UPG 204 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1254

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 204 Pty Ltd v Liverpool City Council [2023] NSWLEC 1254

Hearing dates:

Conciliation conference on 14 April, 19 April and 24 April 2023

Date of orders:

24 May 2023

Decision date:

24 May 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) Leave is granted to the Applicant to rely upon the amended material listed in Annexure A.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA-1310/2021, for the demolition of existing structures, tree removal, site remediation and the proposed Torrens title subdivision of land into 12 lots comprising 10 residential lots, 1 residue lot and 1 superlot, construction of a public road, stormwater drainage and other associated site works on land legally described as Lot 882 in DP2475 and known as 85 Ninth Avenue, Austral NSW 2179, subject to the conditions at Annexure B.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 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 2

State Environmental Planning Policy (Precincts – Western Parkland City) 2020,1 s 1.4, Appendix 4, ss 2.6, 2.7, Pt 4, 4.1, 4,1AA, 5.9, 6.1

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

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

Category:

Principal judgment

Parties:

UPG 204 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

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

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

File Number(s):

2022/329476

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal by Liverpool City Council (the Respondent) of development application DA 1310/2021. This development application seeks consent for the demolition of existing structures, tree removal, site remediation works and the proposed Torrens title subdivision of land in to 12 lots comprising 10 residential lots, 1 residue lot and 1 superlot, construction of a public road, stormwater drainage and other associated site works on land legally described as Lot 882 in DP2475 and known as 85 Ninth Avenue, Austral.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. 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 14 April 2023. I presided over the conciliation conference.

4. After 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.

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 one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 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. From this I note the following:

1. Landowner’s consent has been provided in the Class 1 Application.

2. The development application was notified from 11-28 April 2022. No submissions were received in this period. The application was also lodged as integrated development and referred to the NSW Rural Fire Service. General Terms of Approval were received, dated 30 May 2022.

3. The State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growths 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 Growths SEPP and transfer relevant provisions to 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. Subsequently, WPC SEPP Appendix 4 - Liverpool Growth Centres Precinct Plan (Precinct Plan) applies to the site.

4. Pursuant to the Precinct Plan the site is partly zoned R2 Low Density Residential and partly R3 Medium Density Residential. Subdivision of land is permitted with consent pursuant to s 2.6 of the Precinct Plan and demolition also permitted with consent pursuant to s 2.7. The proposed subdivision is sought for the part of the property subject to R2 zoning. The parties submit and, based on this and the information in the Statement of Environmental Effects (SEE) that the proposed development meets the objectives of this zone by providing for future residential development.

5. Part 4 of the Precinct Plan speaks to development standards. Of these, the only applicable development standards are regarding lot sizes. Pursuant to s 4.1, the site is not mapped with a minimum lot size on the relevant lot size map.

6. Section 4.1AA states:

4.1AA   Subdivision resulting in lots between 225–300m2

(1)  This section applies to land in the following zones—

(a)  Zone R2 Low Density Residential,

(b)  Zone R3 Medium Density Residential.

(2)  Development consent maybe granted to the subdivision of land to which this section applies resulting in the creation of a lot that has an area of less than 300m² (but not less than 225m²) 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.

7. The parties submit and, based on the drawings in the amended application I accept that no lots are proposed with a lot size less than 225m², and for the proposed lots with a lot size of less than 300m², a building envelope plan has been provided that demonstrates a sufficient building envelope for a dwelling house on each relevant lot.

8. Pursuant to Precinct Plan s 5.9 Preservation of Trees or Vegetation, tree removal is proposed to facilitate the construction of roads, the provision of services, and bulk earthworks to provide sufficient building platforms. The development application is supported by an arborist report and from this, the parties submit, and I accept that the proposed tree removal is acceptable.

9. Section 6.1 of the Precinct Plan requires me to be 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. The parties submit and, based on this and Appendix C and D of Annexure A, I am satisfied that, subject to conditions, all essential public utility infrastructure can be made available at the site when required.

10. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, based on the parties’ submission and the imposition of condition 164 of the conditions of consent (Annexure B) I am satisfied that the land will be adequately remediated as necessary to make it suitable for the purpose for which the development is proposed to be carried out.

11. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies as the proposed application seeks consent to remove existing trees on the site. Subsequently a preliminary tree assessment report prepared by Monaco Designs Pty Ltd has been provided with the Class 1 Application, which assesses all trees on site that are proposed to be removed, in accordance with Ch 2 of this SEPP.

6. For these reasons 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.

7. 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.

8. The Court notes:

1. The parties have reached an agreement in a conciliation conference conducted pursuant to section 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 Respondent, as the relevant consent authority has agreed under clause 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), consents to the Applicant amending the development application No. DA-1310/2021 in accordance with the following:

Document Title	Ref.	Date	Prepared by
Cover Sheet and Drawing Schedule	Drawing No 210046-DA-C01.01 Revision 6	24.06.2022	Enspire Solutions Pty Ltd
General Notes	Drawing No 210046-DA-C01.21 Revision 5	24.09.2022	Enspire Solutions Pty Ltd
General Arrangement Plan	Drawing No 210046-DA-C01.41 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Demolition Plan	Drawing No 210046-DA-C02.01 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Erosion and Sediment Control Plan	Drawing No 210046-DA-C03.01 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Erosion and Sediment Control Details	Drawing No 210046-DA-C03.21 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Sediment Basin Plan and Sections	Drawing No 210046-DA-C03.31 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Cut and Fill Plan	Drawing No 210046-DA-C04.01 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Site Cut and Fill Sections	Drawing No 210046-DA-C04.21 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Siteworks and Stormwater Management Plan	Drawing No 210046-DA-C05.01 Revision 6	24.06.2022	Enspire Solutions Pty Ltd
Stormwater Staging Arrangement	Drawing No 210046-DA-C05.51 Revision 4	24.06.2022	Enspire Solutions Pty Ltd
Road Typical Cross Sections	Drawing No 210046-DA-C06.01 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Road Longitudinal Sections	Drawing No 210046-DA-C07.01 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Pavement, Signage and Linemarking Plan	Drawing No 210046-DA-C11.01 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Siteworks Details Sheet 01	Drawing No 210046-DA-C14.01 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Siteworks Details Sheet 02	Drawing No 210046-DA-C14.02 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Stormwater Details	Drawing No 210046-DA-C18.01 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Basin Details	Drawing No 210046-DA-C18.51 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Pre-Development Catchment Plan	Drawing No 210046-DA-C20.01 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Post-Development Catchment Plan	Drawing No 210046-DA-C20.11 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
External Catchment Plan	Drawing No 210046-DA-C20.21 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Turning Path Plan	Drawing No 210046-DA-C22.01 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Safety Design	Drawing No 210046-DA-C23.01 Revision 5	24.06.2022	Enspire Solutions Pty Ltd
Civil Engineering /Stormwater Management Report	Rev. C	24.06.2022	Enspire Solutions Pty Ltd
Flood Impact Assessment	Rev 00	28.09.2021	Rhelm Pty Ltd
TUFLOW Model	JI526_TUFLOW_01	Rhelm Pty Ltd

9. The Court orders:

1. Leave is granted to the Applicant to rely upon the amended material listed in Annexure A.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA-1310/2021, for the demolition of existing structures, tree removal, site remediation and the proposed Torrens title subdivision of land into 12 lots comprising 10 residential lots, 1 residue lot and 1 superlot, construction of a public road, stormwater drainage and other associated site works on land legally described as Lot 882 in DP2475 and known as 85 Ninth Avenue, Austral NSW 2179, subject to the conditions at Annexure B.

E Washington

Acting Commissioner of the Court

Annexure A (157851, pdf)

Annexure B (1097862, pdf)

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Decision last updated: 24 May 2023