Limousin Developments Pty Ltd v Liverpool City Council

[2022] NSWLEC 1183

Land and Environment Court

New South Wales

Medium Neutral Citation:

Limousin Developments Pty Ltd v Liverpool City Council [2022] NSWLEC 1183

Hearing dates:

Conciliation conference held on 24 March 2022

Date of orders:

07 April 2022

Decision date:

07 April 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The Appeal is upheld.
(2) Development Application No. DA 125/2021, as amended, for the demolition of existing structures, site remediation, and Torrens Title subdivision into 27 lots including 9 integrated lots, and construction of roads and associated civil works over 2 stages on Lot 935 DP 2475 being 209-215 Eighth Avenue, Austral, with stormwater drainage works on Lot 2 DP 1242822 and Lot 933 DP 2475 known, respectively as 205 Eighth Avenue and 195 Eighth Avenue, Austral is determined by grant of consent, subject to conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pts 9.2, 9.3

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

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

Texts Cited:

Liverpool Growth Centre Precincts Development Control Plan 2021

Category:

Principal judgment

Parties:

Limousin Developments Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Perkins (Solicitor) (Applicant)
S Berveling (Respondent)

Solicitors:
Project Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2021/216369

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against deemed refusal of Development Application (DA) 125/2021 by the Liverpool City Council (hereafter the Council), which seeks demolition of structures, Torrens title subdivision into 27 lots, and construction of associated drainage/earth/civil works on Lot 935 DP 2475, also known as 209-215, also known as Eighth Avenue, Austral (together the site).

Background

2. The DA was submitted to Council on 9 February 2021.

3. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference for the appeal, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), without an onsite view as requested by the parties, and conducted by Microsoft Teams.

5. The Court granted leave for the applicant to amend the plans and documents that support the DA, by way of a Notion of Motion (NoM) heard on 16 February 2022, without opposition by the respondent.

6. Based on the amended DA, expert advice and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 125/2021, with conditions.

7. Pursuant to s 34(3) of the Court 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. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to ss 4.14 and 4.15, to grant consent to DA 125/2021, subject to conditions described in Annexure ‘A’.

Jurisdictional prerequisites

8. Pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the applicant has satisfied the Court with the provision of written consent from all landowners for works proposed and relied on by the amended DA.

9. The site is identified as ‘bushfire prone’ land. Section 4.14 of the EPA Act establishes a requirement to consider the relevant specifications relating to development on bushfire prone land. The amended DA is supported by a Bushfire Hazard Assessment Report and the conditions of consent address the required bushfire protection measures. The Rural Fire Service have provided General Terms of Approval (GTA’s), which are adopted in the conditions of consent.

10. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been assessed by the Court:

1. State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (SEPP Precincts):

1. Pursuant to the SEPP Precincts, the proposed subdivision and residential development is situated over land zoned R3 Medium Density Residential and R2 Low Density Residential. The application as described to the Court is permissible with consent within the land use zones and addresses the objectives of the respective zones. The amended application sufficiently addresses all the relevant objectives, aims, standards and requirements of the SEPP Precincts. The conditions of consent adopt the GTA’s of relevant authorities.

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to cl 4.6 of the SEPP Resilience, the site must be deemed suitable, or can be made suitable for the proposed use, prior to grant of consent. Based on the supporting documents to the amended DA, the Court is satisfied that the applicant has provided sufficient evidence, including contamination assessment reports (Stages 1 and 2), and a remedial action plan (RAP), which are supported by the agreed conditions of consent, to address the requirements of cl 4.6 of the SEPP Resilience.

3. State Environmental Planning Policy (Biodiversity & Conservation) 2021 (SEPP Biodiversity):

1. The amended application sufficiently addresses the relevant provisions described in Pts 9.2 and 9.3 of the Biodiversity SEPP.

4. Liverpool Growth Centre Precincts Development Control Plan 2021 (DCP):

1. The relevant requirements of the DCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The original proposed development was publicly notified in accordance with the DCP.

Grant of consent

11. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

12. The Council has undertaken the appropriate merit assessment of the proposed development.

13. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 125/2021 can be granted, as it satisfies the relevant requirements of ss 4.14 and 4.15 of the EPA Act.

14. 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

15. The Court notes that:

1. On 16 February 2022 the Court granted leave to rely on amended plans and other documents. These documents were uploaded on the NSW Planning Portal on 22 February 2022, pursuant to cl 55 of the EPA Reg;

2. Documents supporting the DA were further updated, and with the agreement of the respondent, pursuant to cl 55 of the EPA Reg, were uploaded on 25 March 2022; and

3. The documents uploaded to the NSW Planning Portal, which amend the DA, were filed with the Court on or before 24 March 2022.

16. The Court orders:

1. The Appeal is upheld.

2. Development Application No. DA 125/2021, as amended, for the demolition of existing structures, site remediation, and Torrens Title subdivision into 27 lots including 9 integrated lots, and construction of roads and associated civil works over 2 stages on Lot 935 DP 2475 being 209-215 Eighth Avenue, Austral, with stormwater drainage works on Lot 2 DP 1242822 and Lot 933 DP 2475 known, respectively as 205 Eighth Avenue and 195 Eighth Avenue, Austral is determined by grant of consent, subject to conditions set out in Annexure A.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A  (1659717, pdf)

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Decision last updated: 07 April 2022