Upg 301 Pty Ltd v Liverpool City Council

[2023] NSWLEC 1791

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

UPG 301 Pty Ltd v Liverpool City Council [2023] NSWLEC 1791

Hearing dates:

Conciliation conference on 22 August 2023

Date of orders:

22 December 2023

Decision date:

22 December 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant is to pay the Respondents costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(3) Development consent is granted to Development Application No. DA-89/2023, as amended, for the subdivision of land creating 37 Torrens Title lots including construction and dedication of public roads, tree removal and stormwater drainage works on land legally described as Lot 104 in DP 1049203 and Lot 106 in DP 1050119, also known as 139-149 Cowpasture Road, Carnes Hill NSW 2171, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision – conciliation conference – amended plans and material – agreement reached – orders made.

Legislation Cited:

Biodiversity Conversation Act 2016 s 7.2, 7.3, 7.4

Environmental Planning and Assessment Act 1979 s 4.15, 8.7

Environmental Planning and Assessment Regulation 2021 s 38

Land and Environment Court Act 1979 s 34

Pursuant to State Environmental Planning Policy (Transport and Infrastructure) 2021 s 2.119, 2.120

Roads Act 1993 s 138

Rural Fire Services Act 1997  s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021 s 2.6, 2.8

State Environmental Planning Policy (Resilience and Hazards) s 4.6

Water Management Act 2000 s 91

Texts Cited:

Liverpool Development Control Plan 2008

The Liverpool Local Environmental Plan 2008 cll 4.1, 5.21, 7.31

Category:

Principal judgment

Parties:

UPG 301 Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
D Loether, solicitor (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Bartier Perry (Respondent)

File Number(s):

2023/157908

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of Development Application DA-89/2023 for the Torrens Title subdivision of land into 37 residential lots, construction and dedication of public roads, tree removal and stormwater drainage works at 139-149 Cowpasture Road, Carnes Hill, NSW, 2171.

2. The Court arranged a conciliation conference under s34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 August 2023. The conciliation conference was adjourned to allow the applicant to prepare an amended set of documents to reflect the agreement reached between the parties at the conciliation conference. Those amended plans and materials, along with an agreement, were filed with the Court on 28 November 2023.

3. 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. Lot 104 in DP1049203 and Lot 106 in DP1050119 are owned by private parties. The development application was lodged by UPG 301 Pty Ltd (Applicant) on 27 February 2023 with a letter of authority by owners of each lot.

2. The development application proposes engineering works on adjoining land to the east being Lot 107 in DP 1050119 and Lot 105 in DP 1049203. This land is owned by Liverpool City Council (the Respondent). The Respondent has provided written consent to the scope of works proposed to be carried out.

3. The development application was notified in accordance with the Liverpool City Council Community Engagement Strategy and Community Participation Plan 2022 from 15 June 2023 to 12 July 2023. No submissions were received.

4. The development application was referred to Sydney Water Corporation (SWC) as a Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water. SWC issued its general terms of approval on 17 March 2023. Condition No. 2 of the annexed conditions of consent requires compliance with those general terms of approval issued by SWC.

5. The development application was also referred to Endeavour Energy who provided Standard Conditions for Development on 10 March 2023. Condition No. 3 of the annexed conditions of consent requires compliance with those conditions of development provided by Endeavour Energy.

6. The development application is integrated development as the rear portion of the site is identified on the Bushfire Prone Land map 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 12 April 2023. The annexed conditions of consent require compliance with the Bushfire Safety Authority.

7. The development application was referred to Department of Planning and Environment – Water (DPE Water) as integrated development pursuant to section 4.47 of the EPA Act as there is an existing natural watercourse running through the Site and works are proposed within waterfront land. DPE Water issued its general terms of approval (GTA) for the development application on 26 July 2023. Those GTA require approval under section 91 of the Water Management Act 2000. The annexed conditions of consent require compliance with the GTA.

8. The development application was referred to Transport for NSW (TfNSW) as integrated development under section 4.47 of the EPA Act as the Development has frontage to and involves works within the road reserve of Cowpasture Road, being a classified road. TfNSW gave its concurrence under s 138 of the Roads Act 1993 on 6 July 2023. Condition No.6 of the annexed conditions requires compliance with concurrence by TfNSW.

9. The Site contains an area of 0.19 hectares of Threatened Ecological Community of Cumberland Plain Woodland (CPW). The amended development application is accompanied by a Biodiversity Impact Assessment report prepared by Keystone Ecological Pty Ltd and dated 14 September 2023 (Biodiversity Report). Pursuant to s 7.3 of the Biodiversity Conversation Act 2016 (BC Act), the Biodiversity Report assessed the potential impact of the development on the relevant matters of conservation significance by applying the test of significance. The Biodiversity Report concludes that the Biodiversity Offsets Scheme is not triggered because:

1. the front section of the Site is within the Biodiversity Certified corridor along Cowpasture Road as detailed on Page 7 of the Biodiversity Report;

2. no native vegetation is to be cleared within land mapped as having Biodiversity Values as no such area is mapped on the Site; and

3. the area of native vegetation to be cleared is less than the biodiversity offsets scheme threshold imposed under s 7.4 of the BC Act.

