UPG 222 Pty Ltd v Liverpool City Council

[2024] NSWLEC 1265

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

UPG 222 Pty Ltd v Liverpool City Council [2024] NSWLEC 1265

Hearing dates:

Conciliation conference on 18 April 2024

Date of orders:

22 May 2024

Decision date:

22 May 2024

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-73/2023 as amended for the proposed subdivision of land into 30 Torrens Title lots over 3 stages, including construction of public roads, tree removal and associated site works on land legally described as Lot 689 in DP2475 and known as 70 Thirteenth Avenue, Austral 2179 and Lot 688 in DP2475 and known as 80 Thirteenth Avenue, Austral 2179, 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 4.14, 4.15, 4.16, 4.46, 8.7, 10.3, Sch 1, s 7

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2021

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Part 6.2, s 6.13

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4, ss 2.2, 2.3, 2.6, 4.1AA, 4.1AB, 4.1B, 6.1

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Texts Cited:

Liverpool Community Engagement Strategy 2022

Liverpool Growth Centres Development Control Plan 2021

NSW Rural Fire Service, Liverpool Bush Fire Prone Land Map

Planning for Bush Fire Protection 2019

Category:

Principal judgment

Parties:

UPG 222 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
M Hawley (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/144705

Publication restriction:

Nil

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-73/2023 (the DA) for the proposed subdivision of land into 30 Torrens Title lots over 3 stages, including construction of public roads, tree removal and associated site works on land legally described as Lot 689 in DP2475 and known as 70 Thirteenth Avenue, Austral 2179 and Lot 688 in DP2475 and known as 80 Thirteenth Avenue, Austral 2179.

2. The Respondent advised that separately, DA-930/2022, for the demolition of all existing structures on the site, was approved by the Land and Environment Court on 1 June 2023.

3. A s 34 conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties was convened by the Court on 28 August 2023. No agreement was reached, and a hearing was set down for 18 and 19 April 2024.

4. On 14 March 2024, the Applicant was granted leave by the Court to rely upon the amended plans and material set out in the Applicant’s Notice of Motion filed with the Court on 5 March 2024. An amended Statement of Facts and Contentions was filed with the Court by the Respondent on 26 March 2024.

5. On 17 April 2024, the parties advised the Court that they had reached an in principle s 34 agreement and were in the process of finalising the conditions of consent for the proposed development.

6. At the request of the parties, the Court then made an order on 18 April 2024 adjourning the matter for a s 34 conciliation conference. I presided over the conciliation conference, held on 18 April 2024. At the request of the parties the on-site view was vacated, as no submissions had been received in response to the notification or renotification of the proposed development.

7. A signed s 34 agreement with Annexure A was filed with the Court on 18 April 2024, with further amended plans and additional material (the Further Amended DA) as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

8. The parties advise that the Further Amended DA comprises a number of small amendments to the amended DA, primarily addressing the remaining contention relating to the proposed building envelopes for lots less than 300 m² in area.

9. 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.

10. 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.

11. 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.

12. 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:

Jurisdictional Prerequisites

Owner’s Consent

13. The parties advise that at the time of lodgement of the DA, the site was owned by Filippo and Mirella Pignataro, who provided landowners’ consent for the lodgement of the DA. The parties advise that the site is now owned by the Applicant.

14. Landowner’s consent has also been provided from Domenico Coluccio, the owner of the western adjoining land at 80 Thirteenth Avenue, Austral, for the removal of a number of trees on this land due to the proposed engineering works under the Amended DA (and the Further Amended DA).

The Liverpool Community Engagement Strategy 2022 (Sch 1, Div 2, s 7(1) of the EPA Act)

15. The DA was notified between 17 March 2023 and 3 April 2023, as required under the provisions of the Liverpool Community Engagement Strategy 2022 (the Community Engagement Strategy). No submissions were received in response to that notification.

16. The parties advise that the Amended DA was renotified in accordance with the Community Engagement Strategy between 20 March 2024 and 12 April 2024 as it proposes to create residential lots with a lot size of less than 300 square metres. No submissions were received to the Amended DA during the renotification period.

Conditions

17. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Integrated Development

18. The DA is nominated as integrated development pursuant to s 4.46 of the EPA Act as it requires an authorisation from the NSW Rural Fire Services (RFS) pursuant to s 100B of the Rural Fires Act 1987 (RFA).

19. The parties advise that:

1. the DA was referred to the RFS pursuant to s 100B of the RFA on 17 March 2023. NSW Rural Fire Services issued a Bushfire Safety Authority and general terms of approval for the DA pursuant to s 100B of the RFA on 14 April 2023; and

2. the Amended DA was referred to the RFS on 22 March 2024. RFS issued an updated Bushfire Safety Authority and general terms of approval for the Amended DA on 16 April 2024.

Bushfire Prone Land (Section 4.14 of the EPA Act)

20. Section 4.14(1) of the EPA Act provides that development consent cannot be granted on bushfire prone land unless the consent authority:

is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements); or

has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.

