Pivotal Planning Pty Ltd v Liverpool City Council

[2024] NSWLEC 1400

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pivotal Planning Pty Ltd v Liverpool City Council [2024] NSWLEC 1400

Hearing dates:

Conciliation conference 1 May 2024

Date of orders:

12 July 2024

Decision date:

12 July 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is directed to file the amended development application, the subject of Order (3), within 7 days of the date of this Order.

(2) The appeal is upheld.

(3) Development consent is granted to DA-435/2023 for demolition of all structures and trees, lot consolidation and construction of a multi dwelling housing development with strata subdivision at 13-15 Flowerdale Road, Liverpool, subject to conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 2.3, 2.6, 2.7, 4.3, 4.4, 7.31

Environmental Planning and Assessment Regulation 2021, s 38

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6

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

State Environmental Planning Policy (Sustainable Buildings) 2022

Category:

Principal judgment

Parties:

Pivotal Planning Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
D Galpin (Solicitor) (Respondent)

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

File Number(s):

2023/319657

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application 435/2023 for the demolition of existing structures, tree removal, lot consolidation and construction of a multi dwelling housing development with strata subdivision (DA) at 13-15 Flowerdale Road, Liverpool legally known as Lots 5 and 6 in DP 23024 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 May 2024 with subsequent material received by the Court thereafter. I have presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending DA-435/2023 in accordance with the documents listed at [22] (amended DA).

4. As part of the conciliation conference process, 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 for the amended DA and granting development consent to the amended application subject to conditions of consent.

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. 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 the jurisdictional prerequisites have been satisfied. 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, as set out below.

9. I am satisfied that owners consent accompanied the DA. The Respondent notified the DA between 25 August 2023 and 11 September 2023. One submission was received. The Court and the parties heard oral submissions at the commencement of the s 34 conciliation conference.

10. In reaching agreement, the parties have considered the concerns raised.

Liverpool Local Environmental Plan 2008 (LLEP)

11. The subject site is zoned R3 Medium Density Residential pursuant to the Liverpool Local Environmental Plan 2008 (LLEP), where the proposed development for multi dwelling housing is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.6 permits the proposed subdivision with development consent. Clause 2.7 permits the proposed demolition.

12. Clause 4.3 height of buildings applies which allows a maximum height of 8.5m. The amended Architectural Plans prepared by Everlast Drafting Services dated 21 May 2024 (architectural plans) show that the amended DA is below the height limit (dwgs 3.01 and 3.04).

13. Clause 4.4 floor space ratio (FSR) applies and allows a maximum of 0.55:1. The amended DA proposes a FSR of 0.51:1 as shown on the architectural plans (dwg 1.02).

14. Clause 7.31 earthworks applies to the amended DA. I accept the parties agreement that the provisions have been considered as set out in the jurisdictional statement.

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

15. The DA was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022. In accordance with the savings provisions under s 4.2, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies instead. An amended BASIX Certificate accompanies the amended DA that meets the requirements.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. With consideration of Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021, I accept the parties’ agreement that the proposed tree removal is consistent with the provisions and supported by the Arboricultural Impact Assessment prepared by Complete Arborcare dated 18 April 2024.

17. The site is located within the Georges River Catchment and accordingly, Ch 6 applies. I accept the parties’ agreement that the provisions are satisfied as the development will have a neutral effect on the quality of water and adequate management of stormwater run-off as demonstrated through the amended Stormwater Water Plans prepared by KD Stormwater dated 4 June 2024 (SW plans) and detailed in the Statement of Environmental Effects prepared by Pivotal Planning dated June 2023 (SEE).

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)

18. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The proposed development is accompanied by a SEE. The SEE stipulates that the site has a history of residential use and there is no evidence to suggest potential contamination. Accordingly, the parties agree, and I am satisfied, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

Conclusion

19. 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.

20. 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.

21. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Notations

22. The Court notes that the Respondent has approved, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-435/2023 to rely upon the following amended plans and documents:

