Starwood Homes - Star 1 Pty Ltd v Liverpool Council

[2022] NSWLEC 1529

Land and Environment Court

New South Wales

Medium Neutral Citation:

Starwood Homes – Star 1 Pty Ltd v Liverpool Council [2022] NSWLEC 1529

Hearing dates:

Conciliation conference held on 20 September 2022

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

(1)   The appeal is upheld.

(2)   Development consent is granted to development application DA-1105/2021 as amended, for the demolition of existing structures, site remediation, staged subdivision of existing allotment to Torrens Title subdivision of 69 residential lots, associated tree removal, civil works and road construction at 115 Gurner Avenue, Austral subject to the conditions of consent in Annexure A.

Catchwords:

Conciliation conference – agreement between the parties – residential subdivision

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2021

Land and Environment Court Act 1979 s34;

State Environmental Planning Policy (Precincts – Western Parkland City) 2021 cl 3.2, 3.5, Appendix 4 cll 4.1, 4.1AA, 4.1B, 5.9, 5.10, 6.1

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

State Environmental Planning Policy (Sydney Regional Growth Centres) 2006

State Environmental Planning Policy No 55 – Remediation of Land cl 4.6

Texts Cited:

Liverpool Growth Centre Precincts Development Control Plan 2021

Category:

Principal judgment

Parties:

Starwood Homes – Star 1 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

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

Solicitors:
Mills Oakley (Applicant)
Liverpool City Council (Respondent)

File Number(s):

340586/2021

Judgment

1. COMMISSIONER: Development Application DA-1105/2021 was lodged with Liverpool City Council on 23 September 2021 seeking consent for demolition of existing structures, site remediation and staged subdivision of the existing allotment into a Torrens Title subdivision of 73 residential lots, including tree removal, earthworks, construction of new roads and drainage infrastructure.

2. The Council had not determined the application within the prescribed period and the applicant is appealing its deemed refusal pursuant to the provisions of s8.7 of the Environmental Planning and Assessment Act 1979 (EP&AAct).

3. The applicant has prepared amended plans in response to the Council’s Statement of Facts and Contention filed on 14 January 2022. Those plans (amended application) were lodged on the NSW Planning Portal on 6 July 2022 with the applicant granted of leave to rely on those plans by the Court on 7 July 2022. Together with a package of additional information, the parties agree that the contentions have been resolved and have entered into an agreement pursuant to the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act).

The proposal

4. The amended application proposes:

1. Consolidation of lots to provide a larger area for flood storage on the site resulting in an amendment to the proposed staging of the development;

2. Amendment to lot sizes and reconfiguration of battle-axe lots resulting in reduction of lot total from 73 to 69 lots and subsequent change to proposed staging being:

1. Stage 1 – creation of 65 residential allotments and 2 residue lots for temporary on-site detention (OSD) and future subdivision;

2. Stage 2a – decommissioning of temporary OSD and associated infrastructure of 1 residue lot including residential subdivision of lot into 2 residential lots;

3. Stage 2b – decommissioning of temporary OSD and associated infrastructure of remaining 1 residue lot including residential subdivision of lot into 2 residential lots.

3. Provision of a Restriction as to user requiring single storey dwellings on central battle axe lots to address solar access concerns for adjoining lots.

5. In addition, the applicant has filed a package of documents that address the contentions. These include:

1. Details showing road connections to neighbouring development at 125 Gurner Avenue, Austral to address the Indicative Layout Plan (ILP) for the precinct and approved development for that land;

2. Updated stormwater report,

3. Detailed Site Investigation;

4. Air Quality Assessment;

5. Updated density plan;

6. Updated Building Envelope plan;

7. Civil engineering details.

The site and locality

6. The subject site is legally known as Lot 12 DP 3403, being 115 Gurner Avenue, Austral, is rectilinear in shape and has a total area of 39,490m² or 3.949 hectares.

7. The site has frontages to Gurner Avenue of 100.36 metres and a depth of 392 metres and falls from the west to the east of approximately 2.5 metres.

8. A residential dwelling and associated structures including sheds and garages currently stand on the land and would be demolished to facilitate the subdivision.

9. Vegetation and established trees are located sporadically across the site. Approximately 85% of the site is mapped as bushfire prone land.

10. The locality is characterised by small scale agricultural uses and rural residential living which is being transitioned into low density residential subdivisions. A future industrial area is proposed to the south west of the site. There is an existing educational establishment to the east of the site and land reserved for another future educational establishment further east of this. There is a Transgrid electricity substation located approximately 350 metres to the north of the site.

The contentions

11. The original contentions were detailed in the Statement of Facts and Contentions filed with the Court on 14 January 2022.

