Low Cost Housing No 4 Pty Ltd v Liverpool City Council

[2025] NSWLEC 1013

Land and Environment Court

New South Wales

Medium Neutral Citation:

Low Cost Housing No 4 Pty Ltd v Liverpool City Council [2025] NSWLEC 1013

Hearing dates:

Conciliation conference on 12 December 2024

Date of orders:

15 January 2025

Decision date:

15 January 2025

Jurisdiction:

Class 1

Before:

Young AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA-799/2019 for the subdivision of an existing allotment into a Torrens Title subdivision of 39 residential lots, including demolition of existing structures and vegetation removal, site remediation, and construction of roads, and associated civil works over 3 stages, at 1 Kelly Street Austral, is determined by the grant of consent, subject to the conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – subdivision of residential lots – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.47, 8.7

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Water Management Act 2000, s 91

Environmental Planning and Assessment Regulation 2021, Sch 6 s 3

Environmental Planning and Assessment Regulation 2000, ss 49, 55

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9 s 9.5

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

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

State Environmental Planning Policy (Precincts – Western Sydney Parklands) 2021, App 4 ss 2.3, 2.6, 2.7, 4.1, 4.1AB, 4.1B, 5.10, 6.1, 6.3

Texts Cited:

Liverpool Community Participation Plan 2019

Category:

Principal judgment

Parties:

Low Cost Housing No 4 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Sonter (Applicant)
D Loether (Respondent)

Solicitors:
Miles Oakley (Applicant)
Bartier Perry (Respondent)

File Number(s):

2023/224846

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) against the refusal by Liverpool City Council of Development Application DA-799/2019 (DA) on 23 February 2023.

2. The DA was lodged on 13 November 2019. Pursuant to Sch 6, s 3 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), the former repealed Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) continues to apply to the DA.

3. Pursuant to cl 55(1) of the EPA Regulation 2000, Liverpool City Council has approved amending the DA in accordance with the amended plans and supporting material listed in the agreed conditions of consent (Condition 1 in Annexure A of this judgment).

4. The DA, as amended, seeks consent for the subdivision of the existing lot into 39 residential lots, demolition of existing structures, removal of trees, site remediation, construction of roads and associated civil earthworks over three stages at 1 Kelly Street, Austral – legally identified as Lot 102 DP 854174 (the site).

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 12 December 2024.  I presided over the conciliation conference.

6. On 11 December 2024, the parties submitted an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

7. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions in Annexure A.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

9. The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.

Jurisdictional Prerequisites

10. Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

Landowner’s Consent

11. In accordance with cl 49(1) of the EPA Regulation 2000, I am satisfied that the DA was lodged with the consent of the owners of the land to which the development relates.

Public Notification

12. The DA was lodged on 13 November 2019 and was notified in accordance with the Liverpool Community Participation Plan between 21 January 2020 and 27 February 2020. No submissions were received during the public notification of the DA.

13. An amended form of the DA was notified in accordance with the Respondent’s Community Participation Plan between 13 June 2024 and 22 August 2024. No submissions were received during the public notification of the amended form of the DA.

14. The parties agree, and I accept that the recent further amendments to the DA do not intensify or change the environmental impact of the amended form of the DA that was publicly notified from 13 June 2024 and 22 August 2024, and accordingly public notification of the further amended DA is not required.

Integrated Development

15. Pursuant to s 4.46 of the EPA Act, the DA is integrated development as it requires authorisation under the Rural Fires Act 1997 and the Water Management Act 2000.

16. The DA was referred to the NSW Rural Fire Service, which issued General Terms of Approval and a Bushfire Safety Authority on 8 April 2020, pursuant to s 100B of the Rural Fires Act 1997.

17. The DA was also referred to the Natural Resources Access Regulator, which issued its General Terms of Approval in relation to the proposed controlled activity on 2 March 2020, pursuant to s 91(2) of the Water Management Act 2000.

