Naamo v Liverpool City Council

[2024] NSWLEC 1435

Land and Environment Court

New South Wales

Medium Neutral Citation:

Naamo v Liverpool City Council [2024] NSWLEC 1435

Hearing dates:

Conciliation conference 1 February, 12 July 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No DA-623/2022 for demolition of existing structures and the construction of three dwellings with strata subdivision at 1 Bundemar Street, Miller is determined by the grant of consent, subject to the conditions in Annexure A.

(3) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to DA‑623/2022 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $6000 within 28 days.

Catchwords:

DEVELOPMENT APPLICATION –­­ new multi dwelling housing development – conciliation conference – amended plans – agreement reached between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 

Land and Environment Court Act 1979, s 34

Strata Schemes Development Act 2015

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Liverpool Local Environmental Plan 2008, cll 2.3, 4.1, 4.3, 4.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 11.6, 11.7, 11.8, Ch 11

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

Texts Cited:

Liverpool Development Control Plan 2008

Category:

Principal judgment

Parties:

Rawnivr Naamo (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
A Foley (Solicitor) (Respondent)

Solicitors:
Storey & Gough (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/224935

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Rawnivr Naamo (Applicant) against the actual refusal of development application DA‑623/2022. As amended the development application seeks consent for demolition of existing structures and the construction of a multi dwelling development with strata subdivision. The development is proposed 1 Bundemar Street, Miller and is legally described Lot 204 in DP 222376 (Site).

2. A conciliation conference was held between the parties on 1 February 2024 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was adjourned to allow ongoing discussions between the parties, but the conciliation was ultimately terminated on 1 February 2024. The parties have continued without prejudice discussions and have reached an agreement as to the resolution of the contentions in the proceedings. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions. The parties advised the Court of their agreement, and the proceedings were listed for a further conciliation conference on 12 July 2024. I presided over the further conciliation conference.

3. As part of the parties agreement, the development application is to be amended with the Respondent's agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). Those amendments are detailed in amended architectural plans, stormwater plans, and landscape plans. Further, the development application has been supplemented by a preliminary site investigation report, a detailed site investigation and a remedial action plan, and arboriculture report and confirmation of land owners consent. The amendments resolve the contentions between the parties.

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 development application is accompanied by the consent of the owners of the land on which the development is proposed. Further, the development application proposes the construction of driveways and the removal of a street tree. The Respondent provides consent for those works on public land.

2. The development application was publicly notified between 1 -16 August 2022. No public submissions were received.

3. The works the subject of the development application are ‘BASIX affected development’. The development application includes a BASIX Certificate satisfying the requirement in s 27 of the EPA Regulation as it has been issued no earlier than 3 months before the date on which the Development Application was made.

4. Pursuant to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) the site is within the Georges River Catchment. Chapter 11 of SEPP BC applies to the development application as it was lodged, but not finally determined, before 21 November 2022. Sections 11.6 and 11.7 of the SEPP BC provides planning principles which must be taken into account in the assessment of an application to which the part applies.

5. The parties agree, and I accept, that the proposed development is satisfactory when considered against the planning principles in Chapter 11 of SEPP BC as outlined in the table below:

6. The development is housing development for the purposes of the planning control table in s 11.8 of SEPP BC and is permissible with development consent on land included in the Urban Development Program (except where not connected to reticulated sewerage or on flood liable land). The site is connected to reticulated sewerage and is not flood liable land, and accordingly the development is permissible with consent for the purposes of the SEPP BC.

7. The specific matters for consideration in the planning control table contained in s 11.8(4) – 7 of SEPP BC have been addressed in the commentary in the table above.

8. The development also involves stormwater management systems or works as defined in s 11.8(4) – 20 of SEPP BC, which are permissible with consent as they will not dispose of untreated stormwater into the Georges River and its tributaries. As noted above, the parties agree, and I accept, the proposed stormwater system has been assessed to be satisfactory subject to conditions of consent and the specific matters for consideration are considered to have been addressed.

9. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires the consent authority to consider whether land is contaminated, and if contaminated, it is to be satisfied that the land is suitable for the purpose proposed. The development application, as amended, is supported by the following documents:

1. Stage 1 Preliminary Site Investigation, prepared by NEO Consulting.

2. Stage 2 Detailed Site Investigation, prepared by NEO Consulting, and

3. Remedial Action Plan, prepared by NEO Consulting.

10. The above documents investigate the contamination status of the Site, and identify suitable remediation works to be implemented to address any areas of environmental concern identified. These documents confirm that the development, following the carrying out of the required remediation, will be suitable for the proposed multi dwelling housing development. I have considered the contamination status of the Site and conclude on the basis of the preceding that the Site can be made suitable for the proposed development in accordance with s 4.6 of SEPP RH.

