MH Affordable Homes v Liverpool City Council

[2020] NSWLEC 1470

Land and Environment Court

New South Wales

Medium Neutral Citation:

MH Affordable Homes v Liverpool City Council [2020] NSWLEC 1470

Hearing dates:

Conciliation held on 1 September 2020

Date of orders:

7 October 2020

Decision date:

07 October 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

See orders at [16] below

Catchwords:

DEVELOPMENT APPLICATION – torrens title subdivision – remediation – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

State Environmental Planning Policy No 55 – Remediation of Land

Texts Cited:

Liverpool Growth Centre Precincts Development Control Plan

Category:

Principal judgment

Parties:

MH Affordable Homes (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
R O’Gorman-Hughes (Respondent)

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

File Number(s):

2019/204618

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the actual refusal of Development Application (DA) 940/2016 by Liverpool City Council (hereafter the Council) which, as amended seeks a 41 Torrens title lot subdivision with associated essential services, road and drainage works on Lot 1 DP 510228, also known as 404 Fourth Avenue, Austral (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to the parties’ request for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held before me on 1 September 2020 in Court, and adjourned until 1 October 2020, at the request of the parties to notify the amended DA and file the agreement. There were no (resident) objectors at the conciliation.

4. Based on the amended plans, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and resolved, and that there were no submissions by objectors from notification of the DA. The decision of the parties is to uphold the appeal and grant consent to DA 940/2016 with conditions.

5. 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 exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA 940/2016, with conditions described in Annexure A.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings for the Court’s consideration of s 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP Growth); State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55); and the Liverpool Growth Centre Precincts Development Control Plan (LCDCP).

7. The parties agree that the proposed subdivision complies with the provisions of SEPP 55, as contamination identified on the site in the detailed contamination investigation can be addressed by a Remedial Action Plan (RAP) to make the site suitable for the proposed subdivision. The RAP is agreed by the parties to satisfy the requirements of SEPP 55, together with the conditions of consent.

8. The Department of Primary Industries (Water) and New South Wales Office of Environment and Heritage were notified as the DA is considered integrated development, whom provided General Terms of Approval (GTA) for the proposed development. Conditions attached to their GTA’s are included in the conditions of consent and are also relevant to the provision of reports supporting the amended DA. Further to this, Sydney Water and Endeavour Energy on request, did not have any objection to the proposed development, subject to agreed conditions of consent.

9. The proposed development is located within the R2 Low Density Residential Zone and SP2 Infrastructure (Local Drainage), as identified in the SEPP Growth. The proposed subdivision is permissible and satisfies the objectives of the respective zone/s. The parties agree that the relevant provisions of the SEPP Growth are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The relevant contentions are resolved.

10. The parties agree that there are no unreasonable amenity impacts to adjoining properties or within the site as a result of the proposed subdivision. The odour impact assessment that supports the amended DA resolves the contention as raised, with regards to any potential amenity issues to the proposed subdivision from surrounding existing developments. The parties agree the site is suitable for the proposed development.

11. The parties agree that the DA was publicly notified in accordance with the LCDCP. During the notification period for this DA under appeal, no submissions in objection were received by Council.

12. The amended plans that relate to the proposed subdivision have been considered in the context of the site and surrounding area. Based on the amended plans and supporting documents to the DA, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties.

13. The parties advise the Court that they have undertaken the appropriate merit assessment of the amended DA, which resolve the contentions as raised.

14. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 940/2016 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

15. 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.

16. The Court orders that:

1. Leave is granted to the Applicant to rely upon the following amended plans:

Plan Name	Drawing number	Date	Revision	Prepared by
Subdivision Plan (Stage 1)	Project 190224 Dwg No. 1-1	17 September 2020	22	Planzone
Subdivision Plan (Stage 2)	Project 190224 Dwg No. 2-1	17 September 2020	22	Planzone
Public Domain Plan	Project 190224 Dwg No. 8	17 September 2020	22	Planzone
Civil Engineering Works Plans and Details (set)	Project No. 16-14 Plan No.000-801	11 September 2020	C	Orion Consulting
Architectural Plans and Details for Two Storey Dwelling House	Project No.1607 Sheet Number 01-15	1 September 2020	---	Visualised Concepts
BASIX Certificate	755285S_02	01 September 2020	---	Planzone

2. The parties agree that the amendments are minor for the purposes of s. 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Development Consent is granted to DA-940/2016 for the demolition of existing structures and subdivision of one existing allotment into a Torrens Title subdivision of 41 residential lots, including site remediation, road construction and stormwater works at 404 Fourth Avenue, Austral subject to conditions contained in Annexure ‘A’. The subdivision is to be staged as follows:

1	Torrens Title subdivision of One (1) Existing Allotment into a Torrens Title Subdivision of 39 Residential Lots and 2 Residue lots (Lot 26 & Lot 39) to accommodate the construction of two (2) temporary on-site detention basins (OSDs) servicing Stage 1. This stage includes demolition of existing structures, tree removal, site remediation, road construction and civil works.
1a	Construction of a detached two-storey single dwelling house on approved Lot 7.
2a	Decommissioning of the temporary OSD on Lot 26, and rehabilitation and development of that land for residential purposes.
2b	Decommissioning of the temporary OSD on Lot 39, and rehabilitation and development of that land for residential purposes.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (1858583, pdf)

Plans (8328376, pdf)

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Decision last updated: 07 October 2020