UPG 245 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1183

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 245 Pty Ltd v Liverpool City Council [2023] NSWLEC 1183

Hearing dates:

Conciliation conference on 6 April 2023

Date of orders:

19 April 2023

Decision date:

19 April 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The Applicant is to pay the Council’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979 in the agreed sum of $3,000.

(2) The appeal is upheld.

(3) Development Application No DA-470/2022, for the subdivision of Lot 22 in Deposited Plan 1286912 and the Torrens Title subdivision of 21 residential lots, construction of twelve (12) dwellings (in 6 semi-detached built forms), and one (1) residue super-lot set aside for future development, site remediation, dam demolition and de-watering, construction of roads, tree removal and associated civil works, over two (2) stages, on land legally described as Lot 22 in DP 1286912 (formally Lot 2 in DP 201643) and known as 140 Sixth Avenue, Austral, NSW, 2179, is determined by the grant of consent subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Torrens Title subdivision of land, construction of dwellings and site works – 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 37

Land and Environment Court Act 1979, ss 34, 39

State Environmental Planning Policy (Biodiversity and Conservation) 2021 s 6.65, Ch 9, Pt 9.2

State Environmental Planning Policy (Precincts-Western Parkland City) 2021, Appendix 4, ss 2.6, 4.1AD, 5.3, 4.1 B, 4.6, 5.3, 6.1

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

Cases Cited:

Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

UPG 245 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
L Sims (Respondent)

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

File Number(s):

2022/299477

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA-470/2022, for the subdivision of Lot 22 in Deposited Plan 1286912 and the Torrens Title subdivision of 21 residential lots, construction of twelve dwellings (in six semi-detached built forms), and one residue super-lot set aside for future development, site remediation, dam demolition and de-watering, construction of roads, tree removal and associated civil works, over two stages (the proposal), on land legally described as Lot 22 in DP 1286912 (formally Lot 2 in DP 201643) and known as 140 Sixth Avenue, Austral, NSW, 2179 (the site), by Liverpool City Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 April 2023. I presided over the conciliation conference. 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.

3. 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.

4. There are preconditions to the exercise of power to grant development consent for the proposal pursuant to s 4.6(2) of Appendix 4 to the State Environmental Planning Policy (Precincts-Western Parkland City) 2021 (the Precinct Plan).

Amended Plans

5. The Council, as the consent authority, consented to the amendment of the application, pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021, in accordance with the following amended plans and documents described below:

Drawing No and Revision		Title	Prepared by	Date
Subdivision Plan
1	Drawing No. DA01 Revision 4	Site Analysis	The Bathla Group	22 February 2023
	Drawing No. DA02 Revision 4	Subdivision Plan
	Drawing No. DA03 Revision 4	Orderly Development Overlay
	Drawing No. DA04 Revision 4	Building Envelope Plan
	Drawing No. DA05 Revision 4	Density Plan
	Drawing No. DA06 Revision 1	Typical Lot 7.2 Siteplan
	Drawing No. DA07 Revision 1	Typical Lot 7.2 Floor Plans
	Drawing No. DA08 Revision 1	Typical Lot 7.2 Elevations, Sections and Shadow Analysis
Landscape Plan
2	Drawing No. LP-01 Revision 1	Typical Landscape Plan	The Bathla Group	27 February 2023
Typical Lot Plans
3	Drawing No. A1312	Lot 10, 11, 16, 17 Typical Lot 7.1 Wide – Elevations Option 1	The Bathla Group	20 February 2023
	Drawing No. A2002	Lot 10, 11, 16, 17 Typical Lot 7.1 Wide – Floors Option 1
	Drawing No. A1312	Lot 12, 13, 18, 19 Typical Lot 7.1 Wide – Elevations Option 2
	Drawing No. A2002	Lot 12, 13, 18, 19 Typical Lot 7.1 Wide – Floors Option 2
	Drawing No. A1312	Lot 14, 15, 20, 21 Typical Lot 7.1 Wide – Elevations Option 1
	Drawing No. A2002	Lot 14, 15, 20, 21 Typical Lot 7.1 Wide – Floors Option 1
Reports / Documents
4	BASIX Certificate No. 1376874M		es2 Design	1 March 2023
5	NatHERS Certificate No. L4T0CGMD80		es2 Design	1 March 2023
6	Colour Schedule – Street Elevation; Materials and Finishes (three sheets)		The Batha Group	24 February 2022

Planning framework

6. The site is zoned R2 Low Density Residential pursuant to the Precinct Plan. The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

• To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

7. Subdivision of land is permitted with consent (s 2.6 of the Precinct Plan).

8. The proposal seeks approval for the construction of dwelling houses on Lots 10-21 which are sized at 239m² (s4.1AD(2) of the Precinct Plan).

