UPG 156 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1597

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 156 Pty Ltd v Liverpool City Council [2023] NSWLEC 1597

Hearing dates:

Conciliation Conference on 8 September 2023

Date of orders:

12 October 2023

Decision date:

12 October 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant’s written s 4.6 request dated 8 September 2023 to vary s 4.1B of the State Environmental Planning Policy (Precincts-Western Parkland City) 2021 is upheld.

(2)   The appeal is upheld.

(3)   Development consent is granted to Development Application No. DA-1004/2022, as amended, for the staged subdivision of land into 99 Torrens Title Lots, including 96 Torrens Title residential lots, 1 x SP2 zoned lot, 2 x superlots over two stages, including construction of public roads, demolition of existing structures, tree removal and stormwater drainage works on land legally described as Lot 1149, Lot 1150 and Lot 1151 in DP 2475 and Lot 53 and Lot 54 in DP1204512, also known as 250-260 Bringelly Road, Austral NSW 2179, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – Torrens title subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7, 10.3

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Appendix 4, ss 2.6, 4.1AA, 4.1AB, 4.1B, 4.6, 6.1

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

Texts Cited:

Liverpool City Council, Community Participation Plan, 2022

Category:

Principal judgment

Parties:

UPG 156 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
C Campbell (Respondent)

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

File Number(s):

2022/384458

Publication restriction:

No

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 refusal of development application DA-1004/2022 (DA) for the subdivision of land into 117 Torrens Title Lots including 114 residential lots, 1 SP2 zoned lot, 2 superlots over two stages, demolition of existing structures, construction of public roads, tree removal, stormwater drainage works and other associated site works (the Proposed Development) at 250-260 Bringelly Road, Austral NSW 2179 legally described as Lot 1149, Lot 1150 and Lot 1151 in DP 2475 and Lot 53 and Lot 54 in DP 1204512 (the Site).

2. The parties participated in a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act) on 5 June 2023 (s 34 conference). The s 34 conference was adjourned to 29 June 2023 to allow the parties extra time to reach an agreement. During the s 34 conference, the Applicant agreed to further amend the DA to address the SOFAC. That s 34 conference was ultimately terminated on 22 August 2023

3. The Court arranged a further conciliation conference under s 34(1) of the LEC Act between the parties, which has been held on 8 September 2023. I have presided over the conciliation conference.

4. 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 development consent to the development application, subject to conditions. The parties filed a further agreement pursuant to s 34 of the LEC Act on 6 October 2023 making a correction to condition of consent number 124 regarding the calculation of contributions payable.

5. 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. 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.

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

7. 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 to be the provisions of the State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (WPC SEPP), in particular, Appendix 4 of the WPC SEPP (Liverpool Growth Centres Precinct Plan) (Precinct Plan). The parties explained how the jurisdictional prerequisites have been satisfied and I have summarised this explanation below.

8. The DA was made by UPG 156 Pty Ltd on 17 October 2022 with the written consent of Carmel Borg and Doris Borg who are the owners of the Site.

9. The DA was notified in accordance with the Respondent’s Community Participation Plan for a period of 16 days from 28 November 2022 to 13 December 2022. No submissions were received objecting to the DA during the notification period. In accordance with section 7.4 of the Liverpool Community Participation Plan 2022, the Amended DA was not re-notified as the Council formed the opinion that the amendments did not intensify or change the external impact of the proposed development.

10. The Site is identified as Bushfire Prone Land (as Vegetation Buffer) as recorded on the relevant Bush Fire Prone Land (Non-EPI) Map under s 10.3 of the EPA Act. The DA was referred to the NSW Rural Fire Services (NSW RFS) pursuant to s 100B of the Rural Fires Act 1997 (NSW) (RF Act). On 10 January 2023, the RF issued a s 100B Certificate.

11. The DA was accompanied by a Bushfire Protection Assessment prepared by Travers Bushfire & Ecology and dated 24 September 2021.

12. On 10 January 2023, NSW RFS issued a Bushfire Safety Authority for the Development pursuant to s 100B of the RF Act.

13. Compliance with the WPC SEPP and the Precinct Plan is addressed generally in the amended Statement of Environmental Effects prepared by the Bathla Group dated June 2023, but specific provisions are addressed below.

14. The Site is zoned part R3 Medium Density Residential and part SP2 Infrastructure (Local Drainage) under the WPC SEPP. The Development is permissible with consent in the R3 and SP2 zones (see s 2.6 of the Precinct Plan).

15. The Site is not shown on the Lot Size Map. The Development proposes lot sizes between 225m² and 300m² on the R3 zoned land. The minimum lot size for a dwelling house in the R3 zone is 300m², in accordance with s 4.1AB(3) of the Precinct Plan. For those lots which are less than 300m², the Development relies upon s 4.1AA of Precinct Plan which, in relation to subdivision, permits lot sizes between 225m² to 300m² “if the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot”.

