Sangari v Liverpool City Council

[2021] NSWLEC 1116

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sangari v Liverpool City Council [2021] NSWLEC 1116

Hearing dates:

Conciliation held on 26 February 2021

Date of orders:

9 March 2021

Decision date:

09 March 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development application no. 392/2018, for the construction of a residential flat building comprising twenty-four (24) apartments over two (2) basement levels with parking for forty-three (43) vehicles, at 6-8 Wanganella Street, Miller (being Lots 27 & 28 DP 221267) is approved in accordance with the plans and documents listed at Condition 1 in Annexure B and subject to the conditions in Annexure B.

(3)   Each party is to pay its own costs.

Catchwords:

DEVELOPMENT APPLICATION – construction of a residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 2.3, 7.31

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 29

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Texts Cited:

Liverpool Development Control Plan 2008

Category:

Principal judgment

Parties:

Ghazi Sangari (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Matthews (Solicitor) (Applicant)
L Steer (Solicitor) (Respondent)

Solicitors:
Colin Biggers & Paisley (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2020/239511

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 392/2018 by Liverpool City Council (hereafter the Council) which seeks demolition of existing structures and construction of a five-storey residential flat building comprising 24 apartments with two basement levels on Lots 27 and 28 DP 221267, also known as 6-8 Wanganella Street, Miller (hereafter the site).

2. The amended Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to the parties’ request for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 26 February 2021, without an onsite view and by Microsoft Teams.

4. Based on the amended plans (listed in Annexure B), together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 392/2018 with conditions.

5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to be satisfied of the requirements in s 4.15(1) to grant consent to DA 392/2018, with conditions, as described in Annexure B.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings for the Court’s consideration as consistency with the: State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment (GMREP); Liverpool Local Environmental Plan 2008 (LLEP); and the Liverpool Development Control Plan 2008 (LCDCP).

7. The parties agree that the proposed development complies with the provisions of SEPP 55. The Council has assessed that the site as being used historically for residential purposes and agrees that the site is suitable for the proposed development, which is also addressed in the conditions of consent, thereby satisfying the requirements of cl 7 of the SEPP 55.

8. The proposed development, as a residential flat building (RFB), is required to comply with the provisions of the SEPP 65. The amended DA is supported by a Design Verification Statement, which is described in the conditions of consent. The parties agree that the requirements of SEPP 65, including cl 29 are addressed by the amendments shown in plans that relate to the proposed development.

9. The proposed development is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate relevant to the proposed development is identified in the conditions of consent, provided in compliance with the SEPP BASIX provisions.

10. The parties agree that Part 2 of the GMREP applies to the proposed development on this site. The parties agree that the relevant principles, outcomes and objectives of the GMREP are addressed by the proposed development, and specifically as they relate to the discharge to Georges River.

11. The proposed development on the site is located within the R4 High Density Residential zone, as identified in the LLEP. The proposed development is permissible and satisfies the objectives of this zone. The parties agree that the relevant provisions of the LLEP are addressed to their satisfaction. The relevant contentions are resolved by the DA’s amended plans and supporting documents, and conditions of consent.

12. The parties agree that the proposed development requires earthworks, subject to the provisions of cl 7.31 of the LLEP. The parties explain that there is no detrimental effect on existing (subsurface) drainage patterns and soil stability from the proposed works. Therefore, the requirements of cl 7.31(3) are achieved.

13. The parties agree that the DA was publicly notified in accordance with the LCDCP. During the notification period for this DA under appeal, three submissions in objection were received by Council.

14. The parties advise the Court that the amended plans that support the DA have been considered in the context of the site and surrounding area. Based on the amended plans and supporting documents to the DA, the contentions raised by Council, issues by residents, and all jurisdictional requirements are resolved to the satisfaction of the parties.

15. The parties advise the Court that they have undertaken the appropriate merit assessment of the amended DA, and which they are satisfied resolves the contentions, as raised.

16. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 392/2018 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA 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. The Court orders that:

1. The appeal is upheld.

2. Development application no. 392/2018, for the construction of a residential flat building comprising twenty-four (24) apartments over two (2) basement levels with parking for forty-three (43) vehicles, at 6-8 Wanganella Street, Miller (being Lots 27 & 28 DP 221267) is approved in accordance with the plans and documents listed at Condition 1 in Annexure B and subject to the conditions in Annexure B.

3. Each party is to pay its own costs.

…………………………

Sarah Bish

Commissioner of the Court

Annexure B (332564, pdf)

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Decision last updated: 09 March 2021