The Square Ozland Pty Ltd v Liverpool City Council

[2023] NSWLEC 1570

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Square Ozland Pty Ltd v Liverpool City Council [2023] NSWLEC 1570

Hearing dates:

Conciliation conference on 11 July and 8 September 2023.

Date of orders:

29 September 2023

Decision date:

29 September 2023

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to Development Application DA-1120/2021 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application DA-1120/2021 for staged residential subdivision of 1 existing lot to create 23 Torrens title lots and 2 residue lots, integrated housing comprising construction of 9 attached dwellings and 4 semi-detached dwellings, demolition of existing dwellings, associated tree and vegetation removal, associated remediation and bulk earthworks, and associated civil works including construction of a temporary on-site detention basin, stormwater drainage, new roads and installation of services at 85 Thirteenth Avenue, Austral being the whole of the land in Lot 634 DP 2475, and with minor works on 75 Thirteenth Avenue, Austral being the whole of the land in Lot 6332 DP 1263964, subject to conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – staged residential subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 4.46, 4.47, 8.7, 8.11, 8.15

Environmental Planning and Assessment Regulation 2021, Sch 6, Pt 1, s 3

Environmental Planning and Assessment Regulation 2000, cl 55

Interpretation Act 1987, s 30A

Land and Environment Court Act 1979, ss 17, 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 9, ss 1.4, 9.4

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

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No. 55 – Remediation of Land

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, s 1.4, Appendix 4, ss 1.2, 2.2, 2.6, 2.7, 4.1, 4.1AA, 4.1A, 4.1B, 4.3, 5.1, 5.10, 6.1

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 1.4, 4.6

State Environmental Planning Policy (Sydney Regional Growth Centres) 2006

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 1.4, Ch 2

State Environmental Planning Policy Amendment (Water Catchments) 2022, s 6.65

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997)

Category:

Principal judgment

Parties:

The Square Ozland Pty Ltd ABN 77649285236 (Applicant)
Liverpool City Council ABN 84181182471 (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/112057

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal from Liverpool City Council’s (Council) deemed refusal of Development Application DA-1120/2021 lodged on 5 October 2021 (DA) which seeks consent for the demolition of the existing structures and a staged Torrens title subdivision of the existing lot into 23 residential lots and 2 residue lots and construction of 11 attached dwellings, 2 semi-detached dwellings, 5 secondary dwellings and 1 studio dwelling including removal of vegetation, dam dewatering, remediation, earthworks and associated civil works at 85 Thirteenth Avenue Austral being the whole of the land in Lot 634 Deposited Plan 2475 (Principal Site) and 75 Thirteenth Avenue Austral being the whole of the land in Lot 6332 Deposited Plan 1263964 (Secondary Site).

1. The proceedings were filed on 6 April 2023 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), and in accordance with the time provisions in s 8.11(1) of the EPA Act (noting that additional information was requested by the Council on 21 December 2021, 3 May 2022, 21 June 2022, 10 August 2022 and 1 February 2023. After each request the Applicant provided further information).

2. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is s 4.16(1)(a) of the EPA Act.

2. The proposed staging in the DA is as follows:

1. Stage 1: residential subdivision of 1 existing lot to create 10 front loaded Torrens title lots (Lots 1-10) and 3 residue lots (Lots 11-13), road construction and associated works (Stage 1);

2. Stage 2: residential subdivision of residue Lot 13 to create 13 front and side loaded Torrens Title lots (Lots 11-23) with a component of integrated housing comprising the construction of 9 detached dwellings and 4 semi-detached dwellings (Stage 2).

3. As the DA was lodged prior to 1 March 2022 (being lodged on 5 October 2021) the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) continues to apply by operation of the savings provision in Pt 1 of Sch 6 (s 3 (1)(1)) to the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021).

4. The Principal Site is rectangular in configuration with a frontage of 80.465m along Thirteenth Avenue and a depth of 150.805m, giving a total area of approximately 1.21ha. The Principal Site topography is predominately level with variation across the block between 1 and 2 metres AHD. Below is an aerial of the Principal Site taken from Council’s Statement of Facts and Contentions p 4 filed 8 May 2023:

5. Owner’s consent was given to the Council for lodgement of the DA – Tab 1 of the Class 1 Application in relation to the Principal Site. Note that in the aerial photograph above, 85 Thirteenth Avenue has a common boundary with 75 Thirteenth Avenue, Austral.

