MH Affordable Homes Pty Ltd v Liverpool City Council

[2020] NSWLEC 1106

Land and Environment Court

New South Wales

Medium Neutral Citation:	MH Affordable Homes Pty Ltd v Liverpool City Council [2020] NSWLEC 1106
Hearing dates:	Conciliation conference held on 28 February 2020
Date of orders:	10 March 2020
Decision date:	10 March 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1)   The Applicant is granted leave to amend the application to rely on the amended plans and documents listed in condition 1 of the conditions of consent at Annexure A. (2)    The appeal is upheld. (3)   Development Application No. 731/2018 for the demolition of existing structures and the Torrens Title subdivision of two existing lots to create sixty-nine residential lots over four stages (as described in the conditions of consent at Annexure A) with associated site remediation, bulk earthworks, drainage, road and civil works is approved, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – Torrens title subdivision of two lots into sixty-nine residential lots over four stages – conciliation conference – agreement between the parties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Sydney Regional Growth Centres) 2006
Category:	Principal judgment
Parties:	MH Affordable Homes Pty Ltd (Applicant) Liverpool City Council (Respondent)
Representation:	Counsel: P Lennon (Solicitor) (Applicant) M Knight (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Liverpool City Council (Respondent)
File Number(s):	2019/97379
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 731/2018 for the demolition of existing structures and the Torrens Title subdivision of two existing lots to create sixty-nine residential lots over four stages with associated site remediation, bulk earthworks, drainage, road and civil works for (the proposal) at 105-110 Burner Avenue Austral (Lot 111 and 112 in DP 101191) (the site) by Liverpool City Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 February 2019. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

6. The site, with an area of 3.958 ha, is zoned R2 Low Density Residential pursuant to the provisions of the State Environmental Planning Policy (Sydney Regional Growth Centres) 2006 and the proposal is permissible with consent pursuant to cl 2.6 of Appendix 8.

7. The amended civil engineering plans demonstrate that the drainage structure is within the site and does not relate to adjoining land.

8. The Aboriginal Due Diligence Report provided to the respondent in response to the contentions raised demonstrates that the development meets the relevant objectives and controls with respect to Aboriginal cultural heritage.

9. The Odour Impact Assessment provided to the Respondent in response to the contentions demonstrates that the proposed development will not be affected by unacceptable odour impacts.

Orders

10. The orders of the Court are:

1. The Applicant is granted leave to amend the application to rely on the amended plans and documents listed in condition 1 of the conditions of consent at Annexure A.

2. The appeal is upheld.

3. Development Application No. 731/2018 for the demolition of existing structures and the Torrens Title subdivision of two existing lots to create sixty-nine residential lots over four stages (as described in the conditions of consent at Annexure A) with associated site remediation, bulk earthworks, drainage, road and civil works is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (1.57 MB, pdf)

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Decision last updated: 10 March 2020