The Silver Arc Dreamscapes Pty Ltd trading as Dreamscape Architects v Liverpool City Council

[2021] NSWLEC 1491

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Silver Arc Dreamscapes Pty Ltd trading as Dreamscape Architects v Liverpool City Council [2021] NSWLEC 1491

Hearing dates:

Conciliation conference held on 5, 19 & 26 July and 2 & 11 August 2021

Date of orders:

26 August 2021

Decision date:

26 August 2021

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Court orders that:

(1) Pursuant to Section 8.15(3) of the EP&A Act, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum of $7,500.00, within 28 days of the making of orders disposing of these proceedings.

(2) The appeal is upheld.

(3) Development Application DA-538/2019 for the construction of a 4-storey shop-top housing development with at-grade and basement parking comprising 2 retail units and 12 residential units, and the construction of a specialised retail premises with at-grade and basement parking at 619-621 Hume Highway, Casula is approved, subject to the conditions contained in the annexure marked “A”.

Catchwords:

DEVELOPMENT APPLICATION – shop-top housing – showrooms – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s34AA Liverpool Local Environmental Plan 2008, cll 4.3, 4.4, 5.21, 7.7, 7.31, 7.22(3)(4)

State Environmental Planning Policy No 55 – Remediation of Land, cl 7(1)

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6

State Environmental Planning Policy (Infrastructure) 2007, cl 100(2).

Texts Cited:

Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, (April 2021)

Category:

Principal judgment

Parties:

The Silver Arc Dreamscapes Pty Ltd trading as Dreamscape Architects (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
C Campbell (Solicitor) Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2021/110883

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of Development Application DA-538/2019. The original application sought consent for the construction of a 4-storey shop-top housing development with at grade and basement parking comprising 2 retail units and 12 residential units and the construction of a bathroom and kitchen showroom with at grade and basement parking at 619-621 Hume Highway, Casula.

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 5 July 2021. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 1 April 2021, the matter was conducted by Microsoft Teams and a site view was not undertaken.

4. After discussion held during the initial conciliation conference, the applicant prepared amended plans that changed the design of the building in response to the contentions and suggestions of the Council. As a result of the changes made and additional information submitted for consideration, at the subsequent conciliation conference the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to the amended proposal subject to conditions.

5. The plans now before the Court propose the construction of a 4-storey shop-top housing development with at-grade and basement parking comprising 2 retail units and 12 residential units fronting Pine Road, and the construction of a specialised retail premises fronting the Hume Highway with at-grade and basement parking.

6. The application was formally amended by lodgement on the NSW Planning Portal on 17 August 2021.

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

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, the Parties agree, and I am satisfied, Liverpool Local Environmental Plan 2008 (LEP) is the relevant environmental planning instrument. The site is zoned B6 Enterprise Corridor, and the amended proposal is permissible with consent in of the zone.

10. The proposed building height is less than the maximum prescribed in cl 4.3 of the LEP. That development standard provides for a maximum building height of 15.0m.

11. The proposal also complies with the development standards for floor space ratio (0.75:1) specified in cl 4.4 of the LEP.

12. Consent is not required for works pursuant to the provisions of cl 7.7(2) of the LEP nor is an acid sulphate management plan required under subclause (3) in accordance with the findings of investigations conducted on behalf of the applicant and detailed in a report prepared by Sydney Environmental Group dated 26 June 2021.

13. I am satisfied that adequate consideration has been given to those matters that relate to Earthworks and detailed in cl 7.31(3) of the LEP has been given and conditions of consent are appropriate to have regard to those provisions.

14. The site is not identified on the Flood Planning Map to which cl 5.21 applies and is not listed as an Item of Environmental Heritage.

15. Clause 7.22(3) of the LEP is in the following form:

Except as provided by subclause (4), development consent must not be granted to development for the purposes of a dwelling unless the dwelling is at least 50 metres from any boundary of the land that adjoins a classified road.

16. As the site has frontage to the Hume Highway, a classified road, any dwelling must be at least 50m from that road. The plans accord to this control with all dwellings within the shop-top housing development to the north of the 50m line as it applies to the site.

17. An assessment of the likelihood of contamination has been conducted in the form of a Preliminary Site Investigation. That report, dated April 2019 and prepared by Martens Consulting Engineers, concludes the site can be made suitable for the proposed residential use. Accordingly, I am satisfied that the application is consistent with the provisions of State Environmental Planning Policy No 55 – Remediation of Land as required under cl 7 of the Policy.

18. The proposal is a BASIX affected development pursuant to the provisions of cl 6 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. A BASIX certificate has been provided consistent with this policy.

19. As the site has frontage to the Hume Highway, the provisions of State Environmental Planning Policy (Infrastructure) 2007 apply. As no vehicular access is to be obtained from the highway the terms of cl 100(2) are met through the provision of alternate vehicle access off Pine Road. The acoustic considerations under cl 102 of that policy are also met through implementation of the recommendations of an Acoustic Report dated June 7, 2019 and prepared by Acoustic, Vibration & Noise Pty Ltd. Those recommendations have been incorporated into the agreed consent conditions.

20. The evidence of the Council is that there are no inconsistencies with relevant provisions of the relevant Development Control Plan. I accept that submission.

21. 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.

22. 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, including any submissions it received in response to notification of the application.

23. Accordingly, I am satisfied that the proposal is in the public interest.

24. 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.

25. The Court orders that:

1. Pursuant to Section 8.15(3) of the EP&A Act, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum of $7,500.00, within 28 days of the making of orders disposing of these proceedings.

2. The appeal is upheld.

3. Development Application DA-538/2019 for the construction of a 4-storey shop-top housing development with at-grade and basement parking comprising 2 retail units and 12 residential units, and the construction of a specialised retail premises with at-grade and basement parking at 619-621 Hume Highway, Casula is approved, subject to the conditions contained in the annexure marked “A”.

…………………..

Sue Morris

Acting Commissioner of the Court

Annexure A (904064, pdf)

Architectural Plans (13168538, pdf)

Landscape Plans (15729418, pdf)

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Decision last updated: 26 August 2021