UPG 148 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1247

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 148 Pty Ltd v Liverpool City Council [2023] NSWLEC 1247

Hearing dates:

Conciliation conference on 14 October, 25 November and 9 December 2022

Date of orders:

23 May 2023

Decision date:

23 May 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amended application in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or as assessed.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA-1460/2021, for the demolition of existing structures and subdivision of land into 34 Torrens title lots (comprising 33 residential lots and 1 residue lot), provision of services, bulk earthworks, construction of roads and civil works on land legally described as Lot 320 in DP778465 and known as 124 Gurner Avenue, Austral NSW 2179, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION ––subdivision - conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Interpretation Act 1987, s 30A

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, ss 9.2, 9.3

State Environmental Planning Policy (Precincts—Western Parkland City) 2021, cl 1.4, Appendix 4, ss 2.6, 4.1AB, 4.1B

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

State Environmental Planning Policy (Transport and Infrastructure) 2021

Category:

Principal judgment

Parties:

UPG 148 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

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

Solicitors:
Macpherson Kelley (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2022/176050

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Liverpool City Council (the Council) of a Development Application No. DA-1460/2021 (DA) for demolition of existing structures and subdivision of land into 38 Torrens title lots, construction of public road, civil works, site remediation and associated works on land legally described as Lot 320, DP 778465, 124 Gurner Avenue, Austral’(the Site). In exercising the functions of the consent authority on appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. On 15 December 2021, the DA was lodged with the Respondent.

3. On 26 April 2022, the DA was notified to the owners and occupiers of any properties considered to be potentially affected by the DA and no submissions were received.

4. On 17 June 2022, the Applicant filed a Class 1 Application in the Land and Environment Court of NSW for deemed refusal of DA-1460/2021 (Appeal Application).

5. The parties had without prejudice discussions leading up to the s 34 conference on 14 October 2022. The Applicant provided without prejudice amended material to the Council which are listed at Annexure A (Amended DA). Council confirmed that the Amended DA resolved Council’s Statement of Facts and Contentions (Contentions). The Council, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to the Applicant amending the DA in accordance with the Amended DA.

6. 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 13 October 2022 and at which I presided.

7. At and after the conciliation conferences the Applicant agreed to make amendments (in addition to amendments already made in preparation for the conciliation conference) and provide further information to address Council’s Contentions.

8. The Council, as the relevant consent authority has agreed under cl 55 of the EPA Regulation, to the Applicant amending the DA in accordance with the amended plans and material listed at Annexure A.

9. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 February 2023.

10. The parties asked me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

11. 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 power under s 4.16 of the EPA Act.

12. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

13. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [14] to [25] below.

State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP)

14. The Growth Centres SEPP was applicable to the DA at the time of lodgement. The State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (WPC SEPP) commenced on 1 March 2022 and served to repeal the Growth Centres SEPP and transfer relevant provisions of the WPC SEPP. Section 1.4 of the WPC SEPP provides that s 30A of the Interpretation Act 1987 applies to all transferred provisions, such that the transferred provisions are to be construed as if they had not been so transferred.

15. Appendix 4 of the WPC SEPP (Liverpool Growth Centres Precinct Plan) (Precinct Plan) is also applicable to the Site.

16. The Site is zoned R2 Low Density Residential under the Precinct Plan. Subdivision is permitted with consent under s 2.6 of the Precinct Plan. The relevant applicable sections in the Precinct Plan are considered as follows:

17. Section 4.1AB of the Precinct Plan specifies a minimum permitted lot size on the Site for a dwelling house is 300 m² and s 4.1B requires a minimum dwelling density for the Site of 15 dwellings per hectare. The proposed lots have a minimum lot size of 300 m² and the Amended DA is compliant with the minimum dwelling density.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

18. Chapter 4 (Remediation of land) of the Resilience and Hazards SEPP applies to the proposed development.

19. Section 4.6 of the Resilience and Hazards SEPP requires a consent authority to consider the contamination and remediation of land when determining a development application. Section 4.6(1) requires that:

(1) A consent authority must not consent to the carrying out of any development on land unless—

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

20. A Stage 1 Preliminary Site Contamination Investigation Report and a Stage 2 Detailed Site Investigation Report have been prepared for the Site. Based on the assessments undertaken as part of the site investigations, I am satisfied that the Site is considered unlikely to contain contamination. Accordingly, the Site is suitable for future residential development with accessible soils.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP)

21. Chapter 2 of the Transport and Infrastructure SEPP applies to the proposed development.

22. I am satisfied that the matters for consideration under Ch 2 of the Transport and Infrastructure SEPP have been addressed in the following material which accompany the Amended DA:

1. Traffic response prepared by Varga Traffic Planning Pty Ltd dated 10 October 2022;

2. Engineering response prepared by Enspire Solutions dated 23 August 2022;

3. Civil engineering plans prepared by Enspire Solutions dated 9 November 2022; and

4. Civil Engineering & Stormwater Management Report prepared by Enspire Solutions dated 9 November 2022.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP)

23. The now repealed Ch 9 Hawkesbury-Nepean River of the Biodiversity and Conservation SEPP applies to the proposed development.

24. Section 9.3 of the Biodiversity and Conservation SEPP requires a consent authority to consider the matters referred to in s 9.3.

