The Globe Property Group Pty Ltd v Liverpool City Council

[2024] NSWLEC 1830

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Globe Property Group Pty Ltd v Liverpool City Council [2024] NSWLEC 1830

Hearing dates:

Conciliation conferences on 4 October 2024 and 4 November 2024

Date of orders:

20 December 2024

Decision date:

20 December 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA-985/2020, for the subdivision to create 119 Torrens title lots, with associated works including remediation, demolition of existing structures, civil infrastructure, landscape works and utilities servicing at premises known as 43, 45 and 47 Kelly Street, Austral subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – Torrens title subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 7

Environmental Planning and Assessment Act 1979, ss 4.46, 8.7

Fisheries Management Act 1994, Pt 7

Land and Environment Court Act 1979, s 34

Roads Act 1993, s 18

Rural Fires Act 1997, s 100B

Sydney Water Act 1994, s 78

Water Management Act 2000, s 91E

Environmental Planning and Assessment Regulation 2000, cl 55

Environmental Planning and Assessment Regulation 2021

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

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, cll 2.6, 2.7, 4.1, 4.1AA, 4.1AB, 4.1B, 5.9, 6.1

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

State Environmental Planning Policy 55 – Remediation of Land, cl 7

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River

Category:

Principal judgment

Parties:

The Globe Property Group Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/198835

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application No. DA-985/2020 (DA) for the staged subdivision of three lots into 119 lots including demolition of existing structures, tree removal, earthworks, construction of roads, de-watering of dams, remediation works and servicing works at 43, 45 and 47 Kelly Street, Austral (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 October and 4 November 2024. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg 2000) to the Applicant amending Development Application No. DA-985/2020 in accordance with the documents listed at below (amended DA). The EPA Reg 2000 applies due to lodgement date of the DA and savings provisions in Environmental Planning and Assessment Regulation 2021.

• The documents contained from tab PP to tab AAA, within Volume 3 and 4 to the Class 1 Appeal filed with the Court on 29 May 2024.

• Revised Remediation Advice letter, prepared by Sydney Environmental Group, dated 3 October 2024.

• Amended RFS Turning Heads Plan, prepared by North Western Surveys, dated 4 October 2024.

• Biodiversity Development Assessment Report, prepared by Kingfisher Urban Ecology and Wetlands, dated 13 November 2024.

• Arboricultural Impact Assessment & Tree Protection Plan, prepared by Vertical Tree Management & Consultancy, dated 14 November 2024.

4. At the conciliation conference, the parties reached 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 for the amended DA and granting development consent subject to conditions.

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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 Prerequisites

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

8. I am satisfied that owner’s consent accompanied the DA (Tabs N, O and P of the Class 1 Application). The DA was lodged to the Respondent on 25 November 2020. The Respondent notified the DA between 3 November 2023 to 1 December 2023. No submissions were received.

9. The amended DA is integrated development pursuant s 4.46 of the EPA Act in relation to s 100B of the Rural Fires Act 1997 and s 91E of the Water Management Act 2000. Both authorities have issued General Terms of Approval (GTA) which have been included in their entirety in the conditions of consent at Annexure A.

10. The site is also mapped as bushfire prone land. I accept the parties’ agreement that the provisions are met based on the suite of Bushfire Assessment Reports prepared over the life of the DA that support the Class 1 appeal, GTA’s from the Rural Fire Services and as set out at paragraphs 34-37 of the jurisdictional statement.

11. I accept the parties’ agreement that the proposed roads are categorised as local access roads that will connect to existing local roads. Accordingly, a referral pursuant to s 18 of the Roads Act 1993 is not required.

12. In accordance with s 78(2) of the Sydney Water Act 1994, I accept the parties’ agreement that the proposed development meets the provisions through a compliance certificate.

Biodiversity Conservation Act 2016

13. The parties agree that the development is unlikely to significantly affect any threatened species pursuant to Pt 7 of the Biodiversity Conservation Act 2016 (BC Act). Due to the lodgement date, The DA is subject to the repealed State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (now State Environmental Planning Policy (Precincts-Western Parkland City) 2021), which received biodiversity certification to retain a certain amount of existing native vegetation across the growth centres. The proposed development includes clearing of existing native vegetation in a non-certified area and therefore requires a Biodiversity Development Assessment Report (BDAR). The amended DA is accompanied by a BDAR prepared by Kingfisher Urban Ecology and Wetlands for the removal of 11 native trees. No tree removal is proposed within Native Vegetation Protection mapped areas. The BDAR concludes that offset ecosystem credits are not required and there will be no impacts to any threatened species of their habitats. Accordingly, I accept the parties’ agreement that the provisions have been considered and satisfied.