6. The DA includes stormwater infrastructure works and the removal of some trees along the north-eastern boundary with a portion of the works over the adjoining property being 75 Thirteenth Avenue (the Secondary Site). Owner’s consent was given to the Council for these works (Tab 3 of the s 34 Agreement Bundle).

7. The Court arranged a conciliation conference under s 34(1) of LEC Act between the parties, which was held on 11 July 2023, and 8 September 2023. I presided over the conciliation conference.

8. During the conciliation conference, the Council agreed to the Applicant filing amended plans in accordance with cl 55 of the EPA Regulation 2000. In accordance with Sch 6 Pt 1 s 3(2) of the EPA Regulation 2021, it is not necessary for the amended plans to be uploaded to the NSW Planning portal. The main amendments to the DA are:

1. Reduction in one residential lot and associated adjustments to various lot boundaries as a result;

2. Reconfiguration of Lots 9 and 10 to increase the size of Lot 10 due to its irregular shape which was created by the road network;

3. Removal of ‘C’ laneway (Road 4);

4. Amendments to bulk earthworks and new terraced retaining walls at the rear of Lots 11-15 resulting from the removal of the ‘C’ laneway;

5. Retention of 5 additional trees along northern boundary in Lot 25;

6. Removal of rear garages to ensure all dwellings are provided with access from the front of the Lot;

7. New inlet headwall to existing gully at northeast boundary of the site with a portion over the Secondary Site;

8. Stormwater culverts amended;

9. Lot widths of Lots 5-8 have been revised to facilitate an alternating 9m and 10m lot width subdivision pattern;

10. Building façade line for dwellings on Lots 18–23 have been brought forward to achieve the front setback control for garages at 1m behind the building line;

11. Temporary hammerhead turning facility within Lot 22 to accommodate safe passage of Council’s waste collection vehicle access;

12. Additional details for all retaining walls and fences proposed;

13. Sloping towards the rear boundary introduced to Lots 18-23 to reduce height and extent of retaining walls;

14. Steps added to the rear of Lot 17 to allow gradual transition;

15. Landscaping now proposed around temporary stormwater basin;

16. Front entrances brough forward (Lots 11-13 and 19-23).

9. The amended plans are listed in par [14] below. 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 and granting consent pursuant to s 4.16(1)(a) of the EPA Act subject to the conditions in Annexure A pursuant to s 4.17(1)(a) of the EPA Act.

10. 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. 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 they have been satisfied as set out below:

1. Owner’s consent: the owner gave consent to the lodgement of the DA for the Principal Site (tab 1 of the Class 1 Application). In relation to the Secondary Site, see par [6] above.

2. Notification: between 14 March 2022 and 29 March 2022 the DA was publicly notified. One public submission by way of objection was received which raised:

1. Bushfire concerns;

2. Inconsistencies in the civil engineering plans;

3. Traffic issues with the swept paths;

4. Flooding related concerns.

3. The objector was the owner of the Secondary Site (Western Sydney Parklands) and the parties agree that the concerns of the objector have been met, and as demonstrated by the objector giving owner’s consent to the works on the Secondary Site (see par [6] above).

4. The DA is identified as integrated development pursuant to s 4.46 of the EPA Act as it is identified as bush fire prone land pursuant to the Rural Fires Act 1997 (RFA Act) and therefore requiring a s 100B Bushfire Safety Authority from the NSW Rural Fire Service (RFS). By a letter dated 17 February 2023, the RFS issued General Terms of Approval (incorporated into Annexure A pursuant to s 4.47(3) of the EPA Act), and a Bushfire Safety Certificate pursuant to s 100B of the RFA in respect of the DA.

5. During the assessment of the DA and the course of these proceedings, a number of State Environmental Planning Policies (SEPP) were repealed and their provisions transferred into new SEPPs, with the majority not containing a savings provision:

1. Although cl 30A of the Interpretation Act 1987 (IA 1987) does not apply to Environmental Planning Instrument, each of the consolidated SEPPs contained s 1.4 as follows:

“…section 30A is taken to apply to the provisions transferred to this Policy on the commencement of this Policy in the same way as it applies to provisions transferred from a statutory rule to another statutory rule.”

2. Pursuant to s 30A(2) of the IA 1987, where provisions are transferred, the “transfer does not affect the operation (if any) or meaning of the provision[s], and accordingly the provision is to be construed as if it had not been so transferred”. The new/old SEPPs where applicable have been dealt with below.