12. These are summarised as follows:

• Non-compliance with the ILP;

• Insufficient information provided in relation to the proposed battle-axe allotments;

• Insufficient information in relation to odour impacts;

• Insufficient information in relation to Contamination and Salinity;

• Insufficient information in relation to road and stormwater design;

• Insufficient information in relation to flooding;

• The necessary approvals under s 100B of the Rural Fires Act 1997 (RFA Act) had not been obtained

• The views of Western Sydney Parkland Trust in relation to the adjacent Cecil Park had not been obtained;

• Insufficient information in relation to essential services.

Planning controls

13. When the development application was lodged, the provisions of State Environmental Planning Policy (Sydney Regional Growth Centres) 2006 (Growth Centres SEPP) were in force.

14. On 1 March 2022, the Growth Centres SEPP was repealed, and its provisions transferred to State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Precincts WP SEPP).

15. The parties agree that Chapter 2 of Precincts WP SEPP applies to the land because the chapter applies to all land in a “growth centre” (cl 3.5), a “growth centre” includes the South West Growth Centre with boundaries as shown on the South West Growth Centre Precinct Boundary Map (cl 3.2) (Map) and the land is within the Map’s Sheet PCB_007 (Leppington North Precinct).

16. I accept that submission.

17. Appendix 4 to the Precincts WP SEPP applies to the Liverpool Growth Centres Precinct Plan and includes relevant planning controls. The site is zoned R2 Low Density Residential and I accept the submission of the parties that the proposal would be consistent with the objectives of that zone. The proposal is permissible with consent.

18. Whilst there is no minimum allotment size for subdivision pursuant to the map referred to in cl 4.1, the terms of cl 4.1AA applies and is in the following form:

4.1AA Subdivision resulting in lots between 225–300m2

(1) This section applies to land in the following zones—

(a) Zone R2 Low Density Residential,

(b) Zone R3 Medium Density Residential.

(2) Development consent maybe granted to the subdivision of land to which this section applies resulting in the creation of a lot that has an area of 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 the lot.

(3) This section does not apply to a subdivision that is the subject of a development application under section 4.1AD(2)(b), 4.1AE(2)(b) or 4.1AF.

19. The applicant has prepared plans that show the required building envelope and the agreed conditions of consent reflect those plans.

20. Clause 4.1B dictates the density of any residential development is no tot be less that the density established by the Residential Density Map and that map shows a density for the site of 15 dwellings/per hectare. The site has a total area of 3.93 hectares and the proposal is for 69 dwellings so is compliant with that provision.

21. The application seeks consent for tree removal consistent with the provisions of cl 5.9.

22. Condition of consent 113 has been imposed to ensure the terms of cl 5.10(10) are met and I am satisfied, based on the documentation provided and the terms of the condition that the provisions of that clause can be met.

23. Clause 6.1 relates to the availability of public utility infrastructure and consent cannot be granted unless the consent authority 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. Having regard to the evidence, documentation provided and consent conditions, I am satisfied that the necessary services for the site will be available prior to release of the subdivision certificate.

24. When the development application was lodged, the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) were in force. On 1 March 2022, SEPP 55 was repealed, and its provisions transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (R&H SEPP). This requires a consent authority to consider is the land is contaminated and if it is, to be satisfied that the land is suitable for the purpose for which the development is proposed (cl 4.6).

25. Having regard to the documentation provided, in particular, the Detailed Site Investigation dated March 2022 prepared by Compliance Health & Environmental Consulting and the conditions of consent, I am satisfied the site can be made suitable for residential use.

26. The Liverpool Growth Centre Precincts Development Control Plan 2021 (DCP) applies to the land and the parties agree that the application can be approved having regard to the provisions of that plan. I accept that submission.

Conclusion and findings

27. Having regard to the applicant's explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council. The proposed development is permissible and consistent with all relevant environmental planning instruments and development control plans.

28. There are not any other matters contained in the Environmental Planning and Assessment Regulation 2021 that prevent grant of consent.

29. The Rural Fire Service issued General Terms of Approval on 25 March 2022 and those requirements have been included in the agreed conditions of consent (condition 3).

30. National Parks and Wildlife has recommended the imposition of conditions to ensure the development will not adversely impact Cecil Park. I accept the recommendations and note the requirements have been incorporated as agreed condition 2.

31. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable, and that the site is suitable for the development as proposed.

32. The application was notified in accordance with the Council’s notifications policy and no submissions were received.

33. Having regard to the evidence available, I am satisfied the application would be in the public interest and that the site is suitable for the proposed development subject to compliance with the agreed conditions of consent.

34. 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.

35. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 EP&A Act.

36. For these reasons, I am satisfied that consent should be granted.

37. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application DA-1105/2021 as amended, for the demolition of existing structures, site remediation, staged subdivision of existing allotment to Torrens Title subdivision of 69 residential lots, associated tree removal, civil works and road construction at 115 Gurner Avenue, Austral subject to the conditions of consent in Annexure A.

.…………………………

S Morris

Acting Commissioner of the Court

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Annexure A 

Decision last updated: 28 September 2022