UPG 169 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1419

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 169 Pty Ltd v Liverpool City Council [2023] NSWLEC 1419

Hearing dates:

Conciliation conference on 29 June 2023

Date of orders:

3 August 2023

Decision date:

03 August 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA-473/2022 for subdivision of land creating 78 Torrens title lots over two stages, tree removal, construction of 20 dwellings, construction of public roads, stormwater drainage and associated site works at 275 and 280 Eighth Avenue, Austral, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 6.65, Ch 9, Pt 9.2

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

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

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

Texts Cited:

NSW Rural Fire Service, Liverpool Bush Fire Prone Land Map

Liverpool Community Participation Plan 2019

Liverpool Growth Centres Development Control Plan 2021

Category:

Principal judgment

Parties:

UPG 169 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
C Campbell (Solicitor) (Respondent)

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

File Number(s):

2022/281128

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA-473/2022 (the DA) for subdivision of land creating eighty-six (86) Torrens title lots over two stages, tree removal, construction of 20 dwellings, construction of public roads, stormwater drainage and associated site works on land at 275 and 280 Eighth Avenue, Austral, NSW 2179. The subject site is identified as Lot 2 in DP598602 and Lot 112 in DP591857.

2. On 11 May 2023, the Court granted leave to the Applicant to rely on the amended material contained in the Notice of Motion and in Exhibit EJF-1 filed by the Applicant on 4 May 2023. The amended DA reduced the number of lots from eighty-six (86) to seventy-eight (78).

3. In response to the DA, as amended, the Respondent filed an amended SOFAC which removed all the original contentions and did not raise any new contentions.

4. The matter was listed for a hearing on 29 June 2023 and commenced with an on site view. No objectors attended the site.

5. The parties agreed the proceedings be disposed of by the Court in accordance with the s 34 agreement between the parties made under s 34(3) of the Land and Environment Court Act 1979 (LEC Act). The hearing was adjourned and the matter was reallocated to me as a s 34 conciliation conference.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act. This decision involved the Court upholding the appeal and granting development consent to the DA subject to conditions.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a jurisdictional note accompanying the s 34 agreement, and those requirements have been satisfied as follows:

1. The registered proprietors of the subject site provided landowner’s consent to the lodging of the DA;

2. The DA was notified for a period of 14 days by the respondent between 29 August 2022 and 13 September 2022 as required under the provisions of Liverpool City Council’s Community Participation Plan 2019. One (1) submission was received in response to that notification.

3. In relation to the provisions of the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (WPC SEPP):

1. The subject site is located within the Leppington North Precinct which is a precinct within the Liverpool Growth Centres as identified in the WPC SEPP Appendix 4;

2. The subject site is zoned part R2 – Low Density Residential, part R3 – Medium Density Residential, part SP2 Infrastructure (Local Road) and part RE1 – Public Recreation under Appendix 4 of the WPC SEPP; and

1. the proposed development is permissible with consent in the R2, R3 and SP2 Zones within which the subject site is located. No works are proposed on the RE1 zoned land;

2. I am satisfied that the proposed development is consistent with the objectives for development within the zones in which the development is proposed to be carried out.

3. The subject site is not shown on the Lot Size Map in the WPC SEPP (Appendix 4). The proposed development includes lot sizes between 226m² and 346m² on the R2 and R3 zoned land; and

1. The minimum lot size for a dwelling house in the R2 and R3 zone shown is 300m², in accordance with s 4.1AB(3) of Appendix 4 of the WPC SEPP. For those lots which are less than 300m², the DA relies upon s 4.1AA of Appendix 4 of the WPC SEPP. In relation to those lots which are less than 300m², the DA is accompanied by building envelope plans which demonstrate that those lots can enable the erection of a dwelling house;

2. In addition, the DA relies upon s 4.1AD(2)(b) of Appendix 4 of the WPC SEPP for approval of the erection of a dwelling house for 20 dwellings which are less than 300m². The Development complies with the minimum lot sizes required under Appendix 4 of the WPC SEPP.

4. Section 4.3 of Appendix 4 to the WPC SEPP applies to the 20 dwellings which are proposed to be constructed as part of the proposed development. The maximum height permissible on the subject site is 12m in the R3 zone and 9m in the R2 zone under the Appendix 4 to the WPC SEPP. All the proposed dwellings comply with the height control.

5. There is no floor space ratio control in the WPC SEPP (Appendix 4) which applies to the subject site.

6. The subject site is mapped on the Residential Dwelling Map in the WPC SEPP (Appendix 4) as having a dwelling density of 25 dwellings per hectare in the R3 zone, and a dwelling density of 20 dwellings per hectare in the R2 zone; and

1. The proposed development achieves the density target as shown on Drawing DA 05 Revision 6 and complies with s 4.1B(3).

