UPG 194 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1238

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 194 Pty Ltd v Liverpool City Council [2023] NSWLEC 1238

Hearing dates:

Conciliation conference on 23 February 2023; 14 March 2023; 5 & 18 April 2023

Date of orders:

18 May 2023

Decision date:

18 May 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant’s clause 4.6 written request dated 14 April 2023 to vary clause 4.1B of the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 – Appendix 4 is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to development application No. DA-188/2022, as amended, for the subdivision of land into two (2) x superlots, demolition of existing structures, construction of public road, drainage works and associated site works on land legally described as Lot 416 in DP2475 and known as 420 Fifteenth Avenue, Austral, NSW, 2179, subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2021, s 37

Interpretation Act 1987, s 30A

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy Amendment (Water Catchments) 2022

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, s 6.65 (current); Ch 9, Pt 9.2 (repealed)

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, s 1.4; Appendix cll 2.3, 2.6, 2.7, 4.1AB, 4.1B, 4.6, 6.1

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

State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (repealed)

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Texts Cited:

Liverpool Community Participation Plan

Liverpool Growth Centres Precinct Development Control Plan 2021

Category:

Principal judgment

Parties:

UPG 194 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

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

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

File Number(s):

2022/312237

Publication restriction:

Nil

Judgment

1. These proceedings arise following Liverpool City Council’s (Council) refusal of the applicant’s Development Application No. DA-188/2022 (DA) for the subdivision of land into two superlots, demolition of existing structures and the construction of a public road, drainage works and associated site works on Lot 416 in DP2475 also known as 420 Fifteenth Avenue, Austral (the site).

2. The appeal is brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), and the background facts and contentions are set out in the Council’s Statement of Facts and Contentions dated 7 December 2022.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 23 February 2023. I 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 them. The decision involved the Court upholding the appeal and granting development consent to an amended development application on a conditional basis.

5. The material comprising the Amended DA is listed in Annexure A to the parties signed s34 agreement and addresses the Council’s contentions as follows:

1. In response to Contention 1 (Proposed Road Design), the Road Design – Typical Road Cross Sections (Drawing No. C5.101 Issue C) has been amended to include tree pits in the street carriageway, designed in accordance with the Liverpool Growth Centres Precinct Development Control Plan 2021 and Council WSUD measures. Temporary turning heads have been included in the Road Design – Proposed Temporary Turning Heads (Drawing No. C4.001 Issue B).

2. In response to Contention 2 (Drainage), the grade of the on-site detention basin batter has been reduced to 1:4 and a maintenance access has also been provided to the basin (Bulk Earthworks Plan, Drawing No. C2.001 Issue D, and Bulk Earthworks Sections – Sheet 1, Drawing No. C2.101 Issue C). The drainage line DA-05/10 has been extended to the existing culvert in the Stormwater Management Plan – Sheet 3 (Drawing No. C7.003 Issue D) and the Stormwater Management Longitudinal Sections – Sheet 2 (Drawing No. C7.402 Issue C). The upstream catchment area plan for the road drainage system has been added at Stormwater Management Upstream Catchments Plan (Drawing No. C7.102 Revision A).   

3. In response to Contention 3 (Contamination) and Contention 6 Particular (a), a covering letter has been provided by Mr Peter Moore of Geosyntec Consultants Pty Ltd confirming that he has reviewed and certified the Preliminary Site Investigation Report prepared by Geotesta Pty Ltd dated 10 February 2023. Mr Moore is a certified consultant under the Environment Institute of Australia and New Zealand’s Certified Environmental Practitioner (Site Contamination) scheme (CEnvP(SC)). The certified Preliminary Site Investigation Report has incorporated Mr Moore’s comments and, accordingly, satisfies Objective (b) of Part 2.3.7 of the Liverpool Growth Centres Precinct Development Control Plan 2021 in adequately addressing the potential site contamination issues at the subdivision stage.

4. In response to Contention 4 (Odour Impact) and Contention 6 Particular (b), the Odour Impact Assessment (Level 1) prepared by Mr John Jiang at EnvironOdour Australia Pty Ltd dated 14 February 2022 has been amended to confirm that Mr Jiang is a Certified Air Quality Professional under the CAQP Scheme administered by the Clean Air Society of Australia and New Zealand (CASANZ). Mr Jiang’s certificate confirming his status as a Certified Air Quality Professional accompanies the amended Odour Impact Assessment (Level 1).

5. In response to Contention 5 (Tree Removal) and Contention 6 Particulars (c) and (d), the Bulk Earthworks Plan (Drawing No. C2.001 Issue D) has been prepared which indicates the extent of the proposed earthworks and identifies the trees of a high retention value which are proposed to be removed. The trees proposed to be removed are necessary to cater for the proposed earthworks. The earthworks will provide for the construction of the proposed roads and the temporary basin, which are necessary for the future development for the site. The existing trees on the area of the site which is to remain undisturbed are not proposed to be removed.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions. There are a number of preconditions to the grant of consent and the parties’ have addressed these matters in written submission filed with the s34 agreement. In that regard, I note the following:

State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Western Parkland City SEPP)

7. The State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growths SEPP) was applicable to the DA at the time of lodgement. The Western Parkland City SEPP commenced on 1 March 2022 and served to repeal the Growths SEPP and transfer relevant provisions of the Western Parkland City SEPP. Section 1.4 of the Western Parkland City 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.

