UPG 217 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1296

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 217 Pty Ltd v Liverpool City Council [2023] NSWLEC 1296

Hearing dates:

Conciliation conference on 19 April 2023 and 23 May 2023

Date of orders:

14 June 2023

Decision date:

14 June 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The Applicant’s written section 4.6 request dated 23 May 2023 to vary section 4.1B of Appendix 4 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-1312/2021, as amended, for the demolition of existing structures, site remediation, and the proposed Torrens title subdivision of an existing allotment into two super lots, drainage works and associated civil works on land legally described as Lot 834 in DP 2475 and known as 75-79 Tenth Avenue, Austral, NSW, 2179, and land legally described as Lot 199 in DP1284975 and known as 80-90 Eleventh Avenue, Austral, NSW, 2179, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – Section 4.6 request to vary minimum dwelling density development standard – subdivision – 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

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) 2021, s 1.4, Appendix 4, ss 2.6, 2.7, 4.1, 4.1AB, 4.1B, 4.6, 5.9, 6.1

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

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Texts Cited:

Liverpool Community Participation Plan 2019

Category:

Principal judgment

Parties:

UPG 217 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
L Nurpuri (Respondent)

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

File Number(s):

2022/331013

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal by Liverpool City Council (the Respondent) of development application No DA-1312/2021, and have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

2. 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 19 April 2023. I presided over the conciliation conference.

3. 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.

4. This development application seeks consent for the demolition of existing structures, site remediation and Torrens title subdivision of an existing allotment into two super lots, drainage works and associated civil works. The agreement between the parties involves the Applicant amending the development application with the agreement of the Respondent, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000. Amongst other amendments, this included incorporating neighbouring lots into the development application due to ancillary works along the land immediately adjoining 75-79 Tenth Avenue, Austral. Subsequently, the development application which originally applied only to 75-79 Tenth Avenue, Austral, now proposes works on land legally described as Lot 834 in DP 2475 and known as 75-79 Tenth Avenue, Austral, NSW, 2179, and land legally described as Lot 199 in DP1284975 and known as 80-90 Eleventh Avenue, Austral NSW 2179 (the site).

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. 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 pursuant to the requirements of s 4.15(1) of the EPA Act. For the following reasons I accept that the proposed development satisfies all relevant jurisdictional prerequisites:

1. Landowner’s consent has been provided for both properties that make up the subject site.

2. The development application was not required to be notified under the Liverpool Community Participation Plan 2019 due to the lot size and nature of the application. However, it was lodged as integrated development and accordingly referred to the NSW Rural Fire Service. General Terms of Approval were subsequently provided, dated 23 May 2022.

3. The State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growths SEPP) was applicable to the development application at the time of lodgement. The State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (WPC SEPP) commenced on 1 March 2022. Pursuant to the WPC SEPP, the Growths SEPP was repealed and all relevant provisions transferred. However, pursuant to WPC SEPP s 1.4, all transferred provisions are to be construed as if they had not been so transferred.

4. WPC SEPP Appendix 4- Liverpool Growth Centres Precinct Pan (Precinct Plan) is applicable to the site.

5. Pursuant to the Precinct Plan, the site is zoned R3 Medium Density Residential. The parties submit and, based on this and the information provided in the Statement of Environmental Effects, I accept that the proposed development meets the objectives of the R3 Zone.

6. Subdivision of land is permitted with consent under s 2.6 of the Precinct Plan, and demolition of a building or work may be carried out with consent under s 2.7 of the Precinct Plan.

7. Pursuant to Precinct Plan s 4.1, the site is not mapped with a minimum lot size on the relevant lot size map. However, s 4.1AB(9) provides for a minimum lot size of 2000m² for a residential flat building on this site if the dwelling density (per hectare) shown on the Residential Density Map in relation to the land is 25. This site is mapped with a minimum dwelling density of 25 dwellings per hectare. The two lots proposed in this application are both greater than 2000m², and a condition of consent has been imposed that requires both proposed lots to be developed for the purposes of a residential flat building, pending future consent.

8. It is therefore the intention that, subject to said future consent, the site will also meet the minimum residential density standard. However, the proposed subdivision of the site into two lots does not initially comply with the minimum residential density standard established pursuant to Precinct Plan s 4.1B. Section 4.1B reads:

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.

9. For completeness, a written request to vary the residential density development standard has been made pursuant to the provisions of Precinct Plan s 4.6. This section requires a written request which demonstrates that compliance with the residential density development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. Pursuant to Precinct Plan s 4.6, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R3 Medium Density Residential Zone and the Residential Density development standard, notwithstanding the non-compliance with the standard. Further, the non-compliance does not create any additional adverse impacts.

