Nguyen v Liverpool City Council

[2024] NSWLEC 1249

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nguyen v Liverpool City Council [2024] NSWLEC 1249

Hearing dates:

Conciliation Conference on 29 April 2024

Date of orders:

15 May 2024

Decision date:

15 May 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application No. DA-1444/2021 for the construction of a detached double carport and the conversion and use of part of the existing double garage as a habitable space on the land at 75 Taubman Drive, Horningsea Park 2171 legally known as Lot 584 in Deposited Plan 1009062 subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, subs 7(1)

Land and Environment Court Act 1979, ss 34, 34AA, 39

Environmental Planning and Assessment Regulation 2021, s 38

Liverpool Local Environmental Plan 2008, cll 2.2, 2.3, 4.3, 4.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 11

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

Texts Cited:

Liverpool Community Participation Plan 2019

Liverpool Development Control Plan 2008

Category:

Principal judgment

Parties:

Tien Kieu Thi Nguyen (Applicant)
Liverpool Council (Respondent)

Representation:

Counsel:
Tien Kieu Thi Nguyen (Self-Represented) (Applicant)
A Jucha (Solicitor) (Respondent)

Solicitor:
Liverpool City Council (Respondent)

File Number(s):

2023/325021

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Liverpool City Council of development application DA-1444/2021 (the DA) for the construction of a detached double carport, and the conversion and use of part of the existing double garage as habitable space (bedroom), on the land at 75 Taubman Drive, Horningsea Park.

2. The Respondent advised that on 2 October 2020, it issued a Demolish Works Order, Restore Works Order and Stop Use Order for the development which had been carried out on the site without planning consent. The DA was subsequently lodged with the Respondent on 13 December 2021. On 14 April 2023 the DA was determined by way of refusal by the Respondent.

3. The Court arranged a conciliation conference under subs 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 April 2024. I presided over the conciliation conference. The site view was vacated as the parties had reached agreement on amendments to the DA. The Respondent confirmed that there were no objectors to the proposed development.

4. Prior to the conciliation conference, the parties advised that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed s 34 agreement with Annexure A (Conditions of Consent), was filed with the Court on 29 April 2024. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites. An amended jurisdictional statement was filed with the Court on 30 April 2024.

5. Accordingly, the hearing was adjourned and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions.

6. The parties advise that the DA seeks consent for:

1. Construction of a detached double carport; and

2. Conversion and use of part of the existing double garage as habitable space (bedroom).

7. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 2 November 2023. Amended plans and additional supporting information (including a detailed stormwater plan) were submitted by the Applicant to the Respondent on 5 April 2024.

8. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent in relation to the management of stormwater.

9. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

10. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

11. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Owner’s consent

12. Owner’s consent was provided by the Applicant (who is the landowner) in the lodgement of the DA.

13. The Respondent advised that owner’s consent from the owner of the adjoining Lot 583 DP 1009062 is not required as the Swept Path Analysis plan dated 17 April 2024 (as submitted by the Applicant) shows that the proposed development will not impact on the easement benefitting the site. This resolved one of the main contentions raised by the Respondent.

Community Participation (Sch 1, Div 2, subs 7(1) EPA Act)

14. The Respondent advises that the DA was not required to be notified by the Liverpool Community Participation Plan 2019.

Conditions

15. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act.

Liverpool Local Environmental Plan 2008

16. The Liverpool Local Environmental Plan 2008 (the LEP) applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R2 Low Density Residential pursuant to cl 2.2 of the LEP; and

1. There is an existing dwelling house on the site. Pursuant to cl 2.3 of the LEP, the proposed use of the former garage to this dwelling as a habitable space is permitted with consent in the R2 zone;

2. The proposed carport is an outbuilding and ancillary to the dwelling house and permitted with consent pursuant to cl 2.3 of the LEP;

3. The parties submit that the proposed development meets the objective of the R2 zone “to provide for the housing needs of the community within a low density residential environment”; and

4. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

17. Pursuant to cl 4.3 of the LEP, the maximum height of buildings on the site is 8.5m; and

1. the parties advise that the proposed carport height is 2.4m which complies with cl 4.3.

