Universal Property Group Pty Ltd v Liverpool City Council

[2024] NSWLEC 1007

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group Pty Ltd v Liverpool City Council [2024] NSWLEC 1007

Hearing dates:

Conciliation conference on 20 December 2023

Date of orders:

16 January 2024

Decision date:

16 January 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The applicant is directed to file the amended development application the subject of order 4 below within seven days of the date of this order.

(2) The appeal is upheld.

(3) The applicant’s written Clause 4.6 variation request dated December 2023 to vary clause 4.3 of Appendix 4 of the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 is upheld.

(4) Development Application No DA-914/2022, as amended, for the demolition of all existing structures, tree removal and construction of two x three-storey residential flat buildings comprising 57 units and associated basement parking including landscaping and associated site works on land legally described as Lot 71 in DP 627424 and known as 216 Edmondson Avenue, Austral NSW 2179, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential flat buildings – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.41, 8.7, 10.3

Environmental Planning and Assessment Regulation 2021, ss 29, 38

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 9

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

State Environmental Planning Policy (Housing) 2021, Sch 7A

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 28, 30

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4, ss 2.3, 4.1AB, 4.1B, 4.3, 4.6, 6.1

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

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

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Universal Property Group Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2022/377230

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 deemed refusal of development application No DA-914/2022 for the construction of two x three storey residential flat buildings over basement car parking (development application) at Lot 71 in DP 627424, 216 Edmondson Avenue, Austral (site).

2. The proceedings were set down for a hearing on 20-21 December 2023. The parties agreed that following the joint conferencing of the experts, further changes to the plans and the agreed conditions of consent, that the contested issues had been resolved. The parties therefore requested that the proceedings be adjourned and listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. The Court granted the request and arranged a conciliation conference between the parties, which was held on 20 December 2023. I have presided over the conciliation conference.

4. The respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the applicant amending Development Application No DA-914/2022 in accordance with the documents listed at [35] (amended application). 

5. 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 application and granting development consent to the amended application subject to conditions of consent.

6. 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.

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.

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

Jurisdictional Prerequisites

9. 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.

10. I am satisfied that owners consent accompanied the development application.

11. The development application was lodged to the respondent on 26 August 2022. The Respondent notified the development application between 18 October 2022 to 2 November 2022. One submission was received.

12. As the parties have reached agreement, the concerns raised have been considered by the consent authority, who are satisfied that where possible, the issues have been addressed by the amended application.

13. The amended application is integrated development pursuant s 100B of the Rural Fires Act 1997. Section 4.41 of the EPA Act in relation to nominated bush fire lands also applies and the site is mapped as per s 10.3. Based on the issued General Terms of Approval from the Rural Fire Services, the Bushfire Protection Assessment Report prepared by Travers Bushfire and Ecology dated 30 October 2023 and nominated Asset Protection Zone accompanied by owner’s consent, I am satisfied that the provisions have been addressed.

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

14. The site is subject to the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (SEPP Western Parkland City). Appendix 4 Liverpool Growth Centres Precinct Plan (Precinct Plan) applies.

15. The site is zoned R3 Medium Density Residential under SEPP Western Parkland City. The proposed development is permissible with consent. Pursuant to s 2.3, I have had regard to the objectives of the zone.

16. Section 4.3 Height of buildings applies to the site, which allows a maximum height of 12m. Across the two proposed buildings, the breach to the maximum 12m height is between 320mm and 1.5m.

17. Section 4.1AB Minimum lot size of the Precinct Plan applies to the amended application. The subject site is 4999.7m² and complies with the 2,000m² requirement of s 4.1AB(9).

18. Section 4.1B Residential density of the Precinct Plan applies to the amended application. The parties agree and I accept that the amended application is above the minimum density of 25 dwellings per hectare, at 28.4 dwellings per hectare.