21. The parties advise that:

1. the site is identified as Bushfire Prone Land on the Liverpool Bush Fire Prone Land Map under s 10.3(2) of the EPA Act and that the site is mapped as Vegetation Category 2 and Vegetation Category 3; and

2. a Bushfire Assessment Report has been prepared which confirms that the DA can comply with the RFS Planning for Bush Fire Protection 2019 (PBP) as required under s 4.14(a) of the EPA Act. The Bushfire Assessment Report also provides recommended mitigation measures and construction requirements to reasonably address the aims and objectives of the PBP.

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

22. The State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (WPC SEPP) is the relevant local environmental planning instrument that applies to the site. Appendix 4 (Liverpool Growth Centres Precinct Plan) (the Precinct Plan) of the WPC SEPP applies to the site; and

1. the subject site is zoned R2 – Low Density Residential under s 2.2 of the Precinct Plan;

2. subdivision works are permissible with consent under s 2.6 of the Precinct Plan;

3. section 2.3(2) of the Precinct Plan requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The parties advise that to the extent that the zone objectives are relevant, the Further Amended DA is consistent with the objectives of the R2 Zone;

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

5. in relation to minimum lot size and residential density on the site under the Precinct Plan, the parties advise that:

1. section 4.1AB (Minimum Lot Size) applies to the Site, and in particular, s 4.1AB(3)(b) prescribes a minimum lot size of 300 square metres for a dwelling house if the site has a minimum dwelling density of 15 dwellings per hectare;

2. for proposed lots with a lot size less than 300 square metres, the Further Amended DA relies on s 4.1AA (Subdivision resulting in lots between 225 and 300 square metres). Pursuant to s 4.1AA(2), development consent may be granted to the subdivision of land resulting in the creation of a lot that has an area of less than 300 square metres (but not less than 225 square metres) 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. The Further Amended DA is accompanied by Building Envelope Plans to confirm that those lots are capable of containing a dwelling house which is in compliance with the relevant controls;

3. section 4.1B (Residential Density) applies to the site and prescribes a minimum dwelling density of 15 dwellings per hectare under s 4.1B(3). The Further Amended DA proposes a subdivision of land for 30 future dwellings in an area of 1.21 hectares which equates to a dwelling density of 24.79 dwellings per hectare, and therefore the Further Amended DA complies with s 4.1B.

6. Section 6.1 (Public Utility Infrastructure) of the Precinct Plan applies to the site. The parties advise that water, sewer, and electricity services will be available at the site when required; and

1. the Amended DA is accompanied by a Notice of Anticipated Requirements from Sydney Water and Connection Offers from Endeavour Energy.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

23. The parties advise that the Amended DA proposes the removal of trees to facilitate the engineering site works under the proposed development, and the parties advise that the matters arising out of Chapter 2 (vegetation in non-rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) do not apply in this case. The Applicant is seeking development consent to remove trees under the EPA Act, and an Aboricultural Impact Assessment has been prepared by Tree Survey Pty Ltd dated 13 March 2024 to support removal of the nominated trees.

24. Chapter 6 (Water catchments) of the Biodiversity SEPP applies as the site is located in the Hawkesbury-Nepean catchment. The parties advise, and I am satisfied, that these matters in Part 6.2 of the Biodiversity SEPP have been considered in the following materials accompanying the Amended DA:

1. Engineering plans prepared by Indesco dated 3 April 2024;

2. Stormwater Management Report prepared by Indesco dated 11 March 2023;

3. Arboricultural Impact Assessment prepared by Tree Survey dated 13 March 2023;

4. Aboriginal Due Diligence Assessment prepared by Apex Archaeology dated 25 October 2021;

5. Preliminary Site Investigation Report prepared by Geotesta dated 10 March 2022; and

6. Geotechnical Site Investigation Report prepared by Geotesta dated 10 March 2022.

25. The parties advise, and I agree, that the controls under Chapter 2 of the Biodiversity SEPP have been considered and they are satisfied that the Further Amended DA will have a neutral effect on the quality of water entering the Hawkesbury-Nepean Catchment, and the impact on waterflow to the natural waterbody will be minimised. The Respondent has also considered the controls under s 6.13 and is satisfied that the Further Amended DA will not have an impact on the condition, structure and floristics of native vegetation in the catchment and the development will maintain the scenic quality of the locality.

State Environmental Planning Policy (Resilience and Hazards) 2021

26. 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. the Amended DA is accompanied by a Preliminary Site Investigation Report prepared by Geotesta dated 10 March 2022 which concludes that the site is considered suitable for the proposed land use for residential development, pending a data gap contamination assessment following the demolition of the existing structures on the site;

2. the recommendation for the data gap contamination assessment has been included at Condition 61 of the Conditions of Consent; and

3. The Court can be satisfied that the site is suitable for its proposed use.

State Environmental Planning Policy (Transport and Infrastructure) 2021

27. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the site as the Further Amended DA proposes the installation of a substation. The Respondent must notify the electricity supply authority for the area in which the development is to be carried out, being Endeavour Energy, inviting comments about potential safety risks, and take into consideration any response to the notice. The parties advise that Endeavour Energy has been notified and has not provided a response.