18. The parties agree, and I am satisfied that the amended DA does not change the proposed development in a manner that would alter the General Terms of Approval from the integrated approval bodies.

19. In accordance with s 4.47(3) of the EPA Act, the conditions of consent in Annexure A are consistent with the General Terms of Approval proposed to be granted by the relevant integrated development approval bodies in relation to the proposed development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP)

20. The site is located within the Hawkesbury-Nepean Catchment area. The now repealed Ch 9 of the Biodiversity SEPP continues to apply to the DA, and establishes the framework and aims to protect the environment of the Hawkesbury-Nepean system.

21. Based on consideration of the documentation provided by the Applicant and the proposed conditions of consent in Annexure A, the parties agree and I am satisfied that the proposed development will not result in any significant adverse impacts on either water quality or water quantity in the Hawkesbury Nepean Catchment, in accordance with ss 9.5(3) and 9.5(4) of the Biodiversity SEPP. This includes consideration of the following plans and reports:

1. Pavement and Salinity Investigation prepared by GeoEnviro Consultancy dated January 2019;

2. Revised Flood Impact and Mitigation Assessment prepared by BMT Commercial dated 16 September 2024;

3. Waste Management Plan prepared by Sydney Environmental Group dated 13 September 2024; and

4. Amended Civil Engineering Plans dated 30 August 2024.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

22. Section 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent to any development on land unless it has considered whether a site is contaminated land or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use.

23. In accordance with s 4.6(3), the Applicant has provided the following documentation which confirms the appropriate remediation strategies and concludes that the site can be made suitable for the proposed development:

1. Pavement and Salinity Investigation prepared by GeoEnviro Consultancy dated January 2019;

2. Phase 1 and 2 Contamination Assessment prepared by GeoEnviro Consultancy dated January 2019; and

3. Remediation Action Plan (RAP) prepared by GeoEnviro Consultancy dated February 2018.

24. Subsequent to the above being submitted, according to the NSW Environment Protection Authority (NSW EPA), illegal fill material was imported onto the site. The NSW EPA issuing a Clean-Up Notice (Notice Number 1600802) dated 15 April 2021. To address the Clean-Up Notice, remediation works were completed on the site, which the NSW EPA has confirmed has resolved its concerns in correspondence dated 19 January 2023.

25. The Updated Detailed Site Investigation prepared by 4Pillars Environmental Consulting dated 16 November 2023 addresses the recent contamination history of the site, analyses further testing investigations and concludes that the site is suitable for the proposed subdivision works, subject to the implementation of the remediation works being completed pursuant to the RAP, prepared by GeoEnviro Consultancy, dated February 2018. The recommendations of these reports have been appropriately reflected within the conditions of consent.

26. On this basis, the parties agree, and I am satisfied that the land is suitable for the proposed development, subject to the conditions of consent in Annexure A.

State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Precincts SEPP)

27. State Environmental Planning Policy (Sydney Region Growth Centres) 2006 was in force at the time the DA was lodged, however it was repealed on the making of the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Precincts SEPP).

28. Under the Precincts SEPP, the site is subject to the controls in Appendix 4 – Liverpool Growth Centres Precinct Plan (Precinct Plan). Under the Precinct Plan, the site is zoned R2 Low Density Residential.

29. Pursuant to s 2.7, demolition is permissible with consent on any land to which the Precinct Plan applies. Pursuant to s 2.6, the subdivision is permissible with consent on any land to which the Precinct Plan applies. Consequently, the proposed development which comprises demolition and subdivision is permissible with consent.

30. Pursuant to s 2.3 (Zone objectives and Land Use Table), the Court must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The parties agree, and I am satisfied that the proposed development is consistent with the objectives of the applicable zones. In particular, I note that the proposed development will provide for the housing needs of the community within a low density residential environment.

31. Section 4.1 (Minimum subdivision lot size) applies to a subdivision of any land shown on the Lot Size Map that requires development consent. The site is not subject to a minimum lot size requirement pursuant to Lot Size Map LSZ_007.

