QC Austral 50 Eleventh Pty Ltd v Liverpool City Council

[2025] NSWLEC 1134

Land and Environment Court

New South Wales

Medium Neutral Citation:

QC Austral 50 Eleventh Pty Ltd v Liverpool City Council [2025] NSWLEC 1134

Hearing dates:

Conciliation Conference 6 February 2025

Date of orders:

11 March 2025

Decision date:

11 March 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA-1454/2021 for the Torrens title subdivision of Lot 2 DP 1288919 (previously Lot 821 DP 2474) into 20 lots (16 residential lots and 4 residue lots being proposed Lots 104, 118, 119 and 120) with tree removal, demolition of existing structures, construction and dedication of public roads and associated site works at 42-50 Eleventh Avenue, Austral, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

APPEAL – Development application - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.47, 8.7, 8.10, 8.11

Land and Environment Court Act 1979, ss 17, 34

Rural Fires Act 1997, s 100B

Water Management Act 2000, s 91

Environmental Planning and Assessment Regulations 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, ss 6.65, 9.1, 9.3, 9.4, 9.5

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, cl 1.8A

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

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, Appendix 8, ss 4.1AA, 4.1AB, 4.1B, 6.1, 6.2

Category:

Principal judgment

Parties:

QC Austral 50 Eleventh Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
A Jucha (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2023/320870

Publication restriction:

No

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (DA-1454/2021) (Development Application). The Development Application, as lodged, sought consent for the demolition of existing structures, tree removal, subdivision of land into 19 lots comprising 17 vacant residential lots and two residue lots, dedication of public roads and associated site works, on land identified as Lot 821 in Deposited Plan 2475, known as 42-50 Eleventh Avenue, Austral, NSW.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application was lodged on 16 December 2021.

4. The development the subject of the Development Application is integrated development within the meaning of s 4.46 of the EPA Act as concurrence is required:

1. under s 100B of the Rural Fires Act 1997 (RF Act) as the development proposes the subdivision of bush fire prone land that could lawfully be used for residential purposes; and

2. under s 91 of the Water Management Act 2000 (WM Act) as the proposed development is a “controlled activity” under s 91 of the WM Act.

5. The Development Application was notified in accordance with the Liverpool Community Participation Plan 2019 with one submission being received in relation to the notification.

6. Following various requests for information, the applicant submitted an amended development application on 2 August 2023 for the purposes of s 38(2) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

7. On 10 October 2023, the proceedings were commenced in relation to the deemed refusal of the amended Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

8. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the LEC Act between the parties on 2 August 2024, the matter was listed for hearing on 6 and 7 February 2025.

9. Prior to the hearing, the parties reached agreement and requested that the matter be listed for another s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 6 February 2025, following which the hearing was vacated. I presided over the conciliation conference.

10. The decision agreed upon is for the grant of consent to the Development Application, as further amended, subject to conditions of consent (Amended Development Application). The signed agreement is supported by an agreed jurisdictional statement.

11. The Amended Development Applications includes clarification as to the evolving title details of the subject land. As at the date of lodgement of the Development Application, works were proposed to a portion of Lot 821 in Deposited Plan 2475 (Lot 821). Since lodgement, Lot 821 was subdivided into Lot 2 in Deposited Plan 1288919 (Lot 2) and Lot 1 in Deposited Plan 1288919. The Amended Development Application relates to Lot 2 only, being the same area and boundary as originally proposed.

12. Further, the Amended Development Application now proposes battering works on Lot 820 in Deposited Plan 2475 (60 Eleventh Avenue, Austral) (Lot 820).

13. 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.

Jurisdictional considerations

14. 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). I form this state of satisfaction for the reasons that follow.

Owners consent

15. The registered proprietors of (now) Lot 2 provided consent to the Development Application when it was lodged with the respondent (see Class 1 Application, tab 4).

16. As set out at [12], the Amended Development Application now proposes battering works on Lot 820. The registered proprietors of Lot 820 have provided their owners consent to the proposal.

17. For completeness, I note that the works originally proposed to 40 Eleventh Avenue, Austral, do not form part of the Amended Development Application in its current form.

Rural Fires Act 1997

18. Pursuant to s 100B(3) of the RF Act, a person must relevantly obtain a bush fire safety authority before developing bush fire prone land including for subdivision that could lawfully be used for residential purposes.

19. The Amended Development Application was referred to the NSW Rural Fire Service (RFS) who issued a relevant Bush Fire Safety Authority and general terms of approval (RFS GTAs) on 22 October 2024. The RFS GTAs have been incorporated in the agreed conditions of consent (see condition 2 and Attachment 3).

20. To this end, I note that the Amended Development Application includes a Bushfire Threat Assessment prepared by AEP dated May 2024 which was considered by the RFS in issuing the RFS GTAs.

