Raj & Jai Construction Pty Ltd v Liverpool City Council

[2023] NSWLEC 1422

Land and Environment Court

New South Wales

Medium Neutral Citation:

Raj & Jai Construction Pty Ltd v Liverpool City Council [2023] NSWLEC 1422

Hearing dates:

Conciliation conference on 17 July 2023

Date of orders:

3 August 2023

Decision date:

03 August 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA-458/2022 for the subdivision of land into four super lots including construction of public roads, tree removal, stormwater drainage and associated site works on land legally described as Lot 25 and Lot 26 in DP228850 and known as 164 and 170 Croatia Avenue, Edmondson Park NSW 2174, is determined by the grant of deferred development consent, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – deferred development consent – orders

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 8, s 8.4

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.24, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 2.2, 4.1, 6.5, 7.11

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 1, s 34

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.98

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

Texts Cited:

Edmondson Park South Development Control Plan 2012

Liverpool Community Participation Plan 2019

Liverpool Development Control Plan 2008

NSW Rural Fire Service, Liverpool Bush Fire Prone Land Map

Category:

Principal judgment

Parties:

Raj & Jai Construction Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2022/284674

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings arise following Liverpool City Council’s (Council) deemed refusal of the applicant’s Development Application No DA-458/2022 (DA) for the subdivision of land into four super lots including construction of public roads, tree removal, stormwater drainage and associated site works on land legally described as Lot 25 and Lot 26 in DP228850 also known as 164 and 170 Croatia Avenue, Edmondson Park NSW 2174 (the site).

2. The site is subject to a concept plan development application (DA-33/2021) which was approved by the Regional Planning Panel on 20 September 2022. The concept plan approval is for a mixed use development as part of the Edmondson Park Town Centre comprising residential apartments, retail/commercial floorspace and supporting roads and infrastructure. The DA is for a super lot subdivision that will provide the lots, roads and relevant infrastructure for the future mixed use development as approved under the concept plan approval.

3. The appeal is brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), and the background facts and contentions are set out in the Council’s Statement of Facts and Contentions (SOFAC) dated 11 November 2022, as amended 4 April 2022.

4. The matter was set down for a hearing on 17 July 2023. Prior to the hearing, the parties advised the Court that they were working towards a s 34 agreement and requested that the on-site view on 17 July 2023 be vacated, as the objector did not wish to be heard.

5. The parties agreed that the proceedings be disposed of by the Court in accordance with a s 34 agreement between the parties made in accordance with s 34(3) of the Land and Environment Court Act 1979 (LEC Act). Approval was given to proceed under s 34 of the LEC Act. The hearing was adjourned and the Court arranged a conciliation conference between the parties under s 34(1) of the LEC Act, which was held on 17 July 2023. I presided over the conciliation conference.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involved the Court upholding the appeal and granting development consent to an amended development application on a conditional basis.

7. The applicant had previously amended the original DA to address the matters raised in the SOFAC. The Court granted leave for the applicant to rely on the amended DA on 9 March 2023. Council filed an amended SOFAC raising a single contention relating to the inconsistency of the DA with condition 18 of the concept development plan approval.

8. The applicant has further amended the DA to address this remaining contention. These amended plans are referenced in the s 34 agreement and were filed with the Court on 17 July 2023.

9. 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.

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

11. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a jurisdictional statement accompanying the s 34 agreement, and those requirements have been satisfied as follows:

1. The DA was made by Raj and Jai Constructions Pty Ltd with the written consent of Super Star Holding Group Pty Ltd the owner of the site.

2. The DA was notified in accordance with Liverpool Community Participation Plan, 2019 and there was one objection to the proposed development;

3. Section 4.24 of the EPA Act requires that while any consent granted on the determination of a concept development application remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the site; and

1. The proposed road layout and alignment in the amended DA is now consistent with the Concept Development Application (DA-33/2021) approved for the site. Council has submitted that this satisfied the issues raised by the objector;

4. In relation to the provisions of the State Environmental Planning Policy (Precincts–Western Parkland City) 2021 (WPC SEPP) and the Liverpool Local Environmental Plan 2008 (LLEP):

1. The southern portion of the site forms part of the Edmondson Park South Precinct identified in the WPC SEPP Appendix 1;

2. The site is zoned part R1 – General Residential, part RE1 – Public Recreation, and part SP2 Infrastructure (Local Road) under the LLEP cl 2.2 and zoned part B4: Mixed Use under Appendix 1 of the WPC SEPP; and

1. the proposed development is permissible with consent in the R1, SP2 and B4 zones within which the site is located;

2. roads are permissible within the B4, R1, RE1 and SP2 Zones and no works are proposed in the RE1 zone other than some battering works to support MacDonald Road (the proposed local road through the site);

3. the parties advise that the RE1 and SP2 zoned land is identified for acquisition by Council as riparian open space and future local road connection;

4. I am satisfied that the proposed development is consistent with the objectives for development within the zones in which the development is proposed to be carried out.

3. The northern part of the site is mapped on the Lot Size Map under the LLEP (cl 4.1) as having a minimum size lot size of 300m². The southern part of the site is mapped as having a minimum lot size of 300m² on the Lot Size Map under the WPC SEPP (Appendix 1); and

1. the proposed development is for four super lots which meet the minimum lot size under the LLEP and WPC SEPP Appendix 1;

2. the size of all residential lots resulting from the amended DA are greater than 300m².

