Okinawa Pty Ltd v Liverpool City Council

[2023] NSWLEC 1228

Land and Environment Court

New South Wales

Medium Neutral Citation:

Okinawa Pty Ltd v Liverpool City Council [2023] NSWLEC 1228

Hearing dates:

Conciliation conference on 17 March 2023, 5 April 2023 and 13 April 2023

Date of orders:

16 May 2023

Decision date:

16 May 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No DA 676/2022 seeking Development Consent for a multi dwelling housing development comprising seven dwellings with associated seven lot Strata Subdivision, civil works including bulk earthworks, construction of retaining walls, service connections and landscaping at Lot 635, DP1245754 Caldwell Avenue, Edmondson Park, is determined by the granting of Development Consent, subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing - amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 4.3, 4.4, 6.5, 7.31

Rural Fires Act 1997

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.120

Category:

Principal judgment

Parties:

Okinawa Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor)(Applicant)
C Campbell (Solicitor)(Respondent)

Solicitors:
Storey and Gough Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2022/318476

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Okinawa Pty Ltd (the Applicant) against the Liverpool Council’s (the Respondent) deemed refusal of Development Application No 676/2022.

2. The Development Application seeking Development Consent for multi dwelling housing development comprising seven dwellings with associated seven lot Strata Subdivision, civil works including bulk earthworks, construction of retaining walls, service connections and landscaping at Lot 635, DP1245754 Caldwell Avenue, Edmondson Park (the Site).

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). I presided over the conciliation process which commenced on 17 March 2023.

4. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties’ agreement was to seek orders granting Development Consent to the Development Application, subject to conditions.

5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Liverpool Local Environmental Plan 2008 (LLEP 2008), the subject Site is zoned R1 General Residential. The use of the land for multi dwelling housing is permissible with development consent in the zone. The parties are satisfied that the development is consistent with the relevant zone objectives.

2. The Development Application complies with the relevant development standards being the maximum Height of Building (cl 4.3) and the allowable Floor Space Ratio (cl 4.4) of the LLEP 2008.

3. Clause 6.5 of LLEP 2008 requires satisfaction that any required public infrastructure that is essential to the development is available. The parties have reviewed these requirements and noted that the required serves are available.

4. The parties have also reviewed and are satisfied that the proposed development does not adversely impact on the criteria contained in cl 7.31 of LLEP 2008 relating to earthworks and excavation.

5. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

6. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The parent Site, being 2102 and 2116 Camden Valley Way, was approved for subdivision in 2018 under DA-561/2016 which created 80 residential lots, and six residue lots (including the subject Site of this DA, Lot 635). As part of the subdivision works, remediation across the entire site was undertaken in 2018-2019. A site contamination validation certificate was prepared in May 2019 in accordance with the conditions of DA-561/2016. The Material Characterisation Assessment dated 5 October 2022 by Geotest Services has assessed the stockpiles finding that the material is excavated natural material and non-putrescible. The parties consider, and I agree, that the Site is suitable for the residential land use and that the required assessments have been undertaken.

7. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the Development Application. The development is located adjacent to Camden Valley Way, being a road with an annual average daily traffic volume of more than 20,000 vehicles. Section 2.120(3) of SEPP TI provides that the consent authority must not grant consent to a development unless it is satisfied that steps have been taken to ensure appropriate LAeq sound levels are not exceeded. The Respondent is satisfied that the recommendations in the Traffic Noise Impact Assessment by Marshall Day Acoustics dated 31 March 2020 comply with the appropriate LAeq sound levels which are incorporated into the proposed dwellings. The requirements of SEPP TI have been met.

8. Rural Fires Act 1997 (RF Act) applies to the Development Application. The Development Application was referred to the NSW Rural Fire Service and General Terms of Approval were subsequently issued. These terms were considered satisfactory to the Respondent and are included on the conditions in Annexure “A”. The requirements of the RF Act have been met.

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’ agreement.

9. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders. I was not required to make, and have not made, any assessment of the merits of the Development Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

10. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Development Application No DA 676/2022 seeking Development Consent for a multi dwelling housing development comprising seven dwellings with associated seven lot Strata Subdivision, civil works including bulk earthworks, construction of retaining walls, service connections and landscaping at Lot 635, DP1245754 Caldwell Avenue, Edmondson Park, is determined by the granting of Development Consent, subject to the conditions set out in Annexure “A”.

Stuart Harding

Acting Commissioner of the Court

318476.22 Annexure A (635710, pdf)

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Decision last updated: 16 May 2023