UPG 224 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1466

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 224 Pty Ltd v Liverpool City Council [2023] NSWLEC 1466

Hearing dates:

Conciliation Conference on 7 August 2023

Date of orders:

18 August 2023

Decision date:

18 August 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Deferred development consent is granted to Development Application No. DA-702/2022, as amended, for the Torrens title subdivision of land into 38 Residential lots and two E4 Environmental Living Superlots (giving 40 lots in total), construction of public roads and stormwater drainage on land legally described as Lot 805 and Lot 806 in DP 2475 and known as 200-210 Eleventh Avenue, Austral NSW 2179, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – 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 2021, s 38

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

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

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

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

Texts Cited:

Liverpool City Council, Community Participation Plan, 2022

Category:

Principal judgment

Parties:

UPG 224 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
Dr J Smith (Applicant)
C Morton (Solicitor)(Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2022/295987

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA-702/2022 for Torrens title subdivision of land into 38 Residential lots and two E4 Environmental Living superlots (40 in total), construction of public roads and stormwater drainage works (the Proposed Development) at 200-210 Eleventh Avenue, Austral legally described as Lot 805 and 806, DP 2475 (the Site).

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 has been held on 7 August 2023. I presided over the conciliation conference.

3. At 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. The parties’ experts agree that all Contentions raised in the Amended Statement of Facts and Contentions filed on 19 June 2023 (ASOFAC) have been resolved by the preparation of:

1. the amended plans and documents referred to at [22(1)], and

2. the agreed conditions of consent at Annexure A.

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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. 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 to be the terms of the State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (Western Parkland SEPP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement which I have referred to in order to set out my reasons below.

8. The Proposed Development is integrated development and the development application was referred by the Respondent to the NSW Rural Fire Services (RFS) pursuant to s 100B of the Rural Fires Act 1997 (RF Act). On 24 May 2023, the RFS issued General Terms of Approval for the Proposed Development pursuant to s 100B of the RF Act, a copy of which is Attachment 2 to the conditions of consent at Annexure A.

9. When the Development Applicant was lodged with the Council, the applicable planning policy was the State Environmental Planning Policy (Sydney Region Growth Centre) 2006 (Growths Centres SEPP) which was repealed and transferred to the Western Parkland SEPP in March 2022. Accordingly, the provisions of the Western Parkland SEPP apply to the Site, in particular, Appendix 4 Liverpool Growth Centres Precinct Plan (Liverpool Precinct Plan).

10. The Site is zoned part R2 Low Density Residential and part E4 Environmental Living under the Liverpool Precinct Plan as depicted in the extracts of the relevant zoning maps at Figure 3 of the ASOFAC filed by the Respondent on 19 June 2023.

11. The Proposed Development is permitted with consent under the Liverpool Precinct Plan.

12. I am satisfied that the Respondent Council, as consent authority, has considered the objectives of the zones which apply to the Site in accordance with s 2.3 of the Liverpool Precinct Plan and the parties agree that to the extent that they are relevant, the Proposed Development is consistent with the R2 zone objectives. No works, other than some proposed temporary onsite stormwater detention (OSD) basin and associated engineering works to support the low impact residential development in the R2 land, are proposed on the E4 zoned land and the parties agree that to the extent that the zone objectives for the E4 zone are relevant, the Proposed Development is consistent with them.

13. The portion of the Site that is R2 Low Density Residential is located within Area O on the Residential Density Map. The Development achieves the minimum density target of 15 dwellings per hectare prescribed for Area O and complies with s 4.1B(3) of the Liverpool Precinct Plan as shown on Drawing DA 03 Revision 2 filed 26 May 2023.

14. The proposed E4 portion of the Site is mapped on the Lot Size Map under the Liverpool Precinct Plan as having a minimum Lot size of 2500m². The proposed lots on the E4 portion of the Site are larger than the prescribed 2500m². The R2 portion of the Site is not mapped on the Lot Size Map under s 4.1(2) of the Precinct Plan however, the lots proposed on the R2 portion of the Site each have a lot size of no less than 300m² , which complies with s 4.1AB(3)(b) of the Liverpool Precinct Plan as shown on Drawing DA 03 Revision 2 filed 26 May 2023.

15. Public utility infrastructure is provided for in s 6.1(1) of the Liverpool Precinct Plan which provides that:

6.1 Public utility infrastructure

(1) The consent authority must not grant development consent to development on land to which this Precinct Plan applies 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.

16. I am satisfied that the supply of water, electricity and disposal and management of sewerage are available to the Site because these services will be connected to the Site in accordance with the Authority requirements as detailed in the conditions of consent at Annexure A as follows.

1. The development application was referred to Sydney Water. Sydney Water has confirmed that the portable water should be available to the Stie, and that wastewater servicing should be available by 2025/2026. A copy of Sydney Water response is Attachment 3 to the conditions of consent.

2. The development application was also referred to Endeavor Energy on 30 August 2022. On 30 August 2022, Endeavor Energy confirmed that the site has access to electricity. A copy of the response from Endeavor Energy is Attachment 4 to the conditions of consent.

17. There is a relevant provision in the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) which requires satisfaction prior to the granting of consent to the Proposed Development. Section 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.

18. In order to satisfy this provision, I have considered the Stage 2 Detailed Site Investigation report prepared for Site and filed on 7 August 2023. Based on the further assessments, the report confirms that land can be made suitable for the proposed residential land use following a Remediation Action Plan (RAP) to characterise the existing building footprints following demolition. Accordingly, the Applicant has provided a RAP, filed 7 August 2023, which has been prepared to provide strategies, methodologies and measures to remediate the Site. Accordingly, the Site will be appropriately remediated to be made suitable for the use of the Site for the purpose of the Development.

19. The Amended Development Application, including the development application in the form originally lodged with the Council, was not required to be placed on public notification in accordance with the Council’s Community Participation Plan as there are no lots proposed which are less than 300m².

20. 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 and I adopt the reasons provided by the parties as set out within this judgment.

21. 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.

Notations:

22. The Court notes that:

1. The Council agrees to the Applicant amending Development Application No DA-702/2022 pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, in accordance with the following amended plans and documents described below:

Reports / documents
1	Stage 2 Detailed Site Investigation	Sydney Environmental Group	11 July 2023
2	Remedial Action Plan
3	Subdivision Plan, DA02, Revision 3	The Bathla Group	10 July 2023

2. The amended material referred to in [22(1)] was filed with the Court on 7 August 2023.

Orders:

23. The Court orders that:

1. The appeal is upheld.

2. Deferred development consent is granted to Development Application No. DA-702/2022, as amended, for the Torrens title subdivision of land into 38 Residential lots and two E4 Environmental Living Superlots (giving 40 lots in total), construction of public roads and stormwater drainage on land legally described as Lot 805 and Lot 806 in DP 2475 and known as 200-210 Eleventh Avenue, Austral NSW 2179, subject to the conditions at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (1816625, pdf)

**********

Decision last updated: 18 August 2023