Water Management Act 2000

21. Pursuant to s 91(2) of the WM Act, “a controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land”.

22. The Subject Land is in the vicinity of “Trib Kemps Creek”, therefore falling within the definition of “waterfront land” under the WM Act.

23. The respondent referred the Development Application, as lodged, to the Natural Resources Access Regulator (NRAR) for the purposes of ss 4.46 and 4.47 of the EPA Act and s 91(2) of the WM Act.

24. On 7 July 2022, NRAR issued general terms of approval (NRAR GTAs) in relation to the Development Application. The NRAR GTAs have been incorporated in the agreed conditions of consent (see condition 3 and Attachment 4)

State Environmental Planning Policy (Resilience and Hazards) 2021

25. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. If the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

26. The Development Application, as lodged, contained a Stage 1 Preliminary and Stage 2 Detailed Site Investigation prepared by Sydney Environmental Group Pty Ltd dated 1 March 2022 (Contamination Report) which concluded that remediation and validation works would be required to make Lot 2 (being the relevant area of Lot 821 identified in the Development Application) suitable for the proposed residential land use. Consequently, a Remediation Action Plan prepared by Sydney Environmental Group Pty Ltd dated 1 March 2022 (RAP) has been prepared and forms part of the Amended Development Application. The RAP concludes that Lot 2 can be made suitable for the proposed residential land use subject to recommendations. The parties agree that these recommendations are included in the agreed conditions (see conditions 1, 82, 83, 85 and 131).

27. The parties agree that the requirements of s 4.6(1) of the RH SEPP are satisfied.

28. Having regard to the Contamination Report and RAP which also consider the surrounding area, I am satisfied that the requirements of s 4.6 of the RH SEPP have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

29. Chapter 9 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) (Hawkesbury-Nepean River) applies to the proposed development. This is because:

1. Although Ch 9 of the BC SEPP was repealed on 21 November 2022 through the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments Amendment SEPP), s 6.65 of the BC SEPP provides that the former Chapters continue to apply to a development application which was lodged, but not fully determined, before the commencement of the Water Catchments Amendment SEPP. The Development Application was lodged on 16 December 2021, being prior to the commencement of the Water Catchments Amendment SEPP. As the Development Application has not yet been determined, Chapter 9 of the BC SEPP continues to apply to the Development Application.

2. The proposed development the subject of the Amended Development Application is located in the Liverpool local government area (cl 9.1(1) of the BC SEPP).

30. Section 9.3 of the BC SEPP requires the consent authority to take into consideration the matters set out in ss 9.4 and 9.5 of the BC SEPP in determining a development application on land to which the Chapter applies.

31. The parties agree that the matters set out in ss 9.4 and 9.5 of the BC SEPP have been considered. The following documents have been provided in support of the Amended Development Application that are relevant to Ch 9 of the BC SEPP:

1. Statement of Environmental Effects prepared by Craig & Rhodes dated August 2023 (SEE);

2. Engineering drawings prepared by Craig & Rhodes;

3. Letter of advice regard Aboriginal heritage prepared by Biosis dated 3 December 2021 and Aboriginal Due Diligence Assessment prepared by Biosis dated 1 November 2021;

4. Overland Flow Impact Assessment prepared by Craig & Rhodes dated May 2022;

5. Stormwater Management Report prepared by Colliers dated May 2024; and

6. Biodiversity Certification Assessment Report prepared by AEP, dated 5 June 2024.

32. In determining the Amended Development Application, and having regard to the documents listed above, I am satisfied that the matters set out in ss 9.4 and 9.5 of the BC SEPP have been considered for the purposes of s 9.3.

State Environmental Planning Policy (Precincts – Western Parkland City) 2021

33. State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (GC SEPP) applies to the proposed development. This is because, although the GC SEPP was repealed on 28 February 2022 and the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Precincts SEPP) commenced on 1 March 2022, cl 1.8A of Appendix 4 of the Precincts SEPP contains a savings provision which relevantly provides that the GC SEPP applies to development applications lodged but not finally determined prior to the commencement of the Precincts SEPP. As stated previously, the Development Application was lodged on 16 December 2021.

34. In any event, there is no substantive difference between the relevant provisions of the GC SEPP and the Precincts SEPP for the purposes of determining the Amended Development Application.

35. Lot 2 is zoned part R2 Low Density Residential and part SP2 Infrastructure under the Liverpool Growth Centres Precinct Plan (Precinct Plan) contained in Appendix 8 of the GC SEPP. Accordingly, the development the subject of the Amended Development Application is permitted with consent under the Precinct Plan.

36. I have had regard to the R2 and SP2 zone objectives which are extracted below:

R2 Low Density Residential

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

•  To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

SP2 Infrastructure

•  To provide for infrastructure and related uses.