25. I am satisfied that the matters for consideration under s 9.2 have been addressed in the following reports which accompany the Amended DA:

1. Statement of Environmental Effects prepared by The Bathla Group dated December 2021;

2. Preliminary Site Investigation prepared by Geotesta Pty Ltd dated 28 June 2022;

3. Stage 2 Detailed Site Investigation prepared by Sydney Environmental Group Pty Ltd dated 26 September 2022;

4. Civil engineering plans prepared by Enspire Solutions dated 9 November 2022; and

5. Civil Engineering & Stormwater Management Report prepared by Enspire Solutions dated 9 November 2022.

Conclusion

26. 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.

27. 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.

Notes

28. The Court notes that:

1. The parties have reached an agreement in a conciliation conference conducted pursuant to s 34(3) of the Land and Environment Court Act1979, as to a decision that the Court could have made in the proper exercise of its functions.

2. The Council agrees to the Applicant amending Development Application No. DA-1460/2021 pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, in accordance with the following amended plans and documents as described below.

Drawing No and Revision		Title	Prepared by	Date
Subdivision Plans
1	Dwg DA02 Rev 4	Subdivision Plan	The Bathla Group	28 September 2022
	Dwg DA03 Rev 1	Building Development Plan		30 November 2021
	Dwg DA04 Rev 1	Subdivision Plan Schedule of Changes		27 October 2022
Landscape Plan
2	Dwg LP-01 Rev A	Public Domain Plan	The Bathla Group	28 October 2022
Engineering Plans
3	Dwg 220084-DA-C01.01 Rev 1	Cover Sheet and Drawing Schedule	Enspire Solutions Pty Ltd	18 November 2022
	Dwg 220084-DA-C01.21 Rev 1	Specification Notes – Sheet 01
	Dwg 220084-DA-C01.22 Rev 1	Specification Notes – Sheet 02
	Dwg 220084-DA-C01.41 Rev 1	General Arrangement Plan
	Dwg 220084-DA-C02.01 Rev 1	Demolition Plan
	Dwg 220084-DA-C03.01 Rev 1	Erosion and Sediment Control Plan – Sheet 01
	Dwg 220084-DA-C03.02 Rev 1	Erosion and Sediment Control Plan – Sheet 02
	Dwg 220084-DA-C03.21 Rev 1	Erosion and Sediment Control Details
	Dwg 220084-DA-C03.31 Rev 1	Sediment Basin Plan and Details – Sheet 01
	Dwg 220084-DA-C03.32 Rev 1	Sediment Basin Plan and Details – Sheet 02
	Dwg 220084-DA-C04.01 Rev 1	Cut and Fill Plan
	Dwg 220084-DA-C04.21 Rev 1	Cut and Fill Sections – Sheet 01
	Dwg 220084-DA-C04.22 Rev 1	Cut and Fill Sections – Sheet 02
	Dwg 220084-DA-C05.01 Rev 1	Siteworks and Stormwater Management Plan – Sheet 01
	Dwg 220084-DA-C05.02 Rev 1	Siteworks and Stormwater Management Plan – Sheet 02
	Dwg 220084-DA-C05.03 Rev 1	Siteworks and Stormwater Management Plan – Sheet 03
	Dwg 220084-DA-C06.01 Rev 1	Road Typical Cross Sections
	Dwg 220084-DA-C07.01 Rev 1	Road Longitudinal Sections – Sheet 01
	Dwg 220084-DA-C07.02 Rev 1	Road Longitudinal Sections – Sheet 02
	Dwg 220084-DA-C07.03 Rev 1	Road Longitudinal Sections – Sheet 03
	Dwg 220084-DA-C11.01 Rev 1	Pavement Signage and Linemarking Plan – Sheet 01
	Dwg 220084-DA-C11.02 Rev 1	Pavement Signage and Linemarking Plan – Sheet 02
	Dwg 220084-DA-C11.03 Rev 1	Pavement Signage and Linemarking Plan – Sheet 03
	Dwg 220084-DA-C14.01 Rev 1	Siteworks Details
	Dwg 220084-DA-C18.01 Rev 1	Bio-retention Basin Plan and Detail – Sheet 01
	Dwg 220084-DA-C18.02 Rev 1	Bio-retention Basin Plan and Detail – Sheet 02
	Dwg 220084-DA-C20.01 Rev 1	Pre-development Catchment Plan
	Dwg 220084-DA-C21.01 Rev 1	Post-development Catchment Plan
	Dwg 220084-DA-C21.02 Rev 1	Ultimate Catchment Plan
	Dwg 220084-DA-C22.01 Rev 1	Turning Path Plan – Sheet 01
	Dwg 220084-DA-C22.02 Rev 1	Turning Path Plan – Sheet 02
	Dwg 220084-DA-C23.01 Rev 1	Safety in Design
Reports
4	Aboricultural Impact Assessment		Tree Survey	30 September 2022
5	Detailed Site Investigation		SLR Consulting Australia Pty Ltd	19 October 2022
6	Traffic Response		Varga Traffic Planning Pty Ltd	10 October 2022
7	Odour Assessment Report		Astute Environmental Consulting Pty Ltd	10 October 2022
8	Flooding Considerations		Stantec Australia Pty Ltd	18 November 2022
9	Civil Engineering & Stormwater Management Report		Enspire Solutions Pty Ltd	18 November 2022
10	Sewer service letter		Qalchek	12 October 2022

Orders

29. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amended application in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or as assessed.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA-1460/2021, for the demolition of existing structures and subdivision of land into 34 Torrens title lots (comprising 33 residential lots and 1 residue lot), provision of services, bulk earthworks, construction of roads and civil works on land legally described as Lot 320 in DP778465 and known as 124 Gurner Avenue, Austral NSW 2179, subject to the conditions at Annexure A.

L Sheridan

Acting Commissioner of the Court

Annexure A

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Decision last updated: 23 May 2023