10. The parties agree and I accept that I can be satisfied that the development is not likely to significantly affect threatened species or ecological communities or their habitats pursuant to s 7.2 of the BC Act.

11. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) contains provisions relating to the clearing of native vegetation in New South Wales. The amended development application proposes removal of all trees within the Site resulting in a loss of a total of 0.20 hectares of CPW. However, the front section of the Site is within the Biodiversity Certified corridor along Cowpasture Road, and only the rear portion of the Site is required to be considered for biodiversity impact assessment (see s 2.6(3) of SEPP BC).

12. The Biodiversity Report accompanying the development application concludes that the area of native vegetation proposed to be cleared within the non-biodiversity certified portion of the Site is less than the biodiversity offsets scheme threshold imposed by s 7.4 of the BC Act.

13. Further, the Biodiversity Report concludes that the Development is unlikely to have a significant adverse impact on the Threatened Ecological Community of Cumberland Plain Woodland and the foraging habitat for Pteropus poliocephalus Grey-headed Flying-fox found on the Site.

14. The parties agree and I accept that I can be satisfied that the proposed clearing is permitted pursuant to s 2.8 of SEPP BC as:

1. the proposed clearing is not ancillary to the carrying out of other development,

2. does not require a permit or approval pursuant to s 7.2 of the BC Act, and

3. is not clearing vegetation that is a heritage item or Aboriginal object or located in a heritage conservation area of Aboriginal place of heritage significance.

15. The parties agree and I accept that I can be satisfied that the development will protect the biodiversity value of trees and other vegetation, preserve the amenity of the area through the preservation of trees and other vegetation, through the retention of trees and vegetation contained within the Biodiversity Certified corridor in the front section of the Site.

16. Pursuant to State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) Cowpasture Road is a SP2 Classified Road. Section 2.119 of the SEPP TI requires that the consent authority must not grant consent to the Development unless it is satisfied that:

(a)  where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and,

(b)  the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i)  the design of the vehicular access to the land, or

(ii)  the emission of smoke or dust from the development, or

(iii)  the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c)  the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

17. The development application proposes to construct and dedicate two public roads, being an extension to Sarah Hollands Drive and a second road to be accessed from Sarah Hollands Drive. A detailed traffic assessment prepared by Varga Traffic Planning Pty Ltd accompanies the development application. That assessment concludes that the Development is compliant with s 2.119 of SEPP TI. The parties agree and I accept that I can be satisfied that the development complies with s 2.119 of SEPP TI as:

1. the development will provide practicable and safe vehicular access to the land by roads other than Cowpasture Road, and

2. the safety, efficiency and ongoing operation of Cowpasture Road will not be adversely affected by the Development, and

3. the Development includes appropriate measures to ameliorate potential traffic noise generated by Cowpasture Road within the Site.

18. Pursuant to s 2.120 of the SEPP TI the consent authority must not grant consent to the Development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded:

(a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am,

(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

19. The development application is accompanied by an acoustic assessment prepared by Acoustic Logic dated 21 August 2023. That report provides recommendations to ensure compliance with s 2.120 of SEPP TI. Compliance with those recommendations forms part of the consent conditions in Annexure A. The parties agree and I accept that s2.120 of SEPP TI is satisfied.

20. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) (SEPP RH) the 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 development application is accompanied by a detailed site investigation report and a remediation action plan. Those reports conclude that if the site is remediated in accordance with the remediation action plan it will be suitable for the proposed development. The parties agree and I accept that s 4.6 of SEPP RH is satisfied.

21. The Liverpool Local Environmental Plan 2008 (LEP 2008) applies to the site. Pursuant to LEP 2008 the site is zoned R3 Medium Density Development. Subdivision is permitted with consent in the zone. In determining the development application, I have had given consideration to the zone objectives which are:

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

• To provide a variety of housing types within a medium density residential environment.

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

• To provide for a concentration of housing with access to services and facilities.

• To provide for a suitable visual transition between high density residential areas and lower density areas.

• To ensure that a high level of residential amenity is achieved and maintained.

22. Demolition is permissible pursuant to cl 2.6 of LEP 2008.

23. Clause 4.1 (Minimum Subdivision Lot Size) applies to the site. Subclauses 4.1(3) and 4.1(4A) together prescribe a minimum subdivision lot size of 300 m². The amended development application complies with the minimum subdivision lot size control under cl 4.1 of LEP 2008.

24. Pursuant to cl 5.21 (Flood Planning) the site is within an area mapped as flood prone land. The development application is accompanied by a Flood Impact Assessment Report prepared by Rhelm Pty Ltd dated August 2022. That report concludes that the development will not significantly increase flood hazard and that the development will satisfy the requirements of sub cl (2). In determining the development application, I have considered the matters at cl 5.21 (3) and on the basis of the flood report and annexed conditions find I can be satisfied of the matters at sub cl (2).

