Modern Design Wardrobes Pty Ltd v Liverpool City Council

[2022] NSWLEC 1732

Land and Environment Court

New South Wales

Medium Neutral Citation:

Modern Design Wardrobes Pty Ltd v Liverpool City Council [2022] NSWLEC 1732

Hearing dates:

Conciliation conference on 5 December 2022

Date of orders:

23 December 2022

Decision date:

23 December 2022

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as agreed in the amount of $3000.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA-500/2022 for the demolition of existing structures and the construction of a four storey above basement car park industrial warehouse building to be used as a general industry containing an industrial activity for the purpose of wardrobe and cabinet manufacturer at 11 Iraking Avenue, Moorebank, legally described as Lot 8 DP 223384 subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – industrial warehouse – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021 s 38

Land and Environment Court Act 1979 s 34

Liverpool Local Environmental Plan 2008 cll 4.3, 5.21, 7.7

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

State Environmental Planning Policy (Transport and Infrastructure) 2021 s 2.48

State Environmental Planning Policy (Industry and Employment) 2021 Sch 5

Water Management Act 2000 s 90

Category:

Principal judgment

Parties:

Modern Design Wardrobes Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
S Kondilios (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Hall and Wilcox (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2022/238853

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings have arisen as a result of Liverpool City Council’s deemed refusal of Development Application No. DA-500/2022, lodged 27 April 2022. This development application seeks consent for the demolition of existing structures and the construction of a 4 storey industrial warehouse building to be used for the purpose of wardrobe and cabinet manufacturing at Lot 8 in Deposited Plan 223384, 11 Iraking Avenue Moorebank.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 December 2022. I presided over the conciliation conference.

4. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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 one 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.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how these have been satisfied. From this I note the following:

1. Owner’s consent has been given, as per the DA form filed with the Class 1 Application.

2. The Site is zoned IN1 – General Industry under the Liverpool Local Environmental Plan 2008 (LLEP). Development for the purposes of general industry is permitted with consent in this zone. Further, the parties submit and I accept that the relevant objectives of this zone are met with the proposed development.

3. The proposed building has a maximum height of 25m, which is below the 30m height limit established under LLEP cl 4.3.

4. Pursuant to LLEP cl 5.21, the Site is impacted by flooding from Anzac Creek and is within both high and medium risk flood zones. The parties submit and I accept that the Amended Flood Risk Management Report prepared by Kozarovski and Partners dated 9 October 2022 demonstrates the requirements of this clause have been met.

5. Pursuant to LLEP cl 7.7, the site is affected by Class 5 Acid Sulfate Soils as shown on the Acid Sulfate Soils Map (Sheet ASS_014). The parties submit and I accept that, based on the Targeted Environmental Site Assessment prepared by Integral Environmental Solutions, the potential for significant contamination of underlying natural soils onsite is low.

6. Pursuant to the requirements of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, the parties submit and I accept that, based on the implementation of the recommendations made in the Targeted Environmental Site Assessment prepared by Integral Environmental Solutions as part of the Class 1 Application, the requirements of this SEPP are met with this development application and the site is suitable for its intended use.

7. Section 2.48 in Ch 2 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 identifies triggers which require the local electricity supply authority to be given written evidence of a development application. The parties submit and I accept that Endeavor Energy was notified of the Development Application and this requirement is subsequently satisfied.

8. The parties submit and I accept that the requirements of Sch 5 of the State Environmental Planning Policy (Industry and Employment) 2021 have been satisfactorily considered and addressed in this development application.

9. Pursuant to s 90(2) of the Water Management Act 2000, a water supply work approval is required. On 25 August 2022, WaterNSW wrote to the Council advising that for the purposes of the Water Management Act 2000, no further investigation is required by WaterNSW.

10. The development application was duly notified by the Respondent, as required.

7. For these reasons, 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.

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’ decision.

9. The Court notes that:

1. Liverpool City Council, as the relevant consent authority, has approved, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA-500/2022 to rely on the following plans and documents:

Schedule Document Title	Schedule Ref.	Schedule Date	Schedule Prepared by
Site Analysis Plan	Drawing no. 01, Rev 3	Oct 2022	Derek Raithby Architecture
Ground Floor Plan	Drawing no. 02, Rev 4	Oct 2022	Derek Raithby Architecture
First Floor Plan	Drawing no. 03, Rev 4	Oct 2022	Derek Raithby Architecture
Second Floor Plan	Drawing no. 04, Rev 5	Oct 2022	Derek Raithby Architecture
Third Floor Plan	Drawing no. 05, Rev 4	Oct 2022	Derek Raithby Architecture
Roof Plan	Drawing no. 06, Rev 4	Oct 2022	Derek Raithby Architecture
Elevations	Drawing no. 07, Rev 5	Oct 2022	Derek Raithby Architecture
Sections	Drawing no. 08, Rev 5	Oct 2022	Derek Raithby Architecture
GFA Calculation	Drawing no. 09, Rev 4	Oct 2022	Derek Raithby Architecture
Calculation Landscaping & Site Coverage	Drawing no. 10, Rev 3	Oct 2022	Derek Raithby Architecture
Finishes Schedule	Drawing no. 14, Rev 3	Oct 2022	Derek Raithby Architecture
Streetscape Elevations	Drawing no. 15, Rev 4	Oct 2022	Derek Raithby Architecture
Demolition and Site Management Plan	Drawing no. 16, Rev 2	Oct 2022	Derek Raithby Architecture
Waste Management Plan	Drawing no. 17, Rev 2	Oct 2022	Derek Raithby Architecture
Signage Detail	Drawing no. 18, Rev 2	Oct 2022	Derek Raithby Architecture
Stormwater Drainage Plan for Proposed Development At No. 11 Iraking Avenue, Moorebank Underfloor	Drawing no. C-3704-01, Issue 4	9 October 2022	Pavel Kozarovski
Stormwater Drainage Plan for Proposed Development At No. 11 Iraking Avenue, Moorebank Ground Floor	Drawing no. C-3704-02, Issue 4	9 October 2022	Pavel Kozarovski
Site Plan	DWG.NO: LPDA 22 - 325/ 1, Revision B	10.10.2022	Conzept Landscape Architects
Landscape Plan	DWG.NO: LPDA 22 - 325/ 2, Revision B	10.10.2022	Conzept Landscape Architects
Details	DWG.NO: LPDA 22 - 325/ 3, Revision B	10.10.2022	Conzept Landscape Architects
Specification	DWG.NO: LPDA 22 - 325/ 4, Revision B	10.10.2022	Conzept Landscape Architects

2. The Applicant uploaded the documents set out in paragraph [9](1)above onto the NSW Planning Portal on 18 December 2022.

10. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as agreed in the amount of $3000.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development consent is granted to development application DA-500/2022 for the demolition of existing structures and the construction of a four storey above basement car park industrial warehouse building to be used as a general industry containing an industrial activity for the purpose of wardrobe and cabinet manufacturer at 11 Iraking Avenue, Moorebank, legally described as Lot 8 DP 223384 subject to the conditions in Annexure A.

E Washington

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 23 December 2022