•  To prevent development that is not compatible with or that may detract from the provision of infrastructure.

37. The parties agree that the Amended Development Application can be approved having regard to the objectives of the R2 and SP2 zones, considered in the SEE (Appendix A)

38. Clause 4.1AB of the Precincts Plan sets out minimum lot sizes for residential development in the R2 Low Density zone. Pursuant to cl 4.1AB(3)(b), the minimum lot size for a dwelling house is 300m2 if the dwelling density (per hectare) shown on the Residential Density Map for the site is 15, 25 or 35 dwellings. The R2 zoned portion of Lot 2 has a dwelling density (per hectare) of 15 dwellings.

39. Therefore, the Amended Development Application complies with this provision for those proposed lots that are 300m2 or larger.

40. In relation to the proposed lots that are less than 300m2, the parties agree that cl 4.1AA of the Precincts Plan applies. Clause 4.1AA of the Precinct Plan relevantly provides that development consent may be granted to the subdivision of land in land zoned R2 resulting in the creation of a lot that has an area less than 300m2 (but not less than 225m2), if the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on that lot. The Amended Development Application is accompanied by building envelope plans which confirm that those lots are capable of containing a dwelling house which complies with relevant controls.

41. Pursuant to cl 4.1B of the Precinct Plan, the minimum dwelling density (per hectare) for the R2 zoned portion of Lot 2 is 15 dwellings. The Amended Development Application proposes a dwelling density of 18.32 dwellings per hectare in the R2 zone and therefore complies with this section.

42. Pursuant to cl 6.1 of the Precinct Plan, a consent authority must not grant development consent to development unless it is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.

43. The parties agree that the development the subject of the Amended Development Application will be connected to all essential services as detailed in the SEE and subject to the agreed conditions.

44. Having regard to the SEE and Agreed Conditions, I am satisfied that the public utility infrastructure essential for the proposed development the subject of the Amended Development Application is available or adequate arrangements have been made to make that infrastructure available when required in accordance with cl 6.1 of the Precinct Plan.

45. Pursuant to cl 6.2 of the Precinct Plan, development consent is not to be granted to the clearing of vegetation mapped as “native vegetation retention areas” unless the consent authority is satisfied of various matters. The parties agree that the part of Lot 2 zoned SP2 is mapped as Native Vegetation Retention Area. The SP2 zoned portion of Lot 2 is to be dedicated to Council and no clearing of trees or vegetation is proposed on this part of Lot 2.

46. Pursuant to cl 6.3 of the Precincts Plan, the consent authority must not grant development consent for development on land mapped “existing native vegetation” unless it is satisfied that the proposed development will not result in the clearing of any existing native vegetation. The parties agree that the Amended Development Application does not propose the clearing of any existing native vegetation.

Liverpool City Council Growth Centres Precinct Development Control Plan (DCP)

47. The parties agree that the Amended Development Application can be approved having regard to the provisions of the DCP.

Remaining matters under s 4.15(1) of the EPA Act

48. The parties agree that the Amended Development Application can be approved taking into consideration the matters in section 4.15(1)(b) – (e) of the EPA Act.

Conclusion

49. 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.

50. 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.

51. The Court notes that the respondent as the relevant consent authority for the purposes of s 38(1) of the Environmental Planning and Assessment Regulation 2021 approves the amendment to Development Application DA-1454/2021 to rely on the following plans and documentation:

Plan Name	Drawing No.	Revision	Date	Prepared By
Site Plan	331-21G L01 [05] - SITE PLAN	05	24/09/2024	Craig & Rhodes
Subdivision Plan	331-21G L01 [05] - SUBDIVISION PLAN	05	24/09/2024	Craig & Rhodes
Demolition Plan	331-21C-DA-0021	F	01/05/2024	Craig & Rhodes
Civil Engineering Plans	331-21C-DA-0001 to 0902	G	28/05/2024	Craig & Rhodes

Report Name	Date	Reference	Prepared By
Bushfire Threat Assessment	May 2024	2531.01	AEP
Biodiversity Certification Assessment Report	5 June 2024	2531.01	AEP
Stormwater Management Report	29 May 2024	Colliers

52. The parties agree that the amendments set out at [51] above are considered minor.

Orders

53. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-1454/2021 for the Torrens title subdivision of Lot 2 DP 1288919 (previously Lot 821 DP 2474) into 20 lots (16 residential lots and 4 residue lots being proposed Lots 104, 118, 119 and 120) with tree removal, demolition of existing structures, construction and dedication of public roads and associated site works at 42-50 Eleventh Avenue, Austral, is determined by the grant of development consent subject to the conditions at Annexure A.

N Targett

Commissioner of the Court

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Annexure A

Decision last updated: 11 March 2025