6. State Environmental Planning Policy (Precincts–Western Parkland City) 2021 (Western Parklands SEPP). The DA was originally lodged under the provisions of the State Environmental Planning Policy (Sydney Regional Growth Centres) 2006 (Growth Centres SEPP). On 1 March 2022, the Growth Centres SEPP was repealed, and its provisions were transferred to the Western Parklands SEPP. Appendix 4 of the Western Parklands SEPP applies to the assessment of the DA:

1. Section 1.2: Aims of Precinct Plan: the DA is consistent with the aims of the Precinct Plan, particularly:

(e)  to promote housing choice and affordability,

(f)  to provide for sustainable development,

(g)  to promote pedestrian and vehicle connectivity.

2. Section 2.2: Zoning of Land to which Precinct Plan applies: the Site is zoned R2 Low Density Residential, R3 Medium Density Residential and RE1 Public Recreation as shown on the Land Zoning Map. The only works on the RE1 Public Recreation zone land are the permitted flood mitigation works. The proposed DA is consistent with the objectives of all zones, and is permissible with consent in all relevant zones.

3. Section 2.6: Subdivision: subdivision of the Principal Site is permissible with consent.

4. Section 2.7: Demolition: demolition of the existing structures is permissible with consent.

5. Section 4.1: Minimum subdivision lot size: the DA complies with the objectives as follows:

“(a)  to ensure orderly and efficient use of land,

(b)  to ensure a minimum lot size sufficient for development,

(c)  to allow for a range of lot sizes that cater for a diversity of land uses and employment activities.”

6. Minimum subdivision lot size: the Principal Site is not subject to a minimum lot size requirement.

7. Section 4.1AA: Subdivision resulting in lots between 225-300m² applies to the Principal Site. Section 4.1AA(2) provides that if the subdivision of land results in the creation of a lot with an area of less than 300m² (but not less than 225m²) the Council needs to be satisfied that the lot will contain a sufficient building envelope to enable the erection of a future dwelling house. Amended Building Envelope plans have been prepared and submitted with the amended plans showing indicative plans for 4 lots with areas of less than 300m² (Lots 1-4) (Tab 8 of s 34 Agreement Bundle).

8. Section 4.1B: Residential density: the minimum lot sizes for residential development in R2 and R3 Density Residential: the minimum lot size for a dwelling house is 300m² and for semi-detached dwellings 125m². The amended plans propose the subdivision of the existing lot into a variety of lot sizes (between 211.4m² to 500.7m²⁾ thus allowing for the purpose of a mixture of dwelling houses.

9. Section 4.1A(3): minimum lot sizes for secondary dwellings in R2 and R3 Density Residential: the amended plans no longer propose secondary dwellings.

10. Section 4.1B: Residential Density: provides the density of any residential development is not to be less than the density established by the Residential Map, i.e. 25 dwellings/ha for zone R3, and 15 dwellings/ha for zone R2. The dwelling density within zone R3 is 27 dwellings, and within zone R2 is 21 dwellings – both above the minimum requirement (Density Plan Tab 17 of s 34 Agreement Bundle), and complies with the following objectives of s 4.1B:

(a)  to establish minimum density requirements for residential development, and

(b)  to ensure that residential development makes efficient use of land and infrastructure, and contributes to the availability of new housing, and

(c)  to ensure that the scale of residential development is compatible with the character of the precinct and adjoining land.

11. Section 4.3: Height of Buildings: a maximum height of 12m in zone R3 – the proposed dwellings have a compliant maximum height of 10m (Plan DA41 by MPS Architects at Tab 7 of s 34 Agreement Bundle).

12. Section 5.1: Relevant Acquisition Authority: the zone REI land is mapped for acquisition on the Land Reserved for Acquisition Map. Due to the flood prone nature of the Principal Site, permissible flood mitigation works are proposed within the zone RE1 land. Upon completion of the regional basin No. 20, and construction of the downstream drainage infrastructure, the temporary OSD/WSUD basin is to be decommissioned and returned to its predeveloped state to facilitate acquisition by Council for a public open space. The amended plans include landscaping around the temporary basin (Tab 20 of the s 34 Agreement Bundle).

13. Section 5.10: Heritage Conservation: the Principal Site is not mapped within a heritage conservation area, nor is it adjacent to a heritage item, and nor is it identified as an archaeological site.

14. Section 6.1: Public Utility Infrastructure: 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:

1. Sydney Water has confirmed that it is planning to construct the Upper South Creek Advanced Water Recycling (AWRC) and associated trunk infrastructure which will be available FY 2025/2026.

2. Between now and FY 2025/2026, Sydney Water will actively seek opportunities to provide wastewater services above the capped limit and/or ahead of the proposed timescales, where suitable.