9. Pursuant to s 5.3 of the Precinct Plan, before granting consent to the development of land that is within 10 metres of Zone RE1 Public Recreation and any other zone (in this circumstance, R2 Low Density Residential), the consent authority, or the Court exercising the functions of the consent authority, must be satisfied that (a) the development is not inconsistent with the objectives for development in both zones, and (b) the carrying out of the development is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land. The proposal is for future residential development, consistent with the zoning. No works are proposed in the RE1 Zone to allow for compliance with the zone objectives as a public open space.

10. Pursuant to s 6.1 of the Precinct Plan, the consent authority must not grant development consent 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. I accept the Council’s submission that water, sewer, electricity and telecommunication services are available to the site and will be connected to the proposed development.

11. I accept the Council’s submission that the site is suitable for the development (s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021).

12. The repealed Ch 9 (Hawkesbury-Nepean River) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) applies to the proposal (s 6.65 of SEPP Biodiversity and Conservation). I accept the Council’s submission that the matters for consideration under Pt 9.2 have been addressed by the application in the following reports:

(a) BASIX Certificate No. 1376874M prepared by es2 Design dated 1 March 2023;

(b) Statement of Environmental Effects prepared by The Bathla Group dated April 2022;

(c) Preliminary Site Investigation prepared by Geotesta Pty Ltd dated 25 January 2023;

(d) Geotechnical Site Investigation Report prepared by Geotesta Pty Ltd dated 4 April 2022;

(e) Aboriginal Due Diligence Assessment prepared by APEX Archaeology dated 17 November 2021;

(f) Civil engineering plans prepared by Indesco dated 11 February 2022; and

(g) Stormwater Management Report prepared by Indesco dated 11 February 2022.

Contravention of the minimum dwelling density development standard

13. The minimum dwelling density development standard, pursuant to s 4.1B of the Precinct Plan for the site is 20 dwellings per hectare. The objectives of the development standard 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.

14. The net developable area of the site is 1.292400 ha (including superlot 22). The minimum number of lots required is 26, with 22 lots proposed. As Lot 22 is a superlot which is intended to be subdivided in the future, a condition of consent has been imposed (condition 107) which requires that proposed Lot 22 to be developed for residential purposes with no less than 5 dwellings/allotments.

15. The Applicant provided a written request to vary the development standard, pursuant to s 4.6 of the Precinct Plan.

16. Section 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under s 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by s 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at s 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

17. On appeal, the Court has the power under s 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in s 4.6(5) of the Precinct Plan (Initial Action at [29]).

The applicant’s written request to contravene the minimum dwelling density development standard

18. The first opinion of satisfaction required by s 4.6(4)(a)(i) of the Precinct Plan is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by s 4.6(3) (see Initial Action at [15]), as follows:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

19. The applicant bears the onus to demonstrate that the matters in s 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by s 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

20. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. the development standard has been abandoned by the council;

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

21. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

22. The applicant’s written request justifies the contravention of the development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the standard are achieved, notwithstanding the non-compliance with the minimum dwelling density development standard.

23. The grounds relied on by the applicant in the written request under s 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

24. I am satisfied, pursuant to s 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by s 4.6(3). The applicant’s written request defends the non-compliance with the development standard as justified because Lot 22 will be further developed at a future stage of the subdivision in order to ensure the orderly and economic development of the subject site and the adjoining property to the east. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

25. The second opinion of satisfaction in s 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

26. I am satisfied, for the reasons set out in the written request, that the objectives of the development standard and the zone are achieved by the proposal.

Conclusion

27. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 5 April 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

28. The orders of the Court are:

1. The Applicant is to pay the Council’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979 in the agreed sum of $3,000.

2. The appeal is upheld.

3. Development Application No. DA-470/2022, for the subdivision of Lot 22 in Deposited Plan 1286912 and the Torrens Title subdivision of 21 residential lots, construction of twelve (12) dwellings (in 6 semi-detached built forms), and one (1) residue super-lot set aside for future development, site remediation, dam demolition and de-watering, construction of roads, tree removal and associated civil works, over two (2) stages, on land legally described as Lot 22 in DP 1286912 (formally Lot 2 in DP 201643) and known as 140 Sixth Avenue, Austral, NSW, 2179, is determined by the grant of consent subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

**********

Annexure A 

Decision last updated: 19 April 2023