Liverpool Growth Centres Development Control Plan 2021

28. The Further Amended DA as amended has met the requirements of the Liverpool Growth Centres Development Control Plan (the DCP) through the satisfaction of the remaining contentions raised by the Respondent, as detailed on the Joint Experts’ Report on Town Planning matters filed with the Court.

Conclusion

29. Having considered the advice of the parties provided above at [13-28], I am satisfied that:

1. the applicants’ Further Amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. 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 satisfied; and

3. approval of the proposed development is in the public interest.

30. 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.

31. 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.

32. 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.

33. The Court notes that:

1. Liverpool City Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA-73/2023 made on 18 April 2024 to rely on the documents specified below:

Drawing No and Revision		Title		Prepared by	Date
Subdivision Plans
1	Drawing No DA06 Revision 11	Building Envelope Plan		The Bathla Group	8 April 2024
	Drawing No DA08 Revision 11	Solar Diagram_9AM			8 April 2024
	Drawing No DA09 Revision 11	Solar Diagram_10AM			8 April 2024
	Drawing No DA10 Revision 11	Solar Diagram_11AM			8 April 2024
	Drawing No DA11 Revision 11	Solar Diagram_12PM			8 April 2024
	Drawing No DA12 Revision 11	Solar Diagram_1PM			8 April 2024
	Drawing No DA13 Revision 11	Solar Diagram_2PM			8 April 2024
	Drawing No DA14 Revision 11	Solar Diagram_3PM			8 April 2024
	Drawing No DA15 Revision 11	Shadow Compliance Table			8 April 2024
Landscape Plans
2	Drawing No LP-91 Revision 2	Street Tree Plan		The Bathla Group	4 April 2024
Civil Engineering Plans
3	Drawing No 8733-DA-000 Revision H	Cover Sheet		Indesco	3 April 2024
	Drawing No 8733-DA-001 Revision H	General Notes			3 April 2024
	Drawing No 8733-DA-002 Revision H	Tree Removal & Demolition Plan			3 April 2024
	Drawing No 8733-DA-003 Revision H	Staging Plan			3 April 2024
	Drawing No 8733-DA-100 Revision H	Bulk Earthworks Plan			3 April 2024
	Drawing No 8733-DA-101 Revision H	Bulk Earthworks Sections			3 April 2024
	Drawing No 8733-DA-200 Revision H	Engineering Plan Sheet 01 of 02			3 April 2024
	Drawing No 8733-DA-201 Revision H	Engineering Plan Sheet 02 of 02			3 April 2024
	Drawing No 8733-DA-300 Revision H	Road Typical Cross Sections			3 April 2024
	Drawing No 8733-DA-301 Revision H	Road Longitudinal Sections Sheet 01 of 02			3 April 2024
	Drawing No 8733-DA-302 Revision H	Road Longitudinal Sections Sheet 02 of 02			3 April 2024
	Drawing No 8733-DA-310 Revision H	Retaining Wall Plan & Typical Section			3 April 2024
	Drawing No 8733-DA-320 Revision H	Pavement Plan			3 April 2024
	Drawing No 8733-DA-330 Revision H	Signage & Linemarking Plan			3 April 2024
	Drawing No 8733-DA-400 Revision H	Catchment Pre Development			3 April 2024
	Drawing No 8733-DA-401 Revision H	Music & OSD Catchment Plan			3 April 2024
	Drawing No 8733-DA-410 Revision H	OSD Basin No.01 Plan & Sections			3 April 2024
	Drawing No 8733-DA-411 Revision H	OSD Basin No.02 Plan & Sections			3 April 2024
	Drawing No 8733-DA-412 Revision H	OSD Basin Details			3 April 2024
	Drawing No 8733-DA-500 Revision H	Erosion & Sediment Control Details			3 April 2024
	Drawing No 8733-DA-501 Revision H	Erosion & Sediment Control Plan			3 April 2024
	Drawing No 8733-DA-550 Revision H	Swept Path Plan			3 April 2024
Reports / documents
4	Arboricultural Impact Assessment		Tree Survey Pty Limited		13 March 2024

2. The Court ordered on 14 March 2024 that the Applicant pay the Respondent’s costs thrown away as a result of amendments to the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

34. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA-73/2023 as amended for the proposed subdivision of land into 30 Torrens Title lots over 3 stages, including construction of public roads, tree removal and associated site works on land legally described as Lot 689 in DP2475 and known as 70 Thirteenth Avenue, Austral 2179 and Lot 688 in DP2475 and known as 80 Thirteenth Avenue, Austral 2179, subject to the conditions at Annexure A.

……………………….

G Kullen

Acting Commissioner of the Court

Annexure A

**********

Amendments

29 May 2024 - By consent and pursuant to UCPR r 36.17, the decision in these proceedings, published on 22 May 2024, has been varied to alter the Statement of Environmental Effects reference number in Annexure A.

Decision last updated: 29 May 2024