Liverpool 888 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1208

Land and Environment Court

New South Wales

Medium Neutral Citation:

Liverpool 888 Pty Ltd v Liverpool City Council [2023] NSWLEC 1208

Hearing dates:

Conciliation conference held on 21 April 2023

Date of orders:

04 May 2023

Decision date:

04 May 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant is granted leave to rely upon the Accessibility Compliance Report prepared by Access Link Consulting Issue E, dated 23 February 2023.

(3) Development Application DA-929/2022, seeking demolition of existing structures and the construction of a six-storey mixed use development comprising of ground floor commercial premises, a 112-place childcare facility and at grade parking on Lot 31 in DP 555028, also known as 156 Terminus Street, Liverpool, is determined by the grant of consent, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed use with childcare centre – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 37

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 2.3, 2.7, 4.3, 4.4, 5.10, 7.1, 7.1A, 7.2, 7.3, 7.4, 7.5, 7.5A, 7.16, 7.31

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 2.119, 3.23

Texts Cited:

Child Care Planning Guidelines, NSW Planning and Environment, 2017

Liverpool Development Control Plan 2008

Category:

Principal judgment

Parties:

Liverpool 888 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2022/301839

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA-929/2022 (the DA) by Liverpool City Council (the Council), which as amended seeks demolition of existing structures and the construction of a six (6) storey mixed use development comprising ground floor commercial premises, a 112-place childcare centre and at grade parking on Lot 31 in DP 555028, also known as 156 Terminus Street, Liverpool (the site).

Background

2. The DA was lodged with Council on 26 August 2022. The original DA was notified to residents, with no submissions received. The DA was referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).

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

4. The Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

5. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and was held in person.

6. Based on the amended application and the agreed conditions of consent, the parties reached an 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 agreed position of the parties is for the Court to grant consent to the amended Development Application DA-929/2022, with conditions.

7. Pursuant to s 34(3) of the LEC 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 making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to DA-929/2022, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following relevant jurisdictional requirements have been specifically addressed:

1. Liverpool Local Environmental Plan 2008 (LLEP):

1. Pursuant to cl 2.3 of the LLEP, the proposed development is situated over land zoned B4 Mixed Use. The proposed development, as described to the Court, is permissible with consent. I am satisfied that the amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the LLEP, including cll 2.7, 4.3, 4.4, 5.10, 7.1, 7.1A, 7.2, 7.3, 7.4, 7.5, 7.5A, 7.16 and 7.31.

2. The amended DA was submitted and reviewed by the Liverpool Design Excellence Panel on 2 February 2023 and 16 February 2023. The requirements of cl 7.5 of the LLEP have been considered and are addressed to the satisfaction of the Court.

2. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The DA seeks to remove trees on the site, which engages Ch 2 of the SEPP Biodiversity. The removal of trees is informed by an arboricultural report that supports the amended DA, and together with agreed conditions of consent, I am satisfied the DA sufficiently addressed the relevant objectives, aims, standards and requirements of the SEPP Biodiversity.

3. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):

1. The DA relates to a proposed childcare centre, therefore Ch 3 of the SEPP Infrastructure is engaged. The amended DA, together with agreed conditions of consent satisfy the relevant provisions of the SEPP Infrastructure, and specifically s 3.23. The requirements of the Child Care Planning Guidelines are sufficiently addressed by the amended DA.

2. The site fronts to a classified road, being Terminus Street, and therefore s 2.119 of the SEPP Infrastructure is engaged. The DA was referred to Transport for NSW (TfNSW) for concurrence, although no response was received. I am satisfied that s 2.119(2) is addressed by the amended DA that relies on no direct vehicular access to a classified road.

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

1. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the supporting documents to the amended DA, I am satisfied that the applicant has provided sufficient evidence, including a combined Stage 1 Preliminary report, which together with the agreed conditions of consent, address the relevant requirements of s 4.6 of the SEPP Resilience.

5. Liverpool Development Control Plan 2008 (LDCP):

1. The original DA was publicly notified in accordance with the LDCP, with no submissions received. The relevant requirements of the LDCP are generally complied with, based on the amended plans and supporting documents to the amended DA, and described in the agreed conditions of consent.

9. Pursuant to s 23 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowners.

Grant of consent

10. 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.

11. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the DA and supporting documents.

12. I am satisfied, based on the evidence before me and as explained by the parties, that there are no jurisdictional impediments to this agreement and that Development Application DA-929/2022 be granted consent.

13. 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.

14. The Court notes that:

1. Liverpool City Council, as the relevant consent authority, has agreed, under s 37(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA-929/2022.

15. The Court orders that:

1. The appeal is upheld.

2. The Applicant is granted leave to rely upon the Accessibility Compliance Report prepared by Access Link Consulting Issue E, dated 23 February 2023.

3. Development Application DA-929/2022, seeking demolition of existing structures and the construction of a six-storey mixed use development comprising of ground floor commercial premises, a 112-place childcare facility and at grade parking on Lot 31 in DP 555028, also known as 156 Terminus Street, Liverpool, is determined by the grant of consent, subject to the conditions in Annexure A.

Sarah Bish

Commissioner of the Court

22.301839 Annexure A (480861, pdf)

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Decision last updated: 04 May 2023