32. Section 4.1AB (Minimum lot sizes for residential development in Zone R2 Low Density Residential and Zone R3 Medium Density Residential) relates to minimum lot sizes for residential development in R2 zoned land. The minimum dwelling density per hectare of the site is identified on the Residential Density Map as 15. Accordingly, pursuant to cl 4.1AB(3)(b), the minimum lot size for a dwelling house is 300m². All the proposed lots have a site area greater than 300m² and accordingly, the proposed development is compliant with this section of the Precinct Plan.

33. Section 4.1B (Residential density) provides that the density of any residential development is not to be less than the density established by the Residential Density Map. As noted above, the dwelling density of the site is 15 dwellings per hectare for the site. The site has a total area of 2.428 hectares and the proposal is for 39 lots, being 16 dwellings per hectare. Accordingly, the proposed development complies with this section of the Precinct Plan.

34. Clause 5.10 (Heritage conservation), development consent is required for subdivision of land pursuant to s 5.10(2)(f) on which a heritage item is located or that is within a heritage conservation area, or an Aboriginal object is located or that is within an Aboriginal place of heritage significance. The site is not mapped within a heritage conservation area, nor does it contain or is it adjacent to heritage items. An Aboriginal Archaeological Survey Report has also been prepared for the proposed development by RPS Group which confirms that the site is not known to contain Aboriginal objects; there are no Aboriginal objects that have been identified within the site; and there are no areas of Aboriginal archaeological potential within the site. Accordingly, the proposed development is compliant with s 5.10 of the Precinct Plan.

35. Pursuant to Section 6.1 (Public utility infrastructure), development consent cannot be granted unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available and adequate arrangements have been made to make that infrastructure available when required. The parties agree, and I am satisfied that essential public utility infrastructure is available at the site, with the exception of sewage infrastructure. However, Sydney Water has confirmed that the requisite supply of sewage infrastructure will become available in FY 2025/26 which is within the 5-year life of the development consent. In the meantime, the site will be serviced by temporary pump-out sewage system which the conditions of consent require be removed once the permanent sewage infrastructure is installed by Sydney Water. Based on the above, I am satisfied that that there are adequate arrangements in place for essential infrastructure when it is required, pursuant to s 6.1(1) of the Precinct Plan.

36. Section 6.3 (Development controls – existing native vegetation) applies to land within an existing native vegetation area as shown on the Native Vegetation Map in accordance with s 6.3(2). The site is not mapped as containing existing native vegetation pursuant to the Native Vegetation Map. However, existing native vegetation is contained in the northern adjoining land, zoned C2 as shown on the Native Vegetation Protection Map. The amended DA ensures the retention of trees along this northern boundary with the adjacent land zoned C2 and has increased the setback to the C2 zoned land. In addition, the Applicant’s Flora and Fauna Assessment prepared by Cumberland Ecology concludes that the proposed development will not result in any significant impacts within the adjacent C2 zoned land. Accordingly, the parties agree and I am satisfied that the proposed development complies with s 6.3 of the Precinct Plan.

Section 4.15 of the EPA Act

37. Based on the Statement of Environmental Effects, various expert reports accompanying the DA and the recommended conditions of consent in Annexure A, the parties agree and I am satisfied that the DA can be approved taking into consideration the matters in s 4.15(1) of the EPA Act, including in regard to the likely impacts of the development, the suitability of the site and the public interest.

Conclusion

38. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

39. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

40. 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.

Orders

41. The Court orders:

1. The appeal is upheld.

2. Development Application DA-799/2019 for the subdivision of an existing allotment into a Torrens Title subdivision of 39 residential lots, including demolition of existing structures and vegetation removal, site remediation, and construction of roads, and associated civil works over 3 stages, at 1 Kelly Street Austral, is determined by the grant of consent, subject to the conditions contained in Annexure A.

M Young

Acting Commissioner of the Court

Annexure A

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Decision last updated: 15 January 2025