McLeod v Liverpool City Council

[2023] NSWLEC 1230

Land and Environment Court

New South Wales

Medium Neutral Citation:

McLeod v Liverpool City Council [2023] NSWLEC 1230

Hearing dates:

Conciliation conference on 14 March 2023

Date of orders:

16 May 2023

Decision date:

16 May 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders:

(1) The Applicant to pay the Respondent’s costs thrown away as a result of the amendments made as agreed or assessed, in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is upheld.

(3) Development Application No. DA-817/2021 for demolition of the existing structures and Torrens Title subdivision to create 36 residential lots with integrated housing comprising a mix of detached and semi-attached dwellings, associated road construction, landscaping and civil works at 171-175 Fourteenth Avenue, Austral is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – integrated housing – subdivision – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 8cl 2.6(2)

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ChH 2, sscl 2.6, 2.10.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Appendix 4, sscll 2.3, 4.1AF, 5.9, 5.10, 6.1.

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

State Environmental Planning Policy Amendment (Water Catchments) 2022

Water Management Act 2000.

Category:

Principal judgment

Parties:

Alexander Daniel McLeod (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor)(Applicant)
C Campbell (Solicitor)(Respondent)

Solicitors:
Mills Oakley (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2022/302198

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) by Alexander Daniel McLeod (the Applicant) against the Liverpool City Council’s (the Respondent’s) deemed refusal of Development Application number DA-817/2021.

2. The Development Application seeks consent for the demolition of existing structures and Torrens title subdivision to create 36 residential lots with integrated housing comprising a mix of detached, semi-detached, and attached dwellings, including 12 dwellings with studios, together with associated road construction, landscaping and civil works, over five stages, on land identified as Lot 495 DP 2475, commonly known as 171-175 Fourteenth Avenue, Austral (the Site).

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). The conciliation process commenced on 14 March 2023.

4. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable. The parties’ agreement was to seek orders granting Development Consent to the Development Application, subject to conditions.

5. 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 of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. 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.

7. State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (Precincts WP SEPP) applies to the Site. There are a number of matters in Appendix 4 - Liverpool Growth Centres Precinct Plan (Precinct Plan), of the Precincts WP SEPP, which are relevant to this matter, and these have been considered as follows:

1. Section 2.3, the Site is zoned R3 Medium Density Residential as shown on the Land Zoning Map. The parties agree that proposed development is consistent with the objectives of the R3 Medium Density Residential Zone, as established by the Land Use Table, specifically to provide for the housing needs of the community within a medium density residential environment.

2. The parties have outlined the application of various clauses pertaining to allotment size. The parties agree that the proposed development does not breach any of the applicable development standards pursuant to the Precinct Plan concerning minimum subdivision lot size and density. The proposed development complies with the relevant criteria established under s 4.1AF, for exemptions in respect to this application, and accordingly, development consent may be granted to Lots 5, 14, 23 and 32 under s 4.1AF.

3. Section 5.9, the proposed development seeks to remove 13 trees on the Site. The removal of these trees has been assessed by the Arboricultural Impact Assessment prepared by Horticultural Management Services dated 8 June 2021 and Supplementary Assessment dated 5 April 2023. These documents provided the basis for an agreement by the parties in that the tree removal is acceptable.

4. Section 5.10, is located within an area of Moderate Archaeological Potential. The Applicant has carried out an Aboriginal Cultural Heritage Due Diligence Assessment prepared by Apex Archaeology dated June 2021 which concludes (at page 24) that no previously registered Aboriginal sites are located within the study area and as such, no further Aboriginal archaeological assessment is required prior to the commencement of works.

5. Section 6.1, 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 documents in support of the development application (as amended) demonstrate that infrastructure is available within the immediate vicinity to adequately service the area, and adequate arrangements have been made to ensure that the infrastructure will be available when required. Conditions of consent have been incorporated regarding the infrastructure pursuant to this provision.

6. On 16 March 2022, the application was advertised, with notice being given to the owners/occupiers of any properties considered to be potentially affected by the Development Application, in addition to the placement of a notification sign at the Site, and an advertisement being placed on Council’s website.

7. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The Applicant has prepared and submitted a number of reports relating to salinity and potential for contamination. The parties agree that these reports meet the requirements of the Resilience and Hazards SEPP. This report investigates the contamination status of the Site and concludes the Site is suitable for the proposed use, subject to the implementation of recommendations to be followed prior to demolition. Appropriate conditions have been included in Annexure A to this judgment requiring the implementation of the recommendations in the report.

8. The proposed development includes the clearing of vegetation. The parties have identified, and 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 (Biodiversity SEPP) does not apply to the Site.

9. Rural Fires Act 1997 (RF Act) - The Development Application is identified as ‘bushfire prone land’ and requires a bushfire safety authority under s 100B of RF Act from the NSW Rural Fire Services (NSW RFS). A Bushfire Assessment Report was prepared by Building Code & Bushfire Hazard Solutions dated 19 May 2021. In response to the documentation provided by the Applicant, the NSW RFS issued General Terms of Approval (GTAs) on 10 September 2022 which are addressed in Annexure A to this judgment.

10. Water Management Act 2000 - The Department of Planning and Environment provided a referral response to the Development Application which confirmed that a controlled activity approval is not required as the proposed works are not located on waterfront land as defined by the Water Management Act 2000. The parties agree that this deals with the contention relating to this issue.

11. Biodiversity SEPP – This policy applies to the Site, in particular, Ch2, s 2.10(3) of the Biodiversity SEPP relates to clearing vegetation in non-rural areas. The proposed development seeks to remove 13 trees on the Site. The removal of these trees has been assessed by the Arboricultural Impact Assessment prepared by Horticultural Management Services dated 8 June 2021 and Supplementary Assessment dated 5 April 2023. The parties are agreed that the removal of these trees is consistent with local planning objectives, having regard to the replacement planting as proposed in the landscaping strategy for the Site. the parties are agreed that the Court, as the consent authority, can be satisfied that the proposed development is consistent with Ch 2 of the Biodiversity SEPP. I am satisfied that the requirements of this policy have been met.

12. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

8. 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.

9. 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. 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.

10. The Court orders:

1. The Applicant to pay the Respondent’s costs thrown away as a result of the amendments made as agreed or assessed, in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development Application No. DA-817/2021 for demolition of the existing structures and Torrens title subdivision to create 36 residential lots with integrated housing comprising a mix of detached and semi-attached dwellings, associated road construction, landscaping and civil works at 171-175 Fourteenth Avenue, Austral is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

Stuart Harding

Acting Commissioner of the Court

Annexure A

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Decision last updated: 16 May 2023