Tribeca Residential Communities No. 5 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1148

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tribeca Residential Communities No. 5 Pty Ltd v Liverpool City Council [2023] NSWLEC 1148

Hearing dates:

Conciliation conference on 30 March 2023

Date of orders:

30 March 2023

Decision date:

30 March 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development Application for construction of 88 lots, including one residue lot, incorporating the construction of 86 dwellings, including 81 attached dwellings, four semi-detached dwellings, one secondary dwelling, and subsequent strata subdivision with road construction, civil works and associated landscaping and street tree planting at the subject site described as Super-Lot 1 and Super-Lot 2 as approved by DA-400/2018, known as 1382 & 1402 Camden Valley Way, Leppington is approved subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – Torrens title subdivision and construction of dwellings and roads – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, Sch 1, cl 55

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997 s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.65, s 9.3

State Environmental Planning Policy (Precincts—Western Parkland City) 2021 Appendix 4 cll 2.6, 4.1AA, 4.1AB, 4.1AF, 5.10, 6.1

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.77, 2.119

Category:

Principal judgment

Parties:

Tribeca Residential Communities No. 5 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
P Lalich (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2022/176448

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the Torrens title subdivision of two lots created by an earlier development consent (DA-400/2018) for land at 1382 and 1402 Camden Valley Way, Leppington, and the construction of dwellings on a number of those lots, road construction, civil works and landscaping. The development application was lodged on 9 February 2022. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 March 2023. I presided over the conciliation conference.

3. At the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement filed on 29 March 2023, and follows the agreement of the Council to an amendment to the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) in relation to which the Court granted leave on 25 January 2023.

4. The development application, as amended, is for the Torrens title subdivision into 88 lots, with single attached or semi-detached dwellings to be constructed on 84 lots, and an attached dwelling and secondary dwelling to be constructed on one lot. Two of the remaining lots are to be vacant residential lots for future development, and one residual lot will remain for temporary stormwater detention and treatment. The development application also includes road construction, civil works and associated landscaping and street tree planting.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the history of the development application and the jurisdictional matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development for the purposes of semi-detached dwellings, attached dwellings and secondary dwellings is permissible with consent pursuant to the Liverpool Growth Centres Precinct Plan (Precinct Plan) in Appendix 4 to the State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (SEPP WPC), the land being zoned R3 Medium Density Residential. The subdivision of land is permitted with consent pursuant to cl 2.6 of the Precinct Plan.

• The proposed development does not breach any of the applicable development standards pursuant to the Precinct Plan concerning minimum subdivision lot size and density. A building envelope plan has been provided for the proposed lot that is less than 300m² (but greater than 225m²) in satisfaction of cl 4.1AA of the Precinct Plan, and the lots that do not comply with the minimum lot size for dwelling houses in cl 4.1AB meet the requirements of the exception in cl 4.1AF.

• In satisfaction of cl 6.1 of the Precinct Plan and based on the Servicing Report dated December 2021, infrastructure is available within the immediate vicinity to adequately service the area, and adequate arrangements have been made to ensure that the infrastructure will be available when required.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Preliminary Site Investigation report dated 20 December 2017, the site can be made suitable for the development, subject to the carrying out of works required by the Remedial Action Plan dated 17 March 2021.

• The site has frontage to Camden Valley Way, which is a classified road, and s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) therefore applies. In accordance with s 2.119, the dwellings proposed along the classified road will have vehicular access from local roads within the site and, based on the Traffic and Parking Assessment dated January 2022, I am satisfied that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development. Consistent with the requirements of s 2.119(2)(c) and based on the Air Quality Impact Assessment dated 7 November 2022 and the Traffic Noise Impact Assessment dated 27 September 2022, I am satisfied that the proposed development is appropriately located and designed to ameliorate potential traffic noise or vehicle emissions arising from the adjacent classified road.

• The proposed development could affect an underground electricity power line or an electricity distribution pole, as a result of which s 2.48 of the SEPP TI requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Endeavour Energy was notified of the development application and I have considered the content of their response.

• The proposed development is adjacent to land in a pipeline corridor, as a result of which s 2.77 of the SEPP TI applies. Based on the responses from APA Group and Jemina in Attachments 6 and 8 to Annexure A of the final orders, I am satisfied of the matters in s 2.77(1)(a) and have considered the matters in s 2.77(1)(b) and (d).

• Pursuant to s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, the repealed Ch 9 of the SEPP B&C continues to apply to the proposed development. Chapter 9 concerns the Hawkesbury-Nepean River system. Based on the Jurisdictional Statement and the documents accompanying the Class 1 Application, I have considered the matters required to be considered by s 9.3.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the EPA Regulation 2000.

7. The proposal is integrated development pursuant to s 100B(3) of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a Section 100B Bush Fire Safety Authority.

Final orders

8. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

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 Application for construction of 88 lots, including one residue lot, incorporating the construction of 86 dwellings, including 81 attached dwellings, four semi-detached dwellings, one secondary dwelling, and subsequent strata subdivision with road construction, civil works and associated landscaping and street tree planting at the subject site described as Super-Lot 1 and Super-Lot 2 as approved by DA-400/2018, known as 1382 & 1402 Camden Valley Way, Leppington is approved subject to the conditions set out in Annexure A.

……………………….

J Gray

Commissioner of the Court

22.176448 Annexure A (2825341, pdf)

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Decision last updated: 30 March 2023