3. As the requisite infrastructure will be operational within the 5-year life of the DA, the parties confirm appropriate conditions have been prepared to resolve this issue; and

4. Reference the Sydney Water letter to the Applicant dated 23 June 2022 (Tab 21 of the s 34 Agreement Bundle) which confirmed Sydney Water’s timeline for wastewater servicing of the Principal Site.

5. Conditions in Annexure A have been agreed in relation to the provision of public utility infrastructure.

7. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP): the DA was lodged under the former State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55). On 1 March 2022, SEPP 55 was repealed and its provisions were transferred to the Resilience & Hazards SEPP.

1. Section 4.6 of the Resilience & Hazards SEPP requires a consent authority to be satisfied that appropriate consideration has been given to whether the site is contaminated, the suitability of the site to the proposed development, and whether satisfactory measures are in place to remediate the land should it be required to do so.

2. The Applicant submitted a Combined Stage 1 Preliminary and Stage 2 Detailed Site Investigation (DSI) by Sydney Environmental Group dated 20 July 2021 (Tab 23 of the Class 1 Application). The DSI concludes that the Principal Site has some contamination issues (primarily asbestos) and recommended a Remediation Act Plan (RAP).

3. The Applicant then submitted a RAP by Sydney Environmental Group dated 20 July 2021 (Tab 8 of the Class 1 Application).

4. The RAP outlines the methodology for remediation of the Principal Site to ensure its suitability for the proposed use. The agreed conditions in Annexure A require the development to be carried out in compliance with the RAP. Condition 122 in Annexure A addresses any new contamination identified during construction.

8. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Principal Site:

1. Chapter 2 applies in relation to the removal of vegetation on land within non-rural areas. Part of the Principal Site is zoned R2 Low Density Residential but there is no proposal to remove any of the trees on this part of the land. Therefore Ch 2 does not apply to the assessment of the DA.

2. On 21 November 2022, Chs 7-12 of the BC SEPP were repealed by the State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments Amendment). The Water Catchments Amendment included a savings and transitional provision at s 6.65, which states that “the former provisions continue to apply, and the other provisions of this Chapter do not apply, to an application for development consent lodged, but not finally determined, before the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022”.

3. “Former provisions” mean Ch 6-12 as in force immediately before their repeal by the Water Catchments Amendment. The historical version of the BC SEPP for in force as at 20 November 2022 is saved and continues to apply to the Principal Site.

4. Chapter 9 establishes the framework and aims to protect the environment of the Hawkesbury-Nepean system. In accordance with s 9.4 of the BC SEPP, consideration is to be given to the strategies listed in the Action Plan of the Hawkesbury-Nepean Environmental Planning Strategy. Potential impacts of any significance, resulting from the amended plans, relate to water quality impacts. As a result of the use of onsite detention and water sensitive urban design, the scale of the development proposal is acceptable in terms of the Action Plan and the lessening of negative impacts on downstream riverine ecology.

1. In satisfaction of these measure, the Applicant has filed the following:

1. Soil Salinity Assessment by Sydney Environmental Group dated 24 June 2021 (Tab 12 of Class 1 Application);

2. Waste Management Plan by North Western Surveys Pty Ltd (Tab 6 of Class 1 Application);

3. Demolition Plan by North Western Surveys Pty Ltd dated 11 August 2021 (Tab 15 of Class 1 Application);

4. Updated Concept Stormwater Management Plan prepared by North Western Surveys dated 2 August 2023 (Tab 13 of the s 34 Agreement Bundle); and

5. Amended Concept Engineering Plans by North Western Surveys dated August 2023 (Tab 16 of s 34 Agreement Bundle).

9. State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP):

1. The DA was originally lodged under the provisions of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP). On 1 March 2022, the Infrastructure SEPP was repealed, and its provisions were transferred to Ch 2 of the TI SEPP.

2. Pursuant to the TI SEPP, the DA was referred to Jemena for comment. On 16 March 2022, via the NSW Planning portal, a representative of Jemena confirmed that it has no objection to the DA noting that “the high pressure pipelines are located approximately 312m from the site, and there is no significant change in land use.

10. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP): in compliance with the BASIX SEPP, the Applicant has provided updated BASIX Certificate No 1406487M prepared by RC Energy Consultants Pty Ltd dated 27 July 2023, consistent with the amended plans (Tab 10 of the s 34 Agreement Bundle). Appropriate conditions of consent in Annexure A have been agreed by the parties to ensure compliance with the BASIX Certificate.