2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of the residential density standard is the result of a staged planning process that is envisaged by s 4.1B, whereby a residue lot with restrictions is created. Further, the non-compliance itself is intended to be temporary, and due to the proposed restrictions associated with Lots 1 and 2, the development standard will be met through subsequent development applications on the property. This facilitates the orderly and economic development of the site and will achieve the objective of the development standard.

3. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

10. Pursuant to the requirements of Precinct Plan s 5.9 and Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, as tree removal is proposed to facilitate the construction of roads, bulk earthworks and provision of services, the Class 1 application is supported by a Preliminary Tree Assessment report. Conditions 125 and 126 address the removal of trees identified in this report.

11. Pursuant to the requirements of Precinct Plan s 6.1, based on the approval issued by Endeavour Energy, letter issued by Sydney Water, letter issued by Qalchek and the parties’ submissions, I am satisfied that all essential public utility infrastructure can be made available at the site.

12. The parties submit and I accept that, based on the information contained in the Preliminary Site Investigation Report and the requirements of condition 172 of the conditions of consent, the land will be made suitable for the intended development prior to the release of the subdivision certificate as required pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

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 Respondent agrees to the Applicant amending development application No DA-1312/2021, pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000, in accordance with the following amended plans and documents:

Drawing No and Revision		Title	Prepared by	Date
Subdivision and Landscaping Plans
1	Drawing No. DA01 Revision 2	Site Analysis	The Bathla Group	8 July 2022
2	Drawing No. DA02 Revision 2	Subdivision Plan
3	LP-01, Revision A	Street Tree Plan		17 May 2022
Engineering Plans
2	Drawing No. 210105-DA-C01.01 Revision 5	Cover Sheet and Drawing Schedule	Enspire Solutions Pty Ltd	17 May 2023
	Drawing No. 210105-DA-C01.21 Revision 5	Specification Notes
	Drawing No. 210105-DA-C01.41 Revision 5	General Arrangement Plan
	Drawing No. 210105-DA-C02.01 Revision 4	Demolition Plan
	Drawing No. 210105-DA-C03.01 Revision 5	Erosion and Sediment Control Plan
	Drawing No. 210105-DA-C03.21 Revision 5	Erosion and Sediment Control Details
	Drawing No. 210105-DA-C03.31 Revision 4	Temporary Sediment Basin Plan and Details
	Drawing No. 210105-DA-C04.01 Revision 5	Cut and Fill Plan
	Drawing No. 210105-DA-C04.21 Revision 5	Cut and Fill Sections
	Drawing No. 210105-DA-C05.01 Revision 6	Siteworks and Stormwater Management Plan – Sheet 01
	Drawing No. 210105-DA-C05.02 Revision 5	Siteworks and Stormwater Management Plan – Sheet 02
	Drawing No. 210105-DA-C06.01 Revision 5	Road Typical Cross Sections
	Drawing No. 210105-DA-C07.01 Revision 5	Road Longitudinal Sections
	Drawing No. 210105-DA-C11.01 Revision 5	Pavement Signage and Linemarking Plan
	Drawing No. 210105-DA-C14.01 Revision 5	Siteworks Details
	Drawing No. 210105-DA-C18.01 Revision 5	Bio-retention Basin Plan and Detail – Sheet 01
	Drawing No. 210105-DA-C18.02 Revision 5	Bio-retention Basin Plan and Detail – Sheet 02
	Drawing No. 210105-DA-C20.01 Revision 5	Pre-development Catchment Plan
	Drawing No. 210105-DA-C21.01 Revision 5	Post-development and Ultimate Catchment Plan
	Drawing No. 210105-DA-C22.01 Revision 5	Turning Path Plan
	Drawing No. 210105-DA-C23.01 Revision 3	Safety in Design
Reports / Documents
3	Civil Engineering / Stormwater Management Report – Development Application – Revision C		Enspire Solutions Pty Ltd	17 May 2023
4	Letter regarding Sewer / Potable Water servicing of No: 75-79 Tenth Avenue, Austral		Qalchek	12 April 2023
5	Statement of Environmental Effects – Amended – Development Application		Universal Property Group Pty Ltd	22 May 2023
6.	Clause 4.6 Request to Vary a Development Standard: Density		Universal Property Group Pty Ltd	23 May 2023

9. The Court orders:

1. The Applicant’s written section 4.6 request dated 23 May 2023 to vary section 4.1B of Appendix 4 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-1312/2021, as amended, for the demolition of existing structures, site remediation, and the proposed Torrens title subdivision of an existing allotment into two super lots, drainage works and associated civil works on land legally described as Lot 834 in DP 2475 and known as 75-79 Tenth Avenue, Austral, NSW, 2179, and land legally described as Lot 199 in DP1284975 and known as 80-90 Eleventh Avenue, Austral, NSW, 2179, subject to the conditions at Annexure A.

E Washington

Acting Commissioner of the Court

331013.22 Annexure A (1804600, pdf)

**********

Decision last updated: 14 June 2023