MH Affordable Homes on Kelly Pty Ltd v Liverpool City Council

[2024] NSWLEC 1275

Land and Environment Court

New South Wales

Medium Neutral Citation:

MH Affordable Homes on Kelly Pty Ltd v Liverpool City Council [2024] NSWLEC 1275

Hearing dates:

Conciliation conference on 3 May 2024

Date of orders:

28 May 2024

Decision date:

28 May 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application 1483/2021 to rely on the documents specified in Annexure A.

(2) The appeal is upheld.

(3) Consent is granted to development application 1483/2021 for the demolition of existing structures, trees and vegetation and staged subdivision of Lot 9 DP 2756, being 95 Boyd Street, Austral into 84 Torrens title lots, with associated road, civil and stormwater works, subject to the conditions contained in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – demolition and subdivision – amended plans and additional information – agreement between the parties – orders made.

Legislation Cited:

Biodiversity Conservation Act 2016, Part 8

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000, cl 49

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4 cl 2.6, 4.1, 4.1AB, 5.10, 6.1

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

Texts Cited:

Liverpool City Council Grown Centres Precinct Development Control Plan 2021

Category:

Principal judgment

Parties:

MH Affordable Homes on Kelly Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Harker (Applicant)
A Jucha (Respondent)

Solicitors:
The Law Offices of Professor Dion Accoto (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2023/364241

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) against the actual refusal of development application DA1483/2021. The development application, as amended, seeks development consent for the Torrens Title subdivision of one lot, at 95 Boyd Street, Austral, into 84 lots and associated civil works.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) on 18 March 2024. The conciliation conference was adjourned to allow the parties to continue discussions, but was ultimately terminated on 10 April 2024.

3. The parties have continued discussions and have reached an agreement as to the resolution of the proceedings. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions. On 24 April 2024 the parties advised the Court of their agreement, and the proceedings were listed for a further conciliation conference. I presided over the further conciliation conference.

4. 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). I form this state of satisfaction on the basis that:

1. The land that is the subject of the development application is owned by the Applicant, MH Affordable Homes: cl 49 Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

2. The land is zoned R2 Low Density Residential under State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4, Liverpool Growth Centres Precinct Plan (Precinct Plan). Development for residential purposes are permitted with consent in the R2 Low Density Residential zone. Pursuant to cl 2.6 of the Precinct Plan, the land may be subdivided with consent. In determining the development application, I have given consideration to the zone objectives which are:

To provide for the housing needs of the community within a low-density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

To support the well-being of the community by enabling education, recreational community, religious and other activities where compatible with the amenity of a low-density residential environment.

3. Section 2.6 of the Precinct Plan permits land to be subdivided with development consent. The development application, as amended, seeks consent for the staged subdivision of the Site.

4. Further, s 2.7 of the Precinct Plan permits the demolition of a building or a work but only with development consent. The development application, as amended, seeks consent for the demolition of existing structures on the Site.

5. The site is not mapped as having a minimum lot size pursuant to cl 4.1 of the Precinct Plan. However, it is shown on the Residential Density Map as having a minimum dwelling density of 15 dwellings per hectare. Whilst the development is for subdivision simpliciter, the number of lots proposed for the area of the subject site, if each are developed for a single dwelling, will result in a dwelling density higher than the minimum density sought by the clause.

6. Pursuant to cl 4.1AB(3)(b), the minimum lot size for dwelling houses on such land is 300m². I am satisfied by reference to the plans that each of the proposed lots have an area greater than 300m².

7. To ensure that there is no breach of cl 5.10 of the Precinct Plan concerning Aboriginal objects or Aboriginal places of heritage significance, the Applicant has carried out an Aboriginal Due Diligence Assessment that confirms that no Aboriginal objects or Aboriginal places of heritage significance were identified, there is no sub-surface archaeological potential and no further assessment is required before commencement of the works. In determining the development application, I have given consideration to the potential impact of the proposed development on any Aboriginal object, Aboriginal place of heritage significance or archaeological site. On the basis of the information provided in support of the development application and the annexed conditions, I am satisfied that the likelihood of any detrimental impact on such heritage is acceptable.

8. Pursuant to cl 6.1 of the Precinct Plan states that the consent authority must not grant development consent to development on land to which the Precinct Plan applies unless it is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required. Public utility infrastructure is defined to include infrastructure for the supply of water, supply of electricity, and the disposal and management of sewage. The development application includes An Essential Services Report by Craig & Rhodes dated November 2021. Having reviewed that report I am satisfied that it sets out the necessary construction of a water main extension to service lots other than 188 to 197. Further, it confirms that 90% of all lots fall within the initial wastewater servicing area for Austral. The report annexes correspondence from Sydney Water to the effect that the remaining lots may be catered for subject to the provision of a detailed design that meets Sydney Water’s standards. That will be dealt with as part of the compliance certificate issued under s 73 of the Sydney Water Act 1994. Finally, following consultation with Endeavor Energy, two pad-mount substations are required for electricity supply; an electrical consultant is to be engaged to provide relevant design at the detailed design (pre-subdivision works certificate) stage. The locations of the substations are limited by condition. In light of the above, I am satisfied that adequate arrangements are in place to make necessary infrastructure available to each of the lots.

9. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. Whilst the development application is for subdivision simplicity and not a residential use, the development application is accompanied by a contamination report. After a detailed site investigation, the report concludes that subject to appropriate site remediation and a remediation action plan (RAP), the site will be suitable for future residential development. In addition to the contamination report, the development application includes a RAP for the site.

10. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use for residential purposes. The development application does not propose a change of use. The parties agree and I accept, on the details in Statement of Environmental Effects accompanying the development application, that s 4.6 of SEPP RH is satisfied.

11. The proposed development includes the clearing of vegetation. I am satisfied that the site is in an area that is mapped as being the subject of a Biodiversity Certification Order under Part 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 does not apply to the site.

12. Liverpool City Council Grown Centres Precinct Development Control Plan 2021 (DCP 2021) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2021. In determining the development application, I have considered the provisions of the development control plan s 4.15(1) of the EPA Act.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. 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. Further, 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.

7. The Court orders that:

1. The Applicant is granted leave to amend the development application 1483/2021 to rely on the documents specified in Annexure A.

2. The appeal is upheld.

3. Consent is granted to development application 1483/2021 for the demolition of existing structures, trees and vegetation and staged subdivision of Lot 9 DP 2756, being 95 Boyd Street, Austral into 84 Torrens title lots, with associated road, civil and stormwater works, subject to the conditions contained in Annexure B.

D Dickson

Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 28 May 2024