11. The parties have agreed on conditions of consent pursuant to s 4.17(1)(a) of the EPA Act, and agree that they are lawful having regard to the EPA Act and relevant legal principles.

12. The parties consider that the approval of the DA does not result in any contravention of the EPA Act, any environmental planning instrument or EPA Regulation. As such the Court may exercise its function under s 4.16(1)(a) of the EPA Act and grant consent to the DA subject to conditions in Annexure A.

11. For the reasons set out above, 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.

12. 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.

13. The Court notes that:

1. Liverpool City Council, as the relevant consent authority has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant carrying out works on 85 and 75 Thirteenth Avenue, Austral and amending Development Application DA-1120/2021 in accordance with the documents below, which were filed with the Court on 15 September 2022:

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Architectural Plans
Cover Page	DA01	28 July 2023	MPS Architects
Context Page	DA02	28 July 2023	MPS Architects
Structure Plan	DA03	28 July 2023	MPS Architects
Sited Structure Plan	DA04	28 July 2023	MPS Architects
Subdivision Plan	DA05	28 July 2023	MPS Architects
Site Plan	DA06	28 July 2023	MPS Architects
Site Plan Lots 11-15	DA07	28 July 2023	MPS Architects
Site Plan Lots16-17	DA08	28 July 2023	MPS Architects
Site Plan Lots18-23	DA09	28 July 2023	MPS Architects
Overall Ground Floor Plan	DA10	28 July 2023	MPS Architects
Overall First Floor Plan	DA11	28 July 2023	MPS Architects
Ground Floor Plan Lots 11-15	DA12	28 July 2023	MPS Architects
First Floor Plan Lot 11-15	DA13	28 July 2023	MPS Architects
Ground Floor Plan Lot 16-17	DA14	28 July 2023	MPS Architects
First Floor Plan Lots 16-17	DA15	28 July 2023	MPS Architects
Ground Floor Plan Lots 18-23	DA16	28 July 2023	MPS Architects
First Floor Plan Lots 18-23	DA17	28 July 2023	MPS Architects
Elevation Lots 11-15	DA18	28 July 2023	MPS Architects
Elevation Lots 18-23	DA19	28 July 2023	MPS Architects
Elevation Lots 11, 15, 18 and 23	DA20	28 July 2023	MPS Architects
Elevation Lots 12, 13, 21 and 22	DA21	28 July 2023	MPS Architects
Elevation Lots 13 and 14	DA22	28 July 2023	MPS Architects
Elevation Lots 14, 15. 19 and 20	DA23	28 July 2023	MPS Architects
Elevation Lots 18 and 19	DA24	28 July 2023	MPS Architects
Elevation Lots 16 and 17	DA25	28 July 2023	MPS Architects
Elevation Lots 16 and 17	DA26	28 July 2023	MPS Architects
Elevation Lots 22 and 23	DA27	28 July 2023	MPS Architects
Site Section	DA28	28 July 2023	MPS Architects
Site Section	DA29	28 July 2023	MPS Architects
Site Section	DA30	28 July 2023	MPS Architects
Site Section	DA31	28 July 2023	MPS Architects
Indicative Perspectives	DA32	28 July 2023	MPS Architects
Indicative Perspectives	DA33	28 July 2023	MPS Architects
Indicative Perspectives	DA34	28 July 2023	MPS Architects
Fencing and Refuse Plan	DA35	28 July 2023	MPS Architects
Overshadowing	DA36	28 July 2023	MPS Architects
Overshadowing	DA37	28 July 2023	MPS Architects
Overshadowing	DA38	28 July 2023	MPS Architects
Overshadowing	DA39	28 July 2023	MPS Architects
Summary of Compliance	DA40	28 July 2023	MPS Architects
Summary of Compliance	DA41	28 July 2023	MPS Architects
Indicative Colours and Finishes	DA42	28 July 2023	MPS Architects
Building Envelope Plan (Lots 1-4)	SK01	27 July 2023	MPS Architects
Overshadowing	SK02	27 July 2023	MPS Architects
Overshadowing	SK03	27 July 2023	MPS Architects
Summary of Compliance	SK04	27 July 2023	MPS Architects
Amended Engineering Plans
Fact Sheet	001	02	27 July 2023	North Western Surveys
Construction Notes	002	00	2 September 2023	North Western Surveys
Sediment and Erosion Control Plan	101	03	21 August 2023	North Western Surveys
Sediment and Erosion Control Notes	102	00	2 September 2023	North Western Surveys
Tree Removal Plan	103	02	27 July 2023	North Western Surveys
Services Plan	201	02	27 July 2023	North Western Surveys
Cut Fill Depth Plan	301	02	27 July 2023	North Western Surveys
Cut Fill Sections A, B, C and D	302	02	27 July 2023	North Western Surveys
Proposed Civil Works	401	02	27 July 2023	North Western Surveys
Typical Road Cross Sections and Details	501	02	27 July 2023	North Western Surveys
