QC Austral 50 Eleventh Pty Ltd v Liverpool City Council

[2022] NSWLEC 1369

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

QC Austral 50 Eleventh Pty Ltd v Liverpool City Council [2022] NSWLEC 1369

Hearing dates:

Conciliation conference 7 July 2022

Date of orders:

13 July 2022

Decision date:

13 July 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The clause 4.6 request seeking contravention of cl 4.1B of Appendix 8 to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 prepared by Craig and Rhodes and dated July 2022 is upheld.

(2) The appeal is upheld.

(3) Development application DA-1303/2021 for alterations and additions to the existing dwelling and a two lot Torrens Title subdivision at 42-50 Eleventh Avenue, Austral being Lot 821 in Deposited Plan 2475 is determined by the grant of consent subject to the conditions at annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Precincts-Western Parkland City) 2021, cl 3.9

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

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, cll 2.3, 2.6, 4.1B, 4.6, 6.1, 6C, 6.3

Cases Cited:

Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Liverpool Growth Centre Precincts Development Control Plan 2012

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
J Farrell (Applicant)
R O’Gorman Hughes (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicants)
Liverpool City Council (Respondent)

File Number(s):

2022/55938

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal under the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA 1303/2021 (DA) by Liverpool City Council (Council). The DA is for alterations and additions to an existing dwelling and a two lot Torrens Title “procedural” subdivision at 42-50 Eleventh Avenue Austral, being Lot 821 in Deposited Plan 2475 (site).

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 7 July 2022. I presided over the conciliation conference.

3. At the conciliation conference, the parties tabled an 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 and granting development consent to the development application, as amended, subject to conditions.

4. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties sought to assist here by compiling a jurisdictional statement (received by email 7 July 2022). Mindful of this advice, I find as follows in regard to jurisdiction:

Planning provisions

6. Although the recently enacted Chapter 3 of the State Environmental Planning Policy (Precincts-Western Parkland City) 2021 (Precincts SEPP) applies to the site, the DA has the benefit of the savings and transitional provisions in both the Precincts SEPP (at cl 3.9) and the now repealed State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) (at cl 6C). I accept that, given the lodgement date of 11 November 2021, the Growth Centres SEPP applies to this DA. It is Appendix 8 of the Growth Centres SEPP, comprising the “Liverpool Growth Centres Precinct Plan” which applies to the site.

Growth Centres SEPP - Appendix 8 - Liverpool Growth Centres Precinct Plan

7. Clause 2.6 permits land subdivision but only with development consent.

8. The land to which the DA relates is zoned R2 – Low Density Residential and SP2 – Local Drainage. Mindful of cl 2.3(2), I have had regard to the objectives for development in both the R2 and SP2 zones.

9. Clause 4.1B is concerned with residential density. Under subcl 4.1B(3), the density of any residential development to which this clause applies is not to be less than the density shown on the Residential Density Map in relation to that land. The applicable control is 15 dwellings per hectare. The proposal would breach this control. The applicant calls on cl 4.6, for the purposes of seeking an exception to this contravention. I consider this later.

10. Clause cl 6.1(1) of provides as follows:

The consent authority must not grant development consent to development on land to which this Precinct Plan applies 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.

11. The retained dwellings will maintain existing utility infrastructure and servicing arrangements. Proposed conditions have been submitted requiring connection to a reticulated sewerage system when it becomes available. I am satisfied in regard to cl 6.1(1).

12. Part of the site falls within an existing native vegetation area as shown on the Native Vegetation Protection Map, and cl 6.3 is triggered. In this case there is no clearing of vegetation of any kind proposed. I am satisfied in regard to subcl 6.3(4).

Consideration of contravention of clause 4.1B

13. To open the door to the application of cl 4.6, a written request has been provided on behalf of the applicant which seeks to justify the contravention of the development standard. The written request was prepared by Craig and Rhodes and is dated July 2022.

14. There are certain preconditions to be satisfied prior to the application of the permissive powers of cl 4.6. The first opinion of satisfaction, at cl 4.6(4)(a)(i), is that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: (1) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)), and (2) that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

15. In Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe), a set of common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary were identified.

16. In the matter before me, the written request relies on the first Wehbe “way”: that the objective of the standard is achieved notwithstanding non-compliance with the standard. The written request also references another Wehbe test, but I don’t need to consider this here because, as will be seen below, I find favourably on the written request’s adequacy in regard to the first Wehbe test.

