number of recommendations, to avoid, minimise or mitigate the impacts of the development. These recommendations have been incorporated into the conditions of consent in Annexure A.

Swimming Pools Act 1992

10. The parties have agreed a number of conditions of Development Consent (conditions 96-101 inclusive in Annexure A) that ensure that the development, including the proposed swimming pool and associated structures, comply with the requirements of the Swimming Pools Act 1992 and the relevant regulations.

Other Matters

11. Liverpool Council’s Community Participation Plan does not require a notification process for this development.

6. 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’ agreement.

7. 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 the EPA Act.

Conclusions

8. The Court notes that:

1. That Liverpool City Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application No. DA-879/2022 to rely on the following documents and plans:

Document	Revision	Date
Architectural Plans prepared by Accurate Design.	Issue J (14 Sheets)	4 April 2024
Stormwater Plans prepared by D & M Consulting.	Dwg 240182 (4 Sheets)	25.03.2024

Orders

9. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA-879/2022 for the construction of a two-storey dwelling house with attached garage, cabana, shed, earthworks and swimming pool on land legally described as Lot 3 DP1267293, known as 16 Wing Circuit, Denham Court is determined by the grant of Development Consent, subject to the conditions set out in Annexure A.

……………………….

Stuart Harding

Acting Commissioner of the Court

304788.23 Annexure A

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Decision last updated: 12 April 2024