19. The amended application is supported by a s 4.6 written request authored by GLN planning dated December 2023 (written request). The parties agree, and I accept, that the written request justifies the contravention and that the proposed development is in the public interest for the following reasons:

• The written request sets out that the lift overruns, fire stair and a part of the parapet breach the height limit. The written request demonstrates that compliance with the height development standard is unreasonable or unnecessary in the circumstances of this case. The written request demonstrates that the objectives for height are achieved notwithstanding the contravention, as the anticipated height is substantially met and the visual impacts and amenity impacts have been minimised given the location of the breaches;

• The written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard as the contravention is in response to flood levels, meeting the minimum housing density requirements, improved amenity to the ground floor due to the close proximity to the communal open space through raising the building and negligible visual impacts;

• The contravention from the proposed development will be in the public interest as it is consistent with the objectives of the height development standard and consistent with the zone objectives as provided within the written request;

• In accordance with s 4.6(5), I have considered the provisions and am satisfied that the contravention will not infringe on those matters.

20. Accordingly, I am satisfied that the written request and proposed contravention to the height development standard is adequately justified in accordance with the matters set out in s 4.6.

21. Section 6.1 Public Utility Infrastructure of the Precinct Plan applies to the amended application. The parties agree that water, electricity and sewer is currently available and I accept that the requirements of s 6.1 have been satisfied.

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

22. The parties agree and I am satisfied that the amended application is accompanied by a BASIX Certificate that meets the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

State Environmental Planning Policy(Biodiversityand Conservation) 2021

23. The development application was lodged prior to the 21 November 2022 amendments to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). In accordance with s 6.65, the former provisions apply. Chapter 9 applies, as the site is located within the Hawkesbury-Nepean Catchment.

24. The parties agree and I accept that the relevant flooding, water quality, environmental, vegetation provisions under Chapter 9 have been addressed by the amended application through the following information:

1. Statement of Environmental Effects prepared by GLN planning dated 30 October 2023;

2. Engineering plans prepared by Enspire dated 6 October 2023;

3. Civil Engineering & Stormwater Management Report prepared by Enspire Solutions dated 13 October 2023;

4. Preliminary Tree Assessment prepared by Monaco Designs PL dated 14 December 2021;

5. Flood Impact Assessment prepared by Rhelm dated 5 May 2022;

6. Preliminary Site (Contamination) Investigation prepared by SLR Consulting Australia dated 12 July 2022; and

7. Geotechnical Site Investigation Report prepared by Geotesta dated 6 July 2022.

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development

25. Due to the lodgement date of the development application, the now repealed State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment (SEPP 65) Development applies to the proposed development in accordance with Schedule 7A (1)(a) and (2) of State Environmental Planning Policy (Housing) 2021.

26. Clause 28 requires consideration of the design quality of the development in accordance with the design quality principles within Sch 1 and the Apartment Design Guide (ADG). Clause 30(2) requires that adequate regard must be had to the same provisions. Relevantly, s 29 of the EPA Reg requires that residential apartment development must be accompanied by a design statement prepared by a qualified designer in relation to the design quality principles within Sch 1 of SEPP 65 and the ADG.

27. Clause 28(2)(a) requires consideration of advice received from the relevant design review panel. The parties agree that the advice issued in February 2023 has been addressed by the amended application.

28. The parties agree and I accept that the amended application meets the provisions of SEPP 65 on the basis of the Design Verification statement completed by the nominated qualified designer Roland Martinez (registered architect No 5984) dated 13 December 2023.

State Environmental Planning Policy (Resilience and Hazards) 2021

29. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The proposed development is accompanied by a Preliminary Site (Contamination) Investigation report prepared by SLR dated 12 December 2022 which states that the site is suitable for the proposed development. Accordingly, the parties agree and I am satisfied that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

30. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies as the amended application includes the installation of a substation. In accordance with s 2.48, the parties agree that the relevant electricity supply authority was notified, and no comments were received.

31. The subject site has a frontage to a classified road (Edmondson Avenue) and accordingly, s 2.119 of SEPP TI applies. The amended application is accompanied by a DA Acoustic Assessment Report prepared Acoustic Logic dated 19 October 2023 and Traffic Impact Assessment prepared by Fernway Engineering dated October 2023. In accordance with s 2.119(2), the parties agree that the amended application meets the requirements based on the information accompanying the amended application.

Conclusion

32. 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.

33. 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.

34. 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.