7. Section 6.1 of the WPC SEPP (Appendix 4) applies to the proposed development. The parties submit, and I am satisfied that, adequate arrangements have been made to make public infrastructure available to the development when required; and

1. The DA is accompanied by a letter from Qalcheck that confirms the subject site will be serviced with adequate sewer infrastructure;

2. The DA was also referred to Sydney Water and Endeavor Energy who have confirmed that electricity and water can be available to the Site. Copies of these referral response are attached to the conditions of consent at Annexure A.

4. The northern portion of the subject site is identified as being bush fire prone and includes areas identified as Vegetation Category 2 and Vegetation Category 3 on the on the Bushfire Prone Lands Map. The proposed development is integrated development requiring approval from NSW Rural Fire Services (RFS) under s 100B the Rural Fires Act 1997. The applicant submitted a Bushfire Report with the application and the DA was referred to the RFS, who issued General Terms of Approval for the Development on 2 November 2022;

5. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the applicant’s amended DA is accompanied by a BASIX certificate (Certificate No. 1374118M issued by es2 design dated 17 February 2023).

6. In relation to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the parties advise, and I am satisfied that:

1. Chapter 2 of the Biodiversity SEPP seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation; and

1. The subject site is within a well-established retail and residential area, having historically been used for urban purposes, and is devoid of significant trees;

2. The DA is supported by a tree impact assessment report, and is it proposed to retain the existing trees in the RE1 zone land;

2. The, now repealed, Chapter 9 (Hawkesbury-Nepean River) of the Biodiversity SEPP applies to the proposed development through savings provisions contained at s 6.65 of the Biodiversity SEPP. A consent authority must consider the matters referred to Pt 9.2 of the former Biodiversity SEPP. The parties advise, and I agree, that the matters for consideration under Pt 9.2 have been addressed in the following reports which accompany the amended DA:

1. Statement of Environmental Effects – Supplementary Report prepared by The Bathla Group dated 24 January 2023;

2. Preliminary Site Investigation (275 Eighth Avenue) prepared by Geotesta Pty Ltd dated 26 August 2021;

3. Preliminary Site Investigation (280 Eighth Avenue) prepared by Geotesta Pty Ltd dated 21 February 2022;

4. Stage 2 Detailed Site Investigation (280 Eighth Avenue) prepared by Sydney Environmental Group dated 13 January 2023;

5. Remediation Action Plan (280 Eighth Avenue) prepared by Sydney Environmental Group dated 17 January 2023;

6. Geotechnical Site Investigation Report (275 Eighth Avenue) prepared by Geotesta Pty Ltd dated 23 August 2021;

7. Geotechnical Site Investigation Report (280 Eighth Avenue) prepared by Geotesta Pty Ltd dated 10 February 2022;

8. Arboricultural Impact Assessment and Tree Protection Plan prepared by Tree Survey Pty Limited dated 21 February 2023;

9. Civil engineering plans prepared by Enspire Solutions dated 24 February 2023; and

10. Civil Engineering / Stormwater Management Report prepared by Enspire Solutions dated 17 February 2023.

7. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), s 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise, and I am satisfied that:

1. Preliminary Site Contamination Investigation reports have been prepared for the subject site. Based on the assessments undertaken as part of the preliminary site investigations, the land at 275 Eighth Avenue is considered to have a low risk of soil contamination and suitable for the proposed residential land use. The land at 280 Eighth Avenue is considered generally to have a low-medium risk of soil contamination, but a localised medium to high risk around the shed vicinity and the existing dwellings;

2. A Stage 2 Detailed Site Investigation report has been prepared for 280 Eighth Avenue, following the recommendations in the Preliminary Site Contamination Investigation report. The report confirms that the land can be made suitable for the proposed residential land use following a Remediation Action Plan (RAP);

3. Conditions 131,132, 133 and 134 of the conditions of consent address site contamination and require compliance with the Resilience SEPP.

8. The parties submit, and I am satisfied, that the DA as amended has taken into consideration the following relevant provisions in the Liverpool Growth Centres Development Control Plan 2021 (the DCP) such that the controls in those chapters are met or if they are not met they achieve the objectives of those controls as required under s 4.15(3A)(b) of the EPA Act:

1. Part 1 - Introduction;

2. Part 2 – Precinct Planning Outcomes;

3. Part 3 – Neighbourhood and Subdivision Design;

4. Part 4 – Development in residential zones; and

5. Schedule 1 – Austral and Leppington North Precincts.

9. Also:

1. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been so satisfied; and

2. Approval of the proposed development is in the public interest.

10. Further, 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.

11. 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.

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. The Court notes that:

1. The Applicant’s amended DA is accompanied by a BASIX Certificate (Certificate No. 1374118M issued by es2 design dated 17 February 2023).

14. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA-473/2022 for subdivision of land creating 78 Torrens title lots over two stages, tree removal, construction of 20 dwellings, construction of public roads, stormwater drainage and associated site works at 275 and 280 Eighth Avenue, Austral, subject to the conditions at Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 03 August 2023