Fisheries Management Act 1994

14. The parties set out that the Fisheries Management Act 1994 (the Act) applies. Based on paragraph 30 of the jurisdictional statement, I accept the parties’ agreement that the proposed development is unlikely to significantly affect any threatened species or ecological community pursuant to Pt 7A of the Act.

State Environmental Planning Policy (Sydney Regional Growth Centres) 2006

15. The site is zoned R2 Low Density Residential, E2 Environmental Conservation and E4 Environmental Living under State Environmental Planning Policy (Sydney Regional Growth Centres) 2006 (SEPP (Growth Centres SEPP)). I accept that the proposed development is permissible with consent as set out in paragraphs 9-10 of the jurisdictional statement. I have had regard to the objectives of the zone.

16. Appendix 8 Liverpool Growth Centres Precinct Plan applies to the proposed development. The parties agree and I accept that the preconditions have been satisfied as follows:

1. Clause 2.6 permits subdivision with consent, as sought.

2. Clause 2.7 permits demolition with consent, as sought.

3. Clause 4.1 minimum subdivision lot size does not apply to the R2 zone. Land zoned E2 and E4 requires a minimum of 2,500m². The smallest proposed subdivision is 4,659m².

4. Clause 4.1AA subdivision resulting in lots between 225-300m² applies to R2 zone land and is met on the basis of the submitted building envelope plans for the relevant lots identified at paragraph 11 of the jurisdictional statement.

5. Clause 4.1AB minimum lot sizes for residential development in R2 applies to the lots that do not rely on cl 4.1AA, with a minimum lot size of 300m² and dependent on the residential density per hectare. There are no proposed lots smaller than 300m² except where specified directly above.

6. Clause 4.1B in relation to minimum residential density of 15 dwellings per hectare is met, as the proposed density is 20.3 dwellings per hectare.

7. Clause 5.9 in relation to preservation of trees or vegetation applies. The parties agree that the proposed tree removal is consistent with the provisions.

8. Clause 6.1 public utility infrastructure applies. I accept the parties’ agreement that Endeavour Energy has provided concurrence and that adequate arrangements have been made as detailed at paragraph 11 of the jurisdictional statement for services not currently available in relation to water and sewerage.

State Environmental Planning Policy 55 – Remediation of Land

17. Due to the lodgement date of the DA and savings provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 does not apply and the now repealed (State Environmental Planning Policy 55 – Remediation of Land) SEPP 55 applies instead. The amended DA is accompanied by Stage 1 Preliminary and Stage 2 Detailed Site Investigation and Remediation Action Plan (RAP) prepared by GeoEnviro Consultancy Pty Ltd, and peer review by Sydney Environmental Group dated 3 October 2024. The reports found that the contamination can be remediated, and the site made suitable for residential use. Condition 67 of Annexure A requires the recommendations of the RAP to be implemented. Accordingly, the parties agree and I accept that the provisions of cl 7 of SEPP 55 have been adequately satisfied.

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

18. The now repealed State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) applies to the DA due to the lodgement date of the DA. On the basis of the information set out at paragraphs 17-21 of the jurisdictional statement, I accept the parties’ agreement that the proposed tree removal is consistent with the provisions and does not include any removal on land mapped for Native Vegetation Protection. Further, the parties agree and I accept that the tree removal in the R2 zoned land has been biodiversity certified as part of the Growth Centres SEPP.

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River

19. The now repealed Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River applies to the DA due to its lodgement date. The parties have identified the provisions for consideration, which I accept have been adequately considered by the parties as set out in paragraphs 22-24 of the jurisdictional statement.

Conclusion

20. 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.

21. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

22. 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.

Orders:

23. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application DA-985/2020, for the subdivision to create 119 Torrens title lots, with associated works including remediation, demolition of existing structures, civil infrastructure, landscape works and utilities servicing at premises known as 43, 45 and 47 Kelly Street, Austral subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

Annexure A

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Decision last updated: 20 December 2024