25. Pursuant to cl 7.31 (Earthworks) the consent authority must consider the following matters before granting development consent:

1. the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

2. the effect of the proposed development on the likely future use or redevelopment of the land,

3. the quality of the fill or the soil to be excavated, or both,

4. the effect of the proposed development on the existing and likely amenity of adjoining properties,

5. the source of any fill material and the destination of any excavated material,

6. the likelihood of disturbing relics,

7. the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

26. With the assistance of the civil design plans, the engineering and stormwater reports, the indigenous heritage assessment, the detailed site investigation report and a remediation action plan I have considered these matters and conclude none warrant the refusal of the development application.

27. The Liverpool Development Control Plan 2008 (DCP 2008) applies to the site. The statement of environmental impacts details the compliance of the proposed development with DCP 2008. In determining the development application, I have considered the provisions of the development control plans: s 4.15(1) of the EPA Act.

5. 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)).

6. 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(1) of the EPA Act.

7. The Court notes that the Respondent has agreed, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA-89/2023 to rely upon the following amended plans and documents, as filed with the Court:

Drawing No. & Revision		Title	Prepared by	Date
Subdivision Plan
1	Drawing No. DA02 Revision 7	Subdivision Plan	The Bathla Group	8 September 2023
Engineering Plans
2	Drawing No. 210152-DA-C01.01 Rev 3	Drawing Schedule	Enspire Solutions	8 September 2023
	Drawing No. 210152-DA-C01.21 Rev 3	Specification Notes		8 September 2023
	Drawing No. 210152-DA-C01.41 Rev 3	General Arrangement Plan		8 September 2023
	Drawing No. 210152- DA-C02.01 Rev 3	Establishment and Demolition Plan		8 September 2023
	Drawing No. 210152- DA-C03.01 Rev 3	Erosion and Sedimentation Control Plan		8 September 2023
	Drawing No. 210152- DA-C03.21 Rev 3	Erosion and Sedimentation Control Details		8 September 2023
	Drawing No. 210152- DA-C04.01 Rev 3	Cut and Fill Plan		8 September 2023
	Drawing No. 210152- DA-C04.21 Rev 3	Cut and Fill Sections – Sheet 01		8 September 2023
	Drawing No. 210152- DA-C04.22 Rev 3	Cut and Fill Sections – Sheet 02		8 September 2023
	Drawing No. 210152- DA-C05.01 Rev 3	Siteworks and Stormwater Plan – Sheet 01		8 September 2023
	Drawing No. 210152- DA-C05.02 Rev 3	Siteworks and Stormwater Plan – Sheet 02		8 September 2023
	Drawing No. 210152- DA-C05.51 Rev 2	Temporary Diversion Swale Decommissioning Plan		8 September 2023
	Drawing No. 210152- DA-C06.01 Rev 3	Road Typical Cross Section		8 September 2023
	Drawing No. 210152- DA-C07.01 Rev 3	Road Longitudinal Section		8 September 2023
	Drawing No. 210152- DA-C11.01 Rev 3	Pavement Signage and Linemarking Plan		8 September 2023
	Drawing No. 210152- DA-C14.01 Rev 3	Siteworks Details		8 September 2023
	Drawing No. 210152- DA-C17.01 Rev 3	Stormwater Culvert Longitudinal Section		8 September 2023
	Drawing No. 210152- DA-C21.01 Rev 3	Post-Development and Ultimate Catchment Plan		8 September 2023
	Drawing No. 210152- DA-C22.01 Rev 3	Turn Path Plan		8 September 2023
	Drawing No. 210152- DA-C23.01 Rev 3	Safety In Design		8 September 2023
Reports / documents
3	Civil Engineering & Stormwater Management Report (Project Number 210179, Revision 3)		Enspire Solutions	8 September 2023
4	Biodiversity Impact Assessment (Ref: LCC 23-1223)		Keystone Ecological	14 September 2023
5	Salinity Assessment & Management Plan (Version 1)		NG Child & Associates	9 August 2023
6	DA Acoustic Assessment (Ref: 20220151.1/2108A/R2/GW, Revision 2)		Acoustic Logic	21 August 2023
7	Detailed Site Investigation (Report No: 2194-DSI-01-100823.v2f, Revision v2f)		Sydney Environmental Group	23 August 2023
8	Remediation Action Plan (Report No: 2194-RAP-01-100823.v1f, Revision v1f)		Sydney Environmental Group	10 August 2023
9	Feasibility Study for Power Supply		Enlight Engineering	15 August 2023
10	Social Impact Assessment		The Bathla Group	–
11	Waste Management Plan (Amended)		The Bathla Group	August 2023

8. The Court orders:

1. The Appeal is upheld.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

1. Development consent is granted to Development Application No. DA-89/2023, as amended, for the subdivision of land creating 37 Torrens Title residential lots including construction and dedication of public roads, tree removal and stormwater drainage works on land legally described as Lot 104 in DP1049203 and Lot 106 in DP1050119, also known as 139-149 Cowpasture Road, Carnes Hill NSW 2171, subject to the conditions at Annexure A.

D Dickson

Commissioner of the Court

Annexure A

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Amendments

04 March 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”) a typographical error at paragraph [4](23) is amended and correction is made to the date of determination in annexure A.

Decision last updated: 04 March 2024