Psalms Corp Pty Ltd v Liverpool City Council

[2024] NSWLEC 1393

Land and Environment Court

New South Wales

Medium Neutral Citation:

Psalms Corp Pty Ltd v Liverpool City Council [2024] NSWLEC 1393

Hearing dates:

Conciliation conference on 10 April 2024

Date of orders:

10 July 2024

Decision date:

10 July 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) Leave is granted for the Applicant to amend the Class 1 application to rely on the further and amended material listed at [8].

(2) The Appeal is upheld.

(3) Development consent is granted to Development Application No. DA-1479/2021, as amended, for demolition of existing structures and construction of multi-dwelling housing accommodating a total of 4 dwellings on land legally described as Lot 1 in DP525763 known as 139 Nuwarra Road, Moorebank subject to the conditions at Annexure A.

Catchwords:

APPEAL – development application – multi dwelling housing – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021 ss 27, 37, 38

Liverpool Local Environmental Plan 2008

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

Category:

Principal judgment

Parties:

Psalms Corp Pty Ltd (First Applicant)
Reverence Investments Pty Ltd (Second Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
J Mee (Respondent)

Solicitors:
McKees Legal (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2023/304508

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a multi-dwelling housing development at 139 Nuwarra Road, Moorebank, which was refused by Liverpool City Council on 28 March 2023. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 April 2024 and continued on numerous occasions by Online Court. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 4 July 2024, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments made include the reduction in the number of dwellings from five to four, the provision of two car parking spaces for each dwelling, changes to the principal private open space areas, increased width of the landscape strip along the southern side boundary, greater articulation of the built form on the northern façade, and an increase of the rear setback at the upper level.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in [8] below. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned R3 Medium Density Residential pursuant to the Liverpool Local Environmental Plan 2008 (LLEP), and multi dwelling housing is a permissible use in the R3 zone.

• The proposed development complies with the development standards in the LLEP concerning height and floor space ratio.

• Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 9 June 2024.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The development application was notified to adjoining and surrounding properties for a period of 15 days from 29 March 2022 to 13 April 2022, and no submissions were received.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, 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.

8. The Court notes:

1. The Respondent has agreed under s 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA-1479/2021 to include the further and amended plans and documents described below:

1. Architectural Plans, prepared by Baini design:

Drawing No.	Drawing Title	Issue	Date
00	Cover Page	D	16/04/2024
01	Compliance Table	D	16/04/2024
02	Demolition Plan	D	16/04/2024
03	Site Plan	D	16/04/2024
04	Ground Plan	D	16/04/2024
05	First Floor	D	16/04/2024
06	Elevations	D	16/04/2024
07	Sections	D	16/04/2024
08	3D Perspectives	D	16/04/2024
09	Schedule of Finishes	D	16/04/2024
10	Streetscape	D	16/04/2024
11	Shadows 9am	D	16/04/2024
12	Shadows 12pm	D	16/04/2024
13	Shadows 3pm	D	16/04/2024
14	Landscape Calculation Plan	D	16/04/2024

2. Landscape plans prepared by Outside In Design Group:

Drawing No.	Drawing Title	Issue	Date
01	Landscape Concept	D	25/05/2024
02	Streetscape Elevation - East	D	25/05/2024

3. Stormwater plans prepared by Telford Civil:

Drawing No.	Drawing Title	Issue	Date
000	Cover Sheet, Notes & Legend	E	27/05/2024
101	Stormwater Concept Plan Ground Level Sheet 1 of 2	E	27/05/2024
102	Stormwater Concept Plan Ground Level Sheet 2 of 2	E	27/05/2024
103	On Site Detention Details and Calculation Sheets Sheet 1 of 2	E	27/05/2024
104	On Site Detention Details and Calculation Sheets Sheet 2 of 2	E	27/05/2024
105	Miscellaneous Details Sheet	E	27/05/2024

4. BASIX Certificate No. 1750921M, prepared by AKV Pty Ltd, dated 9 June 2024

9. The Court orders that:

1. Leave is granted for the Applicant to amend the Class 1 application to rely on the further and amended material listed at [8] above.

2. The Appeal is upheld.

3. Development consent is granted to Development Application No. DA-1479/2021, as amended, for demolition of existing structures and construction of multi-dwelling housing accommodating a total of 4 dwellings on land legally described as Lot 1 in DP525763 known as 139 Nuwarra Road, Moorebank subject to the conditions at Annexure A.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 10 July 2024