8. Appendix 4 of the Western Parkland City SEPP (Liverpool Growth Centres Precinct Plan) (Precinct Plan) is applicable to the site. The proposed development does not comply with the density controls under the SEPP and the applicant has made application pursuant to cl 4.6 to vary cl 4.1B of the Western Parkland City SEPP – Appendix 4.

9. The site is zoned R3 Medium Density Residential under the Precinct Plan.

10. Subdivision is permitted with consent under cl 2.6 of the Precinct Plan. Demolition is permitted with consent under cl 2.7 of the Precinct Plan.

11. The relevant clauses of the Precinct Plan have been considered and I am satisfied that:

Clause	Requirement	Proposal
Zone Objectives
Clause 2.3	The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R3 Zone are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a medium density residential environment.	The Amended DA is consistent with the objectives of the R3 Zone. The proposed subdivision works are to provide for future medium density residential development.
Lot Sizes
Clause 4.1AB	The minimum permitted lot size on the site for multi dwelling housing is 375m2, where the dwelling density for the site is 25 dwellings per hectare.	The two proposed lots are both greater than 375m2. Proposed Lot 1 has an area of 4046m2 and Proposed Lot 2 has an area of 4748m2.
Residential Density
Clause 4.1B	The minimum dwelling density for the site is 25 dwellings per hectare.	As the Amended DA seeks development consent for 2 superlots, the application does not comply with the minimum density requirements under cl 4.1B. Subject to a future development application, Lot 1 will have a minimum dwelling yield of 10 dwellings and Lot 2, will have a minimum yield of 12 dwellings. A cl 4.6 Variation in support of a departure from the standard.
Clause 4.6	The Amended DA includes a cl 4.6 written request to vary cl 4.1B in respect to the minimum residential density. The cl 4.6 request demonstrates that compliance with cl 4.1B is unreasonable or unnecessary in the circumstances of the DA.
Public Utility Infrastructure
Clause 6.1	The consent authority must not grant development consent unless it is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.	Water, sewer, electricity and telecommunication services are available to the site and will be connected to the proposed development in accordance with relevant authority requirements.

Clause 4.6 written request to vary cl 4.1B of the Western Parkland City SEPP – Appendix 4

12. In upholding the applicant’s cl 4.6 written request for a variation of the minimum 25 dwelling density standard set by cl 4.1B of the SEPP, I understand that the standard will be met by subsequent approvals and stages of the development.

13. In that circumstance, in exercising the functions of the consent authority, pursuant to cl 4.6(4)(a), I am satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will 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…

14. For the purposes of cl 4.6(5), the Secretary of the Department’s concurrence to the variation is assumed (Planning Circular PS 18-003 dated 21 February 2018) and I have considered the matters raised in subcl 4.6(5).

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

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

16. 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:

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.

17. A Stage 1 – Site Contamination Investigation been prepared by Geotesta for the site. Based on the findings of this investigation, the site has a low risk of contamination and is considered to be suitable for the proposed development application, with no requirement for further investigation or preparation of a remediation action plan.

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

18. The State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments Amendment SEPP) commenced on 21 November 2022 and served to repeal the previous Chs 6 to 12 of the Biodiversity and Conservation SEPP and insert a new Ch 6 (Water Catchments).

19. Section 6.65 of the Biodiversity and Conservation SEPP provides that the former Chapters continue to apply to a development application which was lodged, but not fully determined, before the commencement of the Water Catchments Amendment SEPP.

20. The DA was lodged on 22 February 2022, prior to the commencement of the Water Catchments Amendment SEPP. This appeal was commenced on the deemed refusal of the DA, as such, the DA has not yet been fully determined and the former Chapters of the Biodiversity and Conservation SEPP apply to the DA.

21. Former Ch 9 (Hawkesbury-Nepean River) of the Biodiversity and Conservation SEPP applies to the proposed development.

22. A consent authority must consider the matters referred to in Pt 9.2 of the Biodiversity and Conservation SEPP.

23. The matters for consideration under Pt 9.2 have been addressed in the following reports which accompany the Amended DA:

1. Aboriginal Due Diligence Assessment prepared by Apex Archaeology dated 26 November 2021;

2. Bushfire Protection Assessment prepared by Eco Logical Australia dated 16 December 2021;

3. Geotechnical Site Investigation Report prepared by Geotesta Pty Ltd dated 17 December 2021;

4. Odour Impact Assessment (Level 1) prepared by EnvironOdour Australia Pty Ltd dated 14 February 2022;

5. Stage 1 – Site Contamination Investigation prepared by Geotesta Pty Ltd dated 10 February 2023; and

6. Civil engineering plans prepared by ACOR Consultants dated 2 March 2023.

Notification of DA and public interest considerations

24. The DA did not require notification or advertising in accordance with Council’s Community Participation Plan. The DA is not a development listed in Table 1 or 2 in the Community Participation Plan which requires notification.