11. Pursuant to Liverpool Local Environmental Plan 2008 (LEP 2008) the site is located in the ‘R4 – High Density Residential’ zone. The proposal is consistent with the definition of ‘multi dwelling housing’ a permissible category of development with consent in the R4 zone. The objectives of the R4 zone have been considered as required by cl 2.3(2) of the LEP 2008 and the development is considered to be consistent with the objectives.

12. Relevant to this development application the minimum subdivision lot size in cl 4.1(4)(a) of LEP 2008 does not apply in relation to the subdivision of any land by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015.

13. Pursuant to cl 4.3 of LEP 2008 a maximum height standard of 15m applies to building on the land. The proposed development complies with this development standard.

14. Pursuant to cl. 4.4 of LEP 2008 and the relevant floor space (FSR) ratio map, a maximum FSR of 1:1 applies to the site or a total gross floor area (GFA) of 616.2m². The proposed development has an GFA of 284.94m², equating to an FSR of 0.462:1 in compliance with this development standard.

15. Liverpool Development Control Plan 2008 (DCP 2008) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2008. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

5. The Court notes that Liverpool City Council, as the relevant consent authority, has, under s 38 of the EPA Regulation, consented to the Applicant amending DA-632/2022 to rely on the documents and drawings listed below:

Plan number	Revision Number	Plan Title	Drawn by	Date of plan
A01	H	Site/Analysis Plan	Dvyne Design	July 2024
A02	H	Floor Plans/Sections	Dvyne Design	July 2024
A03	H	Elevations/Streetscapes	Dvyne Design	July 2024
A04	H	Roof/Fence/BASIX/GFA	Dvyne Design	July 2024
A05	H	Strata Plans	Dvyne Design	July 2024
A06	H	Demolition Plan	Dvyne Design	July 2024
A08	G	9am Shadow	Dvyne Design	July 2024
A09	G	10am Shadow	Dvyne Design	July 2024
A10	G	11am Shadow	Dvyne Design	July 2024
A11	G	12am Shadow	Dvyne Design	July 2024
A12	G	1pm Shadow	Dvyne Design	July 2024
A13	G	2pm Shadow	Dvyne Design	July 2024
A14	G	3pm Shadow	Dvyne Design	July 2024
A15	G	4pm Shadow	Dvyne Design	July 2024
A16	H	Landscape Plan	Dvyne Design	July 2024
000	B	Cover Sheet	Telford Civil	21 June 2024
101	B	Stormwater Concept Plan	Telford Civil	21 June 2024
102	B	Combined OSD/BASIX Catchment Plan	Telford Civil	21 June 2024
103	B	On-site Detention Details and Calculation Sheet 1 of 2	Telford Civil	21 June 2024
104	B	On-site Detention Details and Calculation Sheet 2 of 2	Telford Civil	21 June 2024
105	B	Miscellaneous Details Sheet	Telford Civil	21 June 2024
1/3	-	Subdivision of Lot 204 in DP222376 – Location Plan	Timothy John Sigley	5 July 2024
2/3	-	Subdivision of Lot 204 in DP222376 – Ground Floor Plan	Timothy John Sigley	5 July 2024
3/3	-	Subdivision of Lot 204 in DP222376 – First Floor Plan	Timothy John Sigley	5 July 2024

Document title	Version number	Prepared by	Date of document
Arboricultural Impact Assessment and Tree Management Plan	1	Arboriculture Australia	8 February 2024
BASIX Certificate No. 1304859M_02	-	Ecoplus Consultants Pty Ltd	3 July 2024
Detailed site investigation	001	Neo Consulting	15 February 2024
Remedial Action Plan N09270 Rony Shaoo Proposed Development at: 1 Bundemar Street, Miller NSW 2168	Final	Neo Consulting	3 May 2024
Owners Consent form	Rawnivr Namoo	4 July 2024

6. The Court orders that:

1. The appeal is upheld.

2. Development Application No DA-623/2022 for demolition of existing structures and the construction of three dwellings with strata subdivision at 1 Bundemar Street, Miller is determined by the grant of consent, subject to the conditions in Annexure A.

3. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to DA-623/2022 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $6000 within 28 days.

D Dickson

Commissioner of the Court

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Annexure A

Decision last updated: 26 July 2024