Architectural Plans
Plan name	Drawing Ref	Revision	Date	Prepared by
Cover Sheet	0.00	F	21 May 2024	Everlast Drafting Services
3D Render	0.00-1	F	21 May 2024	Everlast Drafting Services
Windows Schedule	0.02	F	21 May 2024	Everlast Drafting Services
9AM – Shadow Diagram	0.03-1	F	21 May 2024	Everlast Drafting Services
10AM – Shadow Diagram	0.03-2	F	21 May 2024	Everlast Drafting Services
10AM – Shadow Diagram	0.03-3	F	21 May 2024	Everlast Drafting Services
12PM – Shadow Diagram	0.03-4	F	21 May 2024	Everlast Drafting Services
1PM – Shadow Diagram	0.03-5	F	21 May 2024	Everlast Drafting Services
2PM – Shadow Diagram	0.03-6	F	21 May 2024	Everlast Drafting Services
3PM – Shadow Diagram	0.03-7	F	21 May 2024	Everlast Drafting Services
Roof Plan	1.01	F	21 May 2024	Everlast Drafting Services
Site Plan – Ground Floor	1.01-A	G	7 June 2024	Everlast Drafting Services
Site Plan – First Floor	1.01-B	F	21 May 2024	Everlast Drafting Services
Gross Floor and Landscape Calculations	1.02	F	21 May 2024	Everlast Drafting Services
Site Analysis	1.03	F	21 May 2024	Everlast Drafting Services
Proposed Site & Neighbouring POS Locations	1.04	F	21 May 2024	Everlast Drafting Services
Swept Car Circulation	1.05	F	21 May 2024	Everlast Drafting Services
Ground Floor – Plan	2.01	G	7 June 2024	Everlast Drafting Services
Upper Floor – Plan	2.02	F	21 May 2024	Everlast Drafting Services
Exterior Elevations	3.01	F	21 May 2024	Everlast Drafting Services
Exterior Elevations	3.02	F	21 May 2024	Everlast Drafting Services
Exterior Elevations	3.03	F	21 May 2024	Everlast Drafting Services
Exterior Elevations	3.04	F	21 May 2024	Everlast Drafting Services
Building Sections	4.01	F	21 May 2024	Everlast Drafting Services
Building Sections	4.02	F	21 May 2024	Everlast Drafting Services
East West Section Privacy Plan	5.01	F	21 May 2024	Everlast Drafting Services
East West Section Privacy plan	5.02	F	21 May 2024	Everlast Drafting Services
Demolition Plan	6.00	F	21 May 2024	Everlast Drafting Services
Site Surveying & Tree 4 Location	9.02	F	21 May 2024	Everlast Drafting Services
Amended Landscape Plans
Plan name	Drawing ref	Revision	Date	Prepared by
Hardscape Plan	Sheet 1	I	7 June 2024	Conzept Landscape Architects
Landscape Plan	Sheet 2	I	7 June 2024	Conzept Landscape Architects
Landscape/POS Calculation	Sheet 3	I	7 June 2024	Conzept Landscape Architects
Planting Palettes	Sheet 4	I	7 June 2024	Conzept Landscape Architects
Details 1	Sheet 5	I	7 June 2024	Conzept Landscape Architects
Details 2	Sheet 6	I	7 June 2024	Conzept Landscape Architects
Specification	Sheet 7	I	7 June 2024	Conzept Landscape Architects
Amended Stormwater Plans
Plan name	Drawing ref	Revision	Date	Prepared by
Drainage Concept Plan & Details	Sheet 1	D	4 June 2024	KD Stormwater
Roof Drainage Plan	Sheet 2	D	4 June 2024	KD Stormwater
OSD Catchment Plan	Sheet 3	D	4 June 2024	KD Stormwater
Car Park Compliance Review Ground Swept Path Assessment
Plan name	Drawing ref	Revision	Date	Prepared by
Concept Layout	Sheet 01/06	-	30 May 2024	Stanbury Traffic Planning
Swept Path Assessment	Sheet 02/06	-	30 May 2024	Stanbury Traffic Planning
Swept Path Assessment	Sheet 03/06	-	30 May 2024	Stanbury Traffic Planning
Swept Path Assessment	Sheet 04/06	-	30 May 2024	Stanbury Traffic Planning
Swept Path Assessment	Sheet 05/06	-	30 May 2024	Stanbury Traffic Planning
Swept Path Assessment	Sheet 06/06	-	30 May 2024	Stanbury Traffic Planning
Reports
Report name	Revision		Date	Prepared by
Arboricultural Report	B		18 April 2024	Complete Arborcare
BASIX Certificate	1401033M_02		7 June 2024	Ecoplus Consultants
Vehicular Access and Circulation Certification	-		7 June 2024	Stanbury Traffic Planning

Orders

23. The Court orders:

1. The Applicant is directed to file the amended development application, the subject of Order (3), within 7 days of the date of this Order.

2. The appeal is upheld.

3. Development consent is granted to DA-435/2023 for demolition of all structures and trees, lot consolidation and construction of a multi-dwelling housing development with strata subdivision at 13-15 Flowerdale Road, Liverpool, subject to conditions at Annexure A.

S Porter

Commissioner of the Court

319657.23 Annexure A

**********

Decision last updated: 12 July 2024