UPG 222 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1267

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 222 Pty Ltd v Liverpool City Council [2023] NSWLEC 1267

Hearing dates:

Conciliation conference 17 April 2023

Date of orders:

1 June 2023

Decision date:

01 June 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Court grants the Applicant leave to amend Development Application No DA-930/2022 in accordance with the following amended documents described below:

Title		Prepared by	Date
1	Arboriginal Due Diligence Assessment	Apex Archaeology	18 December 2022
2	Demolition Noise & Vibration Management Plan	Acoustic Dynamics	10 February 2023
3	Amended Demolition Work Plan	The Batha Group	April 2023

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA-930/2022, for the demolition of existing structures on land legally described as Lot 689 in DP 2475 and known as 70 Thirteenth Avenue, Austral, NSW, 2179, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: Demolition – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.2, 4.15, 8.7

Environmental Planning and Assessment Regulation 2021 s 23

Land and Environment Court Act 1979 s 34

State Environmental Planning Policy (Precincts – Western Parkland City) 2021 appendix 4 s 2.7 (2.3)

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

Texts Cited:

Liverpool Community Participation Plan 2019

Category:

Principal judgment

Parties:

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

Representation:

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

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

File Number(s):

2022/335889

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Liverpool City Council’s (Council) deemed refusal of Development Application No DA-930/2022 (the application). The application seeks consent for the demolition of the existing structures on land legally described as Lot 689 in DP 2475 and known as 70 Thirteenth Avenue, Austral, NSW, 2179 (the Site).

2. 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 17 April 2023. I presided over the conciliation conference. Following the conciliation conference, the parties reached an agreement based on amended plans and documents that they consider resolves the contentions before the Court. That agreement is for the grant of consent to the application, as amended, subject to conditions.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The Site is owned by the Applicant. For the purposes of s 4.12 of the EPA Act and s 23 of Environmental Planning and Assessment Regulation 2021(EP&A Regulation), the owner’s consent to the making of the development application is included with the application.

2. State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (WPC SEPP) is applicable to the Site. In particular, Appendix 4 of the WPC SEPP (Liverpool Growth Centres Precinct Plan) (Precinct Plan) is applicable to the Site. The Site is zoned R2 Low Density Residential under the Precinct Plan. Demolition is permitted with consent under s 2.7 of the Precinct Plan.

3. Pursuant to s 2.3 of the Precinct Plan I have considered the objectives of the R2 Low Density Residential zone in determining the application.

4. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), prior to the grant of consent, I am required to consider whether the land is contaminated. A Site Investigation Report has been prepared to accompany the application which considers the suitability of the Site. As the DA is limited to demolition works only, I am satisfied that the land is suitable for the proposed works.

5. The application was not required to be placed on public notification as the DA is not a development listed in Table 1 or 2 in the Liverpool Community Participation Plan 2019 which requires notification.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

6. The Court orders that:

1. The Court grants the Applicant leave to amend Development Application No DA-930/2022 in accordance with the following amended documents described below:

Title		Prepared by	Date
1	Arboriginal Due Diligence Assessment	Apex Archaeology	18 December 2022
2	Demolition Noise & Vibration Management Plan	Acoustic Dynamics	10 February 2023
3	Amended Demolition Work Plan	The Batha Group	April 2023

2. The Appeal is upheld.

3. Development consent is granted to Development Application No DA-930/2022, for the demolition of existing structures on land legally described as Lot 689 in DP 2475 and known as 70 Thirteenth Avenue, Austral, NSW, 2179, subject to the conditions at Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A

Decision last updated: 01 June 2023