The Trustee for Leppington Central Investments Trust trading as Leppington Central Investments Pty Ltd v Liverpool City Council

[2021] NSWLEC 1122

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Trustee for Leppington Central Investments Trust trading as Leppington Central Investments Pty Ltd v Liverpool City Council [2021] NSWLEC 1122

Hearing dates:

22 February 2021

Date of orders:

11 March 2021

Decision date:

11 March 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

Refer to orders below at [10]

Catchwords:

APPEAL – development application – residential subdivision – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Texts Cited:

New South Wales Fire Service, Planning for Bush Fire Protection (November 2019)

Category:

Principal judgment

Parties:

The Trustee for Leppington Central Investments Trust trading as Leppington Central Investments Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Lazarus SC (Applicant)
A Pearman (Respondent)

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

File Number(s):

2020/228238

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the subdivision of land described as Lot 914 DP 2475 known as 20 Ninth Avenue, Austral (the Site). The Site has an area of 1.295 ha. The development application seeks consent for the demolition of existing structures and subdivision of the Site into a Torrens Title subdivision of 29 residential lots, including site remediation, road construction and associated civil works.

2. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979(EPA Act) and is an appeal in Class 1 of the Court’s jurisdiction.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

4. The appeal was listed for hearing on 22 February 2021. At the commencement of the hearing the parties requested that the hearing be adjourned and that a conciliation conference be arranged between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The Court granted the adjournment and a conciliation conference was arranged, as requested by the parties. The conciliation conference commenced on 22 February 2021 and concluded on that day. I presided over the conciliation conference.

5. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 23 February 2021 and is supported by a Jurisdictional Note provided by the parties on the same date. The decision involves development consent being granted subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

6. Under 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.

7. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons:

1. The appeal was brought pursuant to s 8.7 and was made within the time required by s 8.10 of the EPA Act.

2. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000, consent to the making of the development application has been provided by the owner of the Site.

3. The proposed development is for the purpose of residential subdivision. The site is within zone R2 Low Density Residential under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP). The proposed development:

1. is permissible with consent under Appendix 8 of the Growth Centres SEPP; and

2. does not breach any development standards contained in Part 4 of Appendix 8 of the Growth Centres SEPP. The Growth Centres SEPP does not specify a minimum lot size for the subdivision of land within zone R2. The proposed 29 allotments range in size from 225m² to 300m² and exceed the minimum residential density of 19 lots (29 lots are proposed).

4. The site is suitable for its proposed use and satisfies the requirements of State Environmental Planning Policy No 55—Remediation of Land. The Applicant has provided a Combined Stage 1 Preliminary and Stage 2 Detailed Site Investigation and Remediation Action Plan (the RAP) which confirm that the site can be made suitable for the proposed development, subject to the remediation works being undertaken as recommended in the RAP, as required by the agreed conditions of consent.

5. In accordance with s 4.14 of the EPA Act, I am satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department that is relevant to the development. In this regard I accept the agreed submission of the parties that the development conforms to the specifications and requirements contained within the Bushfire Safety Authority issued by the NSW Rural Fire Service Dated 17 February 2021.

6. I also accept the agreed submission of the parties that the notification requirements under the EPA Act have been satisfied and all submissions from the relevant authorities have been taken into consideration.

8. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

9. In making the orders to give effect to the agreement between the parties, 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 EPA Act.

10. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to DA-712/2019 for the demolition of existing structures and subdivision of one existing allotment into a Torrens Title subdivision of 29 residential lots, including site remediation, road construction and associated civil works at 20 Ninth Avenue, Austral subject to conditions contained in Annexure ‘A’. The subdivision is to be staged as follows:

Stage 1

Demolition of Existing Structures, Site Remediation, Subdivision of Existing Allotment into a Torrens Title Subdivision of 29 Residential Lots (including two residue Lots for temporary OSD being Lots 1 and 18 and one residue Lot for APZ management being Lot 18), and Construction of Roads and associated Civil Works, bulk earth works, tree retention and associated works, tree removal, drainage and road works at 20 Ninth Avenue, Austral

Stage 2

Decommissioning of 2 temporary OSD’s and rehabilitation of 2 lots (1 and 18) for residential purposes.

Lot 18 is subject to further conditions relating to this lot being managed as an inner protection area (Asset Protection Zone). This Lot may not be created until the identified Temporary Bushfire Threat is removed in accordance with this consent.

………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (1145341, pdf)

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Decision last updated: 11 March 2021