35. The Court notes that the respondent has approved, as the relevant consent authority, under s 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development Application No DA-914/2022 to rely upon the following amended plans and documents:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No. DA0201 Issue C	Proposed Development – View from Edmondson Avenue	Cottee Parker Architects	28 November 2023
	Drawing No. DA0202 Issue C	Proposed Development – View from south		28 November 2023
	Drawing No. DA2810 Issue D	Mid winter Shadow Diagrams – Sheet 2		28 November 2023
	Drawing No. DA0205 Issue D	3D CAD Model View with 12m Height Plane – Sheet 02		28 November 2023
	Drawing No. DA0203 Issue C	Proposed Development – View from north common area		28 November 2023
	Drawing No. DA0204 Issue D	3D CAD Model View with 12m Height Plane – Sheet 01		28 November 2023
	Drawing No. DA1004 Issue C	Site Plan		28 November 2023
	Drawing No. DA2812 Issue A	Solar access to Unit A-104, A-105 & A-106		28 November 2023
	Drawing No. DA2003 Issue D	Floor Plan: Basement		28 November 2023
	Drawing No. DA4701 Issue C	3 Bed Apartments		28 November 2023
	Drawing No. DA2004 Issue E	Floor Plan: Ground Floor Level 01		28 November 2023
	Drawing No. DA2005 Issue D	Floor Plan: Level 02		28 November 2023
	Drawing No. DA2006 Issue D	Floor Plan: Level 03		28 November 2023
	Drawing No. DA2007 Issue D	Floor Plan: Roof		28 November 2023
	Drawing No. DA2101 Issue C	Floor Plan: Adaptable Apartments		28 November 2023
	Drawing No. DA2103 Issue C	Livable Housing: Typical Bathroom Silver Level		28 November 2023
	Drawing No. DA3002 Issue D	Elevations: North and South		28 November 2023
	Drawing No. DA2801 Issue C	SEPP65 Summary		28 November 2023
	Drawing No. DA2802 Issue D	Site Coverage, Landscape & Communal Open Space		28 November 2023
	Drawing No. DA2803 Issue C	Cross Vent and Solar Analysis – Level 01 & 02		28 November 2023
	Drawing No. DA2804 Issue C	Cross Vent and Solar Analysis – Level 03		28 November 2023
	Drawing No. DA2807 Issue D	Sun Eye Diagrams – Mid Winter		28 November 2023
	Drawing No. DA4707 Issue C	2 Bed Apartments		28 November 2023
	Drawing No. DA2808 Issue D	Sun Eye Diagrams – Mid Winter		28 November 2023
	Drawing No. DA2809 Issue D	Mid Winter Shadow Diagrams – Sheet 1		28 November 2023
	Drawing No. DA2811 Issue C	Solar Access to Unit B3-02 @ 1m High – Mid Winter		28 November 2023
	Drawing No. DA3001 Issue E	Elevations: East and West		28 November 2023
	Drawing No. DA4709 Issue C	2 Bed + Study Apartments		28 November 2023
	Drawing No. DA3003 Issue E	Elevations: North & South Elevation Section		28 November 2023
	Drawing No. DA3101 Issue E	Sections Sheet 01		28 November 2023
	Drawing No. DA3102 Issue B	Sections Sheet 02		28 November 2023
	Drawing No. DA4702 Issue C	3 Bed Apartments		28 November 2023
	Drawing No. DA4708 Issue C	2 Bed Apartments		28 November 2023
	Drawing No. DA4712 Issue C	1 Bed Apartments		28 November 2023
Reports / documents
2	Clause 4.6 Variation to Height of Building Development Standards		GLN Planning	December 2023
3	Design Verification Statement		Cottee Parker Architects	13 December 2023
4	BASIX Certificate No. 1302757M_05		SLR Consulting Pty Ltd	14 December 2023
5	NATHERS Certificate No. AMRNYUSLXM		SLR Consulting Pty Ltd	14 December 2023

Orders:

36. The Court orders:

1. The applicant is directed to file the amended development application the subject of order 4 below within seven days of the date of this order.

2. The appeal is upheld.

3. The applicant’s written Clause 4.6 variation request dated December 2023 to vary clause 4.3 of Appendix 4 of the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 is upheld.

4. Development Application No DA-914/2022, as amended, for the demolition of all existing structures, tree removal and construction of two x three-storey residential flat buildings comprising 57 units and associated basement parking including landscaping and associated site works on land legally described as Lot 71 in DP 627424 and known as 216 Edmondson Avenue, Austral NSW 2179, is determined by the grant of development consent subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

**********

Annexure A

Decision last updated: 16 January 2024