25. 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 such, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

26. The Court notes:

1. The Council agrees to the applicant amending Development Application No. DA-188/2022, pursuant to section 37 of the Environmental Planning and Assessment Regulation 2021, in accordance with the following amended plans and documents described below:

Drawing No and Revision		Title	Prepared by	Date
Engineering Plans
1	Drawing No. C1.001 Issue D	Cover Sheet and Drawing Index	ACOR Consultants Pty Ltd	2 March 2023
	Drawing No. C1.101 Issue C	Notes and Legends		16 February 2023
	Drawing No. C1.301 Issue C	Overall Layout Plan		16 February 2023
	Drawing No. C2.001 Issue D	Bulk Earthworks Plan		2 March 2023
	Drawing No. C2.101 Issue C	Bulk Earthworks Sections – Sheet 1		16 February 2023
	Drawing No. C2.102 Issue C	Bulk Earthworks Sections – Sheet 2		16 February 2023
	Drawing No. C3.001 Issue D	General Arrangement Siteworks Plan		2 March 2023
	Drawing No. C4.001 Issue B	Road Design – Proposed Temporary Turning Heads		2 March 2023
	Drawing No. C5.001 Issue D	Road Design – Alignment Control Plan & Pavement Plan		2 March 2023
	Drawing No. C5.101 Issue C	Road Design – Typical Road Cross Sections		16 February 2023
	Drawing No. C5.201 Issue C	Road Design – Longitudinal Sections – Sheet 1		16 February 2023
	Drawing No. C5.202 Issue C	Road Design – Longitudinal Sections – Sheet 2		16 February 2023
	Drawing No. C7.001 Issue D	Stormwater Management Plan – Sheet 1		2 March 2023
	Drawing No. C7.002 Issue D	Stormwater Management Plan – Sheet 2		2 March 2023
	Drawing No. C7.003 Issue D	Stormwater Management Plan – Sheet 3		2 March 2023
	Drawing No. C7.101 Issue C	Stormwater Management – Catchment Plan		16 February 2023
	Drawing No. C7.102 Issue A	Stormwater Management – Upstream Catchments Plan		17 February 2023
	Drawing No. C7.201 Issue D	Stormwater Management – Typical Details and Sections – Sheet 1		2 March 2023
	Drawing No. C7.202 Issue D	Stormwater Management – Typical Details and Sections – Sheet 2		2 March 2023
	Drawing No. C7.203 Issue D	Stormwater Management – Typical Details and Sections – Sheet 3		2 March 2023
	Drawing No. C7.301 Issue C	Stormwater Management – Minor Storm Calculations		16 February 2023
	Drawing No. C7.302 Issue C	Stormwater Management – Major Storm Calculations		16 February 2023
	Drawing No. C7.401 Issue C	Stormwater Management – Longitudinal Sections – Sheet 1		16 February 2023
	Drawing No. C7.402 Issue C	Stormwater Management – Longitudinal Sections – Sheet 2		16 February 2023
	Drawing No. C8.001 Issue C	Soil Erosion and Sediment Control Plan – Sheet 1		16 February 2023
	Drawing No. C8.002 Issue C	Soil Erosion and Sediment Control Plan – Sheet 2		16 February 2023
	Drawing No. C8.003 Issue C	Soil Erosion and Sediment Control Plan – Sheet 3		16 February 2023
	Drawing No. C8.101 Issue C	Soil Erosion and Sediment Control – Notes and Details		16 February 2023
Landscape Plans
2	Drawing No. LP-01 Revision B	Public Domain Plan	The Bathla Group	13 March 2023
Reports / Documents
3	Odour Impact Assessment (Level 1)		EnvironOdour Australia Pty Ltd	14 February 2022
4	Preliminary Site Investigation Report		Geotesta Pty Ltd	10 February 2023

27. The Court orders:

1. The applicant’s clause 4.6 written request dated 14 April 2023 to vary clause 4.1B of the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 – Appendix 4 is upheld.

2. The appeal is upheld.

3. Development consent is granted to development application No. DA-188/2022, as amended, for the subdivision of land into two (2) x superlots, demolition of existing structures, construction of public road, drainage works and associated site works on land legally described as Lot 416 in DP2475 and known as 420 Fifteenth Avenue, Austral, NSW, 2179, subject to the conditions in Annexure A.

……………………

S Dixon

Senior Commissioner of the Court

Annexure A (1134458, pdf)

**********

Decision last updated: 18 May 2023