Longitudinal Sections Road 1 and Thirteenth Avenue	502	01	4 July 2023	North Western Surveys
Longitudinal Sections Roads 2 and 3	503	01	4 July 2023	North Western Surveys
Overall Catchment Plan – Existing Scenario	701	01	4 July 2023	North Western Surveys
Overall Catchment Plan – Ultimate Scenario	702	02	27 July 2023	North Western Surveys
Internal Catchment Plan	703	02	27 July 2023	North Western Surveys
Longitudinal Sections Drainage Line 01 and 02	704	00	27 July 2023	North Western Surveys
Longitudinal Sections Drainage Line 03, 04, 05, 06 and 07	705	00	27 July 2023	North Western Surveys
Longitudinal Sections Drainage Line 21, 22, 91 and 92	706	00	27 July 2023	North Western Surveys
Basin Catchment Plan	707	01	4 July 2023	North Western Surveys
Basin Typical Details	708	02	27 July 2023	North Western Surveys
Trunk Drainage Detail Plan	709	00	27 July 2023	North Western Surveys
Trunk Drainage Inlet and Outlet Details	710	00	27 July 2023	North Western Surveys
Public Domain Plan	901	02	27 July 2023	North Western Surveys
Swept Path Plan	902	03	24 August 2023	North Western Surveys
Amended Landscape Plans
Title Page/Site Plan	1	C	1 August 2023	Conzept Landscape Architects
Public Domain Plan 1	2	C	1 August 2023	Conzept Landscape Architects
Public Domain Plan 2	3	C	1 August 2023	Conzept Landscape Architects
Landscape Plan 1	4	C	1 August 2023	Conzept Landscape Architects
Landscape Plan 2	5	C	1 August 2023	Conzept Landscape Architects
Landscape Plan 3	6	C	1 August 2023	Conzept Landscape Architects
Details and Specification	7	C	1 August 2023	Conzept Landscape Architects
Sections	8	C	1 August 2023	Conzept Landscape Architects
Updated BASIX and NaTHERS	Certificate Number		Date		Prepared by
BASIX Certificate	1406487M		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-Y4W3EE-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-A0HHR9-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-IYGD2J-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-C9LOES-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-DT7IWI-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-30H2MM-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-Q089WW-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-XHC6O0-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-I8AVF5-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-2MQJMN-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-YZG1CB-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-GS0OYJ-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-PHXBWT-01		27 July 2023	RC Energy Consultants
NatHERS Certificate	HR-O4FXWD-01		27 July 2023	RC Energy Consultants
Reports & Plans
Addendum Statement of Environmental Effects prepared by GLN dated 1 August 2023
Overland Flow Study prepared by C&M Consulting Engineers dated 24 August 2023
Amended Concept Stormwater Management Plan (Rev.C) prepared by NWS dated 3 August 2023
Owner’s Consent Letter – 75 Thirteenth Avenue dated 21 July 2023
Basin Decommissioning Plan prepared by NWS dated 2 August 2023
Amended Density Plan prepared by NWS dated 27 July 2023
Amended Proposed Subdivision Plan prepared by NWS dated 27 July 2023
Bushfire Assessment and Recommendations prepared by Sydney Bushfire Consultants 22 August 2023

14. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to Development Application DA-1120/2021 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA-1120/2021 for staged residential subdivision of 1 existing lot to create 23 Torrens title lots and 2 residue lots, integrated housing comprising construction of 9 attached dwellings and 4 semi-detached dwellings, demolition of existing dwellings, associated tree and vegetation removal, associated remediation and bulk earthworks, and associated civil works including construction of a temporary on-site detention basin, stormwater drainage, new roads and installation of services at 85 Thirteenth Avenue, Austral being the whole of the land in Lot 634 DP 2475, and with minor works on 75 Thirteenth Avenue, Austral being the whole of the land in Lot 6332 DP 1263964, subject to conditions of consent in Annexure A.

M Peatman

Acting Commissioner of the Court

112057.23 Annexure A

**********

Decision last updated: 29 September 2023