16. In relation to those lots which are less than 300m², the Development is accompanied by Drawing DA 04 Rev 4 which demonstrates that those lots can enable the erection of a dwelling house as depicted by an indicative building envelope for each of the proposed lots. Accordingly, I am satisfied that each of the new lots sized between 225m² to 300m² will contain a sufficient building envelopment to enable the erection of a dwelling house on the lot and development consent can be granted.

17. Section 6.1 of the Precinct Plan applies to the Development. Adequate arrangements have been made to make public infrastructure available to the Development when required. The DA was referred to Sydney Water and Jemena who have confirmed that water and electricity can be available to the Site. A copy of these referral responses are attached to the conditions of consent at Annexure A.

18. Chapter 4 Remediation of land of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the proposed development. Section 4.6 of the Resilience 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.

19. A Stage 1 Preliminary Site Contamination Investigation Report was prepared for the Site filed with the Class 1 Application and at page 31, the Report states as follows:

“Based on the analytical results of the limited sampling and the historical review of the site, the site contamination risk is considered low.”

“Based on the information available and the scope of works undertaken, it is considered that the site is suitable for the proposed residential development, following the results of the data gap assessment.”

20. The Preliminary Site Investigation report for the Site was later certified by SLR Consulting Australia Pty Ltd in a further Preliminary Site Investigation report (SLR Ref: 620.30949.00000-R03) dated June 2022 and filed on 8 September 2023. Page 24 of the further Preliminary Site Investigation Report concludes as follows:

“Based on the results of this PSI, SLR have not encountered any conditions that would render the site unsuitable for the proposed redevelopment, however it is noted that the soils conditions beneath the sheds represents a substantial data gap and require investigation following demolition and prior to redevelopment.”

21. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the Site is suitable for the Proposed Development.

Contravention of Density Development Standard

22. The Applicant relies on a written request pursuant to s 4.6 of the Precinct Plan to justify the contravention of the density development standard prepared by The Bathla Group dated 8 September 2023 (the Written Request). The Written Request states that:

“…the non-compliance with the minimum dwelling yield of 129 dwellings is justified in the circumstances of the case as Lot 188 and Lot 189 will be further developed with residential flat buildings that will exceed the minimum dwelling density for the site and address the 33 dwellings shortfall’ in the DA.”

23. The Site is mapped on the Residential Dwelling Map as having a dwelling density of 25 dwellings per hectare in accordance with the development standard in s 4.1B of the Precinct Plan which reads as follows:

4.1B   Residential density

(1)  The objectives of this section are—

(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.

(2)  This section applies to residential development of the kind referred to in section 4.1AB or 4.1AC that—

(a)  is carried out on land to which this Precinct Plan applies that is shown on the Residential Density Map, and

(b)  requires development consent, and

(c)  is carried out after the commencement of this Precinct Plan.

(3)  The density of any residential development to which this section applies is not to be less than the density shown on the Residential Density Map in relation to that land.

(4)  In this section—

density means the net developable area in hectares of the land on which the development is situated divided by the number of dwellings proposed to be located on that land.

net developable area means the land occupied by the development, including internal streets, but excluding land that is not zoned for residential purposes.

24. The parties agree and I accept that the Site will ultimately achieve the density target as shown on Density Plan Drawing DA 06 Revision 4 and will comply with s 4.1B(3) of the Precinct Plan upon approval of a further proposed development on the two proposed super lots (being Lot 188 and Lot 189).

25. The Court is satisfied that the applicant’s Written Request seeking to justify the contravention of the development standard in s 4.1B of the Precinct Plan has adequately addressed the matters required to be demonstrated by s 4.6(3) of the Precinct Plan and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

26. 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. I adopt the reasons given by the parties as set out in this judgment.

27. 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.

Notations:

28. The Court notes that:

1. The Respondent has agreed, as the relevant consent authority has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA-1004/2022 to rely upon the following amended plans and documents, which have been lodged with the Court on 8 September 2023.