4. The northern part of the site is mapped in the LLEP dwelling density map as having a dwelling density of 28 dwellings per hectare. Clause 7.11 of the LLEP requires that development consent must not be granted for the subdivision of land shown on the Dwelling Density Map unless the consent authority is satisfied that the dwelling density likely to be achieved by the subdivision is not less than the dwelling density shown for the land on that Map; and

1. The DA’s proposed subdivision to include all the R1 zoned land in one lot will facilitate its residential development in accordance with the approved concept plan development application;

5. Section 34 of the WPC SEPP Appendix 1 and cl 6.5 of the LLEP apply to the proposed development. The parties submit, and I am satisfied that, public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make public infrastructure available to the development when required; and

1. the DA was referred to Sydney Water and Endeavor Energy, and their responses to the concept plan development application indicated public infrastructure would be available to the site;

2. the DA is accompanied by an Infrastructure Services Report prepared by Stantec that confirms that the site will have adequate water, sewer, electricity and gas available when required to cater for future residents;

5. The proposed development is integrated development requiring approval from NSW Rural Fire Services (RFS) under s 100B the Rural Fires Act 1997. The site is identified as being bush fire prone and includes areas identified as Vegetation Category 1 and Vegetation Category 2 on the on the Bushfire Prone Lands Map. The applicant submitted a Bushfire Protection Assessment with the application and the DA was referred to the RFS, who issued a Bushfire Safety Authority for the proposed development pursuant to s 100B of the Rural Fires Act 1997 on 21 December 2022;

6. In relation to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), Ch 2 of the Biodiversity SEPP seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation. The parties advise, and I am satisfied that:

1. The portion of the site zoned B4, SP2 and R1 has been certified under Pt 8 of the Biodiversity Conservation Act 2016 (BC Act). In accordance with s 8.4(3) of the BC Act, a consent authority is not required to take into consideration the likely impact on biodiversity of the development carried out on the land;

2. The amended DA seeks to remove trees located within the certified land area to accommodate the proposed road works and infrastructure. Land which is within the RE1 zone is non-certified land. No trees are proposed to be removed from this area under the DA;

7. In relation to State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), the parties advise that the DA was referred to Transport for NSW (Sydney Trains) (TfNSW) under s 2.98 of the Transport and Infrastructure SEPP. TfNSW provided proposed conditions which are contained at Attachment 5 of Annexure A of the s 34 agreement. TfNSW also provided additional recommendations relating to the design of the proposed road intersection which are contained at Attachment 6 of the s 34 agreement.

8. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), s 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise, and I am satisfied that:

1. The Site Contamination Report prepared by EI Australia Pty Ltd dated 8 December 2022 recommended that a remediation action plan (RAP) be prepared and implemented outlining the remedial requirements for the asbestos impacted fill identified at one of the testing locations and that surplus soil and sediment be removed from the site;

2. A RAP accompanies the DA setting out the process for remediation and validation works to guide remedial activities for the identified contaminated soil at the site and to comply with requirements of the Resilience SEPP.

3. A condition of consent is imposed that approves the RAP.

9. The parties submit, and I am satisfied, that the DA as amended has taken into consideration the relevant provisions in the Edmondson Park South Development Control Plan 2012 and the Liverpool Development Control Plan 2008 such that the controls in those chapters are met or if they are not met, they achieve the objectives of those controls as required under s 4.15(3A)(b) of the EPA Act.

12. The parties submitted that deferred development consent be granted for DA-458/2022 pursuant to s 4.16(3) of the EPA Act to allow for civil engineering plans listed in Condition 1(b) of Part B of the development consent to be amended by the applicant to be consistent with the approved subdivision design shown in Condition 1(a) of Part B of the development consent.

13. The issue of the acquisition by Council of land for a local road through the RE1 zoned land was raised by the parties. The area of RE1 zoned land is not bio-certified and the route of the local road (McDonalds Road) is under review by Council, given also the road’s potential impact on the riparian area within the RE1 zone. The local road cannot be built until Maxwell Creek within the RE1 area is realigned.

14. Council submitted that it may be necessary for the applicant to carry out a revised traffic impact assessment if Council decides not to build McDonalds Road through the RE1 area. The parties have submitted that:

“A further development application or modification application to the DA or Concept Plan Approval will deal with the formal deletion or construction of the road once its future is better known. The parties agree that this amendment is not inconsistent with the Concept Plan Approval”.

15. Having considered the advice of the parties provided above at [11]-[13], I am satisfied that:

1. The applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b)–(e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been so satisfied; and

3. Approval of the proposed development is in the public interest.

16. Further, 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.

17. 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.

18. 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.

19. The Court notes that:

1. The respondent has approved, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant amending the Development Application No. DA-458/2022 to rely upon the following amended plans and documents (Amended Development Application):

Drawing No and Revision		Title	Prepared by	Date
Engineering Plans
1	Enspire Solutions Pty Ltd
		Drawing No. 220096-0021, Revision 5	Subdivision Plan	12/7/2023
		Drawing No. 220096-0022, Revision 3	Subdivision Plan – Site Sections
	Drawing No. 220096-0023, Revision 4	Subdivision Plan – Temporary Works

2. The applicant filed the Amended Development Application with the Court on 17 July 2023.

20. The Court orders:

1. The appeal is upheld.

2. Development Application DA-458/2022 for the subdivision of land into four super lots including construction of public roads, tree removal, stormwater drainage and associated site works on land legally described as Lot 25 and Lot 26 in DP228850 and known as 164 and 170 Croatia Avenue, Edmondson Park NSW 2174, is determined by the grant of deferred development consent, subject to the conditions at Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 03 August 2023