UPG 254 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1484

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 254 Pty Ltd v Liverpool City Council [2023] NSWLEC 1484

Hearing dates:

Conciliation conference 21 August 2023

Date of orders:

25 August 2023

Decision date:

25 August 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA-902/2022 for the subdivision of land into 43 residential lots and 3 residue lots over two-stages with tree removal, road construction and associated site works on land legally described as Lot 367 and Lot 368 in DP2475 and known as 415-425 Fifteenth Avenue, Austral NSW 2179, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – consent sought for land subdivision, tree removal, construction and dedication of public roads – amended plans – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, s 37

Land and Environment Court Act 1979, s 34

Rural Fire Services Act 1997, s 100B

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021

Category:

Principal judgment

Parties:

UPG 254 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
C Campbell (Solicitor) (Respondent)

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

File Number(s):

2022/325495

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant, UPG 254 Pty Ltd, against the deemed refusal of their development application DA-902/2022. The development application seeks consent for the subdivision of Lots 367 and 368 in DP 2475 into 46 lots over two stages along with tree removal, construction and dedication of public roads and associated site works. The development is proposed at 415-425 Fifteenth Avenue, Austral.

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 31 March 2023.That conciliation conference was terminated, and the matter listed for hearing. In July 2023 the Applicant was granted leave to amend their development application. The principal amendments were as follows:

1. Amendments to the proposed road and stormwater design

2. Provision of additional information in relation to engineering, proposed earthworks, flood management, acoustics, contamination and remediation.

3. Amendment to the subdivision design.

3. Following the amendment to the development application the parties reached an in principle agreement and sought orders for a further conciliation conference. That conciliation conference was listed on 21 August 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions.

4. 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 development application was made with the written consent of the land owners of the site.

2. The development application was notified in accordance with the Liverpool City Council Community Engagement Strategy and Community Participation Plan 2022from 19 October 2022 to 3 November 2022. No submissions were received.

3. The development application is integrated development. The site is identified on the Bushfire Prone Land as Vegetation Buffer. The development application was accompanied by a bushfire protection assessment report and was referred to the NSW Rural Fire Service (NSWRFS). The NSWRFS issued a Bushfire Safety Authority pursuant to s 100B of the Rural Fire Services Act 1997 on 17 January 2023.

4. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) 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 the development application is accompanied by a Detailed Site Investigation which concludes that the site can be made suitable for the proposed residential land use, subject to the implementation of the proposed Remedial Action Plan (RAP). A RAP has been prepared for the development application. The annexed conditions require compliance with the RAP and certification of validation prior to the issue of a subdivision certificate. Clause 4.6 of SEPP RH is satisfied.

5. The provisions of appendix 4 of State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (WPC SEPP) apply as the site is located within the Liverpool Growth Centres Precinct Plan (Precinct Plan):

1. The development is permissible with consent under s 2.6 of the Precinct Plan.

2. The site is zoned part R2 Low Density Residential, R3 Medium Density Residential, and part SP2 Infrastructure (Local Road).

3. In determining the development application, I have given consideration to the objectives of the relevant zones.

4. The site is mapped on the Residential Density Map as having a dwelling density of 15 dwellings per hectare on the R2 Low Density Residential and a dwelling density of 25 dwellings per hectare on the R3 Medium Density zoned portion of the site. The parties agree and I accept that the development achieves the density targets and complies with s 4.1AB(3) of the Precinct Plan.

5. The site is not mapped on the Lot Size Map. In accordance with s 4.1AB(3)(b) of the Precinct Plan, the minimum lot size for a dwelling house is 300m². Where lots proposed are less than 300m², the development application relies upon s 4.1AA of the Precinct Plan and the application is accompanied by building envelope plans which demonstrate that those lots can enable the erection of a dwelling house. In accordance with s 4.1AB(9) of the Precinct Plan the minimum lot size for a residential flat building is 2,000m². Proposed Lot 36 is 6464m² and exceeds the minimum lot size required.

6. Section 6.1 of the Precinct Plan applies to the Development. Water, electricity and sewer services are available to the site. The development application was referred to Sydney Water which have confirmed that there is existing capacity in the water networks to service the proposed development and that wastewater can be available to the site by 2023/2024.

6. Pursuant to State Environmental Planning Policy (Transport and Infrastructure) 2021 (ISEPP) Fifteenth Avenue is currently a local road, however Transport for NSW (TNSW) advises the site is within an area under investigation for the proposed Fifteenth Avenue Upgrade. Part of the site is zoned SP2 (Classified Road). The development application was sent to TNSW for comment, whose feedback has been addressed in the amended development application.

5. 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.

6. 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.

7. The Court notes that:

1. An order was made by the Court on 20 July 2023 granting the Applicant leave to amend Development Application No. DA-902/2022 under section 37 of the Environmental Planning and Assessment Regulation 2021.

2. A further order was made by the Court on 20 July 2023 that the Applicant pay the Respondent’s costs as agreed or as assessed under clause 8.15(3) of the Environmental Planning Assessment Act 1979.

8. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. DA-902/2022 for the subdivision of land into 43 residential lots and 3 residue lots over two-stages with tree removal, road construction and associated site works on land legally described as Lot 367 and Lot 368 in DP2475 and known as 415-425 Fifteenth Avenue, Austral NSW 2179, subject to the conditions at Annexure A.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 25 August 2023