Drawing No and Revision		Title	Prepared by	Date
Subdivision Plans
1	Drawing No. DA01 (Revision 4)	Site Analysis	The Bathla Group	19 July 2023
	Drawing No. DA02 (Revision 4)	Subdivision Plan (Stage 1)
	Drawing No. DA03 (Revision 4)	Subdivision Plan (Stage 2)
	Drawing No. DA04 (Revision 4)	Building Development Plan
	Drawing No. DA05 (Revision 4)	Orderly Development Plan
	Drawing No. DA06 (Revision 4)	Density Plan
Landscape Plans
2	Drawing No. LP-01 (Revision B)	Public Domain Plan	The Bathla Group	15 June 2023
	Drawing No. LP-02 (Revision B)	Details	The Bathla Group	15 June 2023
Engineering Plans
3	Drawing No.000 (Revision C)	Drawing Schedule – Civil Engineering Design – Stage 1	INDESCO Pty Ltd	28 June 2023
	Drawing No.001 (Revision C)	General Notes and Legend
	Drawing No.002 (Revision C)	Demolition Plan
	Drawing No.003 (Revision C)	Staging Plan
	Drawing No.010 (Revision C)	Bulk Earthworks Stage 1
	Drawing No.011 (Revision C)	Bulk Earthworks Stage 2
	Drawing No. 012 (Revision C)	Bulk Earthworks Sections Sheet 1 of 3
	Drawing No. 013 (Revision C)	Bulk Earthworks Sections Sheet 2 of 3
	Drawing No. 014 (Revision C)	Bulk Earthworks Sections Sheet 3 of 3
	Drawing No.020 (Revision C)	Engineering Plans Stage 1 Sheet 1 of 2
	Drawing No.021 (Revision C)	Engineering Plans Stage 1 Sheet 2 of 2
	Drawing No.022 (Revision C)	Engineering Plans Stage 2 Sheet 1 of 2
	Drawing No.023 (Revision C)	Engineering Plans Stage 2 Sheet 2 of 2
	Drawing No.028 (Revision C)	Retaining Wall Plan Longitudinal Section & Details
	Drawing No.030 (Revision C)	Road Typical Cross Sections
	Drawing No.035 (Revision C)	Road Long Sections Sheet 1 of 4
	Drawing No.036 (Revision C)	Road Long Sections Sheet 2 of 4
	Drawing No.037 (Revision C)	Road Long Sections Sheet 3 of 4
	Drawing No.038 (Revision C)	Road Long Sections Sheet 4 of 4
	Drawing No.040 (Revision C)	OSD Basin 1 Plan and Sections
	Drawing No.041 (Revision C)	OSD Basin 2 & 3 Plan and Sections
	Drawing No.042 (Revision C)	OSD Basin Details
	Drawing No.045 (Revision C)	Channel Long Sections
	Drawing No.046 (Revision C)	Typical Channel Cross Sections and Calculations
	Drawing No.050 (Revision C)	Pre Development Catchment Plan
	Drawing No.051 (Revision C)	Post Development Catchment Plan Sheet 1 of 2
	Drawing No.052 (Revision C)	Post Development Catchment Plan Sheet 2 of 2
	Drawing No.053 (Revision C)	MUSIC OSD Catchment Plan
	Drawing No.060 (Revision C)	Sediment and Erosion Control Plan Sheet 1 of 2
	Drawing No.061 (Revision C)	Sediment and Erosion Control Plan Sheet 2 of 2
	Drawing No.062 (Revision C)	Sediment and Erosion Control Details
	Drawing No.080 (Revision C)	Signage and Linemarking Sheet 1 of 2
	Drawing No.081 (Revision C)	Signage and Linemarking Sheet 2 of 2
	Drawing No.090 (Revision C)	Temporary Road Swept Path Plan
Reports / documents
4	Statement of Environmental Effects (Amended)		The Bathla Group	June 2023
5	Clause 4.6 Request to Vary a Development Standard: Density		The Bathla Group	8 September 2023
6	Dam Dewatering Report (Report No. NE1003)		GEOTESTA Pty Ltd	22 June 2022
7	Waste Management Plan (Amended)		The Bathla Group	6 June 2023
8	Response letter to Liverpool City Council RFI		Acoustic Logic	22 May 2023
9	Traffic Responses		Fernway Engineering	June 2023
10	Preliminary Site Investigation (SLR Ref: 620.30949.00000-R03) (Version 1)		SLR Consulting Australia Pty Ltd	27 June 2022

Orders:

29. The Court orders:

1. The Applicant’s written s 4.6 request dated 8 September 2023 to vary s 4.1B of the State Environmental Planning Policy (Precincts-Western Parkland City) 2021 is upheld.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA-1004/2022, as amended, for the staged subdivision of land into 99 Torrens Title Lots, including 96 Torrens Title residential lots, 1 x SP2 zoned lot, 2 x superlots over two stages, including construction of public roads, demolition of existing structures, tree removal and stormwater drainage works on land legally described as Lot 1149, Lot 1150 and Lot 1151 in DP 2475 and Lot 53 and Lot 54 in DP1204512, also known as 250-260 Bringelly Road, Austral NSW 2179, subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

Annexure A

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Decision last updated: 12 October 2023