18. Pursuant to cl 4.4 of the LEP, the maximum floor space ratio (FSR) for the site is 0.6:1; and

1. The parties advise that the proposed development has a FSR of 0.28:1 which complies with cl 4.4.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the site as it is located within the catchment of the Georges River. Repealed Ch 11 of the Biodiversity SEPP applies to the site (as it was in force at the time the DA was lodged); and

1. The parties advise that the proposed Floor Plan and Stormwater Plan dated 5 April 2024 as submitted by the Applicant avoids any adverse effects on the Georges River catchment caused by stormwater run-off.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

20. The parties submit that in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the proposed development is not a BASIX development under the Environmental Planning and Assessment Regulation 2021 because the estimated development cost is less than $50,000, and no BASIX certificate is required.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and

1. The parties advise that having regard to the historic use of the site for residential purposes, they are satisfied that the site is not contaminated and that the proposed development will not involve any excavation or disturbance of soil on the site; and

2. the Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

Liverpool Development Control Plan 2008

22. The parties advise that the provisions of the Liverpool Development Control Plan 2008 (the DCP) that are of relevance have been taken into account in the additional information provided with the amended DA, and all contentions raised by the Respondent relating to the DCP have been resolved.

Conclusion

23. Having considered the advice of the parties provided above at [Error! Reference source not found.2]-[Error! Reference source not found.], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied;

3. approval of the proposed development is in the public interest.

24. Further, 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.

25. 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.

26. The Court notes:

1. that Liverpool City Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA-1444/2021 made on 29 April 2024 to rely on the documents specified below:

Plan Name	Reference	Plan No.	Date	Revision	Prepared By
Existing Site Plan and Site Analysis	Project No: IB-21-199	EX 01	18.06.2021	-	Condor Designs Pty Ltd
Existing Floor Plan	Project No: IB-21-199	EX 02	10.03.2024	A+	Condor Designs Pty Ltd
Proposed Site Plan & Deep Soil Calcs.	Project No: IB-21-199	L-01.1 (C)	5.4.2024	C	Condor Designs Pty Ltd
Proposed Floor Plan & Stormwater Plan	Project No: IB-21-199	DA 02 (E)	5.4.2024	E	Condor Designs Pty Ltd
Proposed Elevations	Project No: IB-21-199	DA 03	07.09.2023	D	Condor Designs Pty Ltd
Survey Plan (Details and Levels)	220168.DWG	220168.DWG	15.04.2022	-	John McDonald Group
Driveway Plan – General Notes	JB349	DR00	26.03.2024	B	Exact Engineers
Driveway Plan – Swept Path Analysis	JB349	DR01	26.03.2024	B	Exact Engineers
Driveway Plan – Swept Path Analysis	JB349	DR03	17.04.2024	C	Exact Engineers
Driveway Plan – Swept Path Analysis	JB349	DR02	26.03.2024	B	Exact Engineers
Stormwater Plan – General Notes	JB349	SW00	26.02.2024	A	Exact Engineers
Stormwater Plan – Stormwater Plan	JB349	SW01	26.02.2024	A+	Exact Engineers
Stormwater Plan – Stormwater Details	JB349	SW02	26.02.2024	A	Exact Engineers

2. The amended DA was filed with the Court on 29 April 2024.

3. The development is not a BASIX development under the Environmental Planning and Assessment Regulation 2021 because the estimated development cost is less than $50,000 and no BASIX certificate is required.

27. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No. DA-1444/2021 for the construction of a detached double carport and the conversion and use of part of the existing double garage as a habitable space on the land at 75 Taubman Drive, Horningsea Park 2171 legally known as Lot 584 in Deposited Plan 1009062 subject to the conditions of consent in Annexure A.

……………………….

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 15 May 2024