Pronto Properties (NSW) Pty Ltd v Liverpool City Council

[2019] NSWLEC 1148

Land and Environment Court

New South Wales

Medium Neutral Citation:	Pronto Properties (NSW) Pty Ltd v Liverpool City Council [2019] NSWLEC 1148
Hearing dates:	Conciliation conference on 25 March 2019
Date of orders:	25 March 2019
Decision date:	25 March 2019
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	See orders at [15] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference – environmentally significant land – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Liverpool Local Environmental Plan 2008
Category:	Principal judgment
Parties:	Pronto Properties (NSW) Pty Ltd (Applicant) Liverpool City Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) N Hammond (Respondent)   Solicitors: Walker Hedges & Co (Applicant) Liverpool City Council (Respondent)
File Number(s):	2018/233831
Publication restriction:	No

Judgment

1. COMMISSIONER: The Applicant, Pronto Properties Pty Limited is appealing the notice of determination made by the Respondent, Liverpool City Council, refusing Development Application Number DA-1137/2016 for the erection of a single storey detached dwelling and associated works related to access, swimming pool, fire protection and ecological protection at 1 Sirius Road, Voyager Point. The property is also known as Lot 72 in DP 661069, is rectangular in shape, with a southern boundary along Sirius Road, and is bounded to the east by the Georges River. It has a total area of 10 hectares and the majority of the site has natural vegetation cover.

2. The appeal is made pursuant to s 8.7 Environmental Planning and Assessment Act 1979 (EP & A Act) and falls within Class 1 of the Court’s jurisdiction.

3. The Court arranged for the matter to be addressed under the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act), and under s 34AA(2), s 34 of the LEC Act applies to the proceedings which requires that the Court arrange a conciliation conference between the parties.

4. The conciliation conference was held on 25 March 2019. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings which would be acceptable to the parties. A signed agreement was filed in Court on 25 March 2019.

6. The agreement involved the Court upholding the appeal and granting consent to the development application, subject to conditions which reflected the agreement of the parties.

7. Section 34(3) of the LEC Act requires that I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is one which the Court could have made in the proper exercise of its functions.

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

9. The parties’ decision involves the Court exercising its function under s 4.16 of the EP & A Act to grant consent to the development application, and I am satisfied that the requirements of s. 4.16 have been met. I am also satisfied that the relevant matters in s 4.15(1) of the EP & A Act have been considered.

10. The Liverpool Local Environmental Plan 2008 (LLEP) applies to the site. Under LLEP the site is zoned E3 Environmental Management, and the development proposed is permitted with consent. The site is also Environmentally Significant Land subject to cl 7.6 of LLEP.

11. The grounds of refusal of the development application included that the Council could not be satisfied that the objectives of the E3 zone and of cl 7.6 were met, primarily because of insufficiency of information provided.

12. Further information has now been provided, and there have been discussions between the parties’ experts resulting in joint reports covering three topic areas:-bushfire and ecology; heritage; town planning.

13. I am satisfied that there is now sufficient information for the development application to be assessed, and that issues raised in the joint reports have been adequately addressed through incorporation of appropriate provisions in the proposed conditions.

14. I am further satisfied that the recommendations of the Rural Fire Service NSW included in the letter dated 4 March 2019 (Attachment 2 in Annexure “A”) have been incorporated into the proposed conditions.

15. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

2. Development Application No. DA-1137/2016 for the erection of a single storey detached dwelling and associated works related to access, swimming pool, bushfire protection at 1 Sirius Road, Voyager Point is approved subject to the conditions contained in Annexure “A”.

……………………………..

P Adam

Acting Commissioner of the Court

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Annexure A

Decision last updated: 05 April 2019