17. The objectives of cl 4.1B are as follows:

(a) to establish minimum density requirements for residential development, and

(b) to ensure that residential development makes efficient use of land and infrastructure, and contributes to the availability of new housing, and

(c) to ensure that the scale of residential development is compatible with the character of the precinct and adjoining land.

18. I note that Objective (a) is explanatory of the purpose of the standard (in the sense of Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 (see [49]). Objective (a) is already achieved. Otherwise, the written request is convincing, in its demonstration that the other two nominated objectives are achieved, in that it explains that the proposal is procedural only. The proposal provides for the creation of one smaller lot (1513m2) and one larger lot (10,062m2). The larger lot would ultimately be subject to more intense development. The proposal therefore provides for a step in the process towards the achievement of the intended residential density standards. Through its explanation of this proposal as making way for future subdivision and development in accordance with the residential development standard, the written request successfully argues that Objective (b) (relating to ensuring the efficient use of land and infrastructure and contributing to housing availability) and Objective (c) (relating to future compatibility of residential scale with the planned character) are both achieved.

19. The written request also cites environmental planning grounds, which for me are sufficient to justify contravening the development. While more grounds are cited, for me, the fact that this is a procedural subdivision which would facilitate the ultimate development of the site for the planned purpose and to the planned density is sufficient in the circumstances.

20. I have formed the required two positive opinions of satisfaction under cl 4.6(4)(a)(i). That is, that the applicants’ written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). I can now turn to cl 4.6(4)(a)(ii). This requires me to have a direct opinion of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out.

21. I adopt the reasoning in the written request to demonstrate that the proposal is consistent with the objectives of the relevant development standard. The R2 zone objectives are as follows:

• 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.

22. The only relevant objective for the R2 Low Density zone is the first nominated. The proposal is consistent with this objective because it is concerned with progressing the steps towards land conversion for residential development to meet housing needs.

23. The SP2 Local Drainage zone objectives are as follows:

• To provide for infrastructure and related uses.

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

24. No works are proposed with the current application. However, in due course certain infrastructure works will be undertaken within the zone to directly achieve the zone objectives. The proposal is consistent with the zone objective because it creates a residue lot which will ultimately be put to use, in part, for the required infrastructure works.

25. In accordance with the above findings, I have formed the required two positive opinions of satisfaction under cl 4.6(4)(a)(ii). I am of the opinion that the proposal is in the public interest because it is consistent with the objectives of the relevant development standard and the objectives for development within the relevant zones.

26. When a matter is on appeal, the Court is not required to obtain the concurrence of the Secretary (cl 4.6(4)(b)), however it should still consider the matters in cl 4.6(5). I have done so and see no matters of relevance therein.

27. In accordance with the above findings, the conditions which are required to be satisfied before the permissive power in cl 4.6(2) comes into effect have been met. This enlivens the power of the Court to grant development consent notwithstanding its contravention of the residential density standard.

Other matters

28. In regard to State Environmental Planning Policy (Resilience and Hazards) 2021: consideration has been given to whether the site is contaminated as required by s 4.6(1). This is a procedural subdivision with no change in land use proposed, in the circumstances no further action is required.

29. In regard to s 100B of the Rural Fires Act 1997 and integrated development provisions: the NSW Rural Fire Service issued a Bushfire Safety Authority on 22 April 2022 and the general terms of approval have been incorporated into the conditions of consent.

30. Section 4.15(1) of the EPA Act requires a consent authority to take into consideration certain other matters as relevant:

• Mindful of subs 4.15(1)(a)(iii), I have given consideration to Liverpool Growth Centre Precincts Development Control Plan 2012.

• In regard to subs 4.15(1)(d), I note the advice of Council that the proposal did not require public notification.

• I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

31. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

32. 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. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

33. The Court orders that:

1. The clause 4.6 request seeking contravention of cl 4.1B of Appendix 8 to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 prepared by Craig and Rhodes and dated July 2022 is upheld.

2. The appeal is upheld.

3. Development application DA-1303/2021 for alterations and additions to the existing dwelling and a two lot Torrens Title subdivision at 42-50 Eleventh Avenue, Austral being Lot 821 in Deposited Plan 2475 is determined by the grant of consent subject to the conditions at annexure “A”.

…………………………

P Walsh

Commissioner of the Court

Annexure A (594738, pdf)

Amendments

30 August 2022 - pursuant to UCPR r 36.17, Annexure A as referenced in Order 3 made on 13 July 2022 is amended in regard to the description of development on page 1.

Decision last updated: 30 August 2022