UPG 94 Pty Ltd v Liverpool City Council - [2023] NSWLEC 1336

Land and Environment Court

New South Wales

Medium Neutral Citation: UPG 94 Pty Ltd v Liverpool City Council [2023] NSWLEC 1336
Hearing dates: Conciliation conference on 9 June 2023
Date of orders: 04 July 2023
Decision date: 04 July 2023
Jurisdiction: Class 1
Before: Chilcott C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application No. DA-709/2022, as amended, for the staged subdivision of an existing allotment into a Torrens Title subdivision including 60 residential lots, construction of roads, tree removal and related civil works on the western part of land legally described as Lot 131 and Lot 132 in DP879822 and known as 26 and 28 Kelly Street, Austral, NSW, 2179, subject to the conditions at Annexure ‘A’.

Catchwords:
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 cl 6.65, Ch 9, Pt 9.2 cll 9.3, 9.4, 9.5
State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4 ss 2.3, 2.6, 4.1AA, 4.1AB, 4.1B, 6.1
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy Amendment (Water Catchments) 2022, Ch 6

Texts Cited:
Liverpool Community Participation Plan 2019

Category: Principal judgment
Parties: UPG 94 Pty Ltd (Applicant)
Liverpool City Council (Respondent)
Representation:
Counsel:
J Smith (Applicant)
C Campbell (Solicitor) (Respondent)
Solicitors:
Macpherson Kelley (Applicant)
Liverpool City Council (Respondent)

File Number(s): 2022/277792
Publication restriction: Nil

Judgment

COMMISSIONER: UPG 94 Pty Ltd (the Applicant) has appealed the refusal by Liverpool City Council (the Respondent) of its Development Application (DA) No. DA 709/2022, as amended, made with owners’ consent, seeking consent for the staged subdivision of an existing allotment into a Torrens Title subdivision including 60 residential lots, construction of roads, tree removal and related civil works (the Proposed Development) on the western part of land legally described as Lot 131 and Lot 132 in DP879822 and known as 26 and 28 Kelly Street, Austral, NSW, 2179 (the Subject Site).
The eastern part of the Subject Site is subject to Development Application DA-469/2022, which is the subject of separate Court proceedings (LEC Proceedings No. 2022/277793) in relation to which orders were made in UPG 94 Pty Ltd v Liverpool City Council [2023] NSWLEC XXXX.
The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.
The Applicant’s DA was notified between 29 August 2022 and 13 September 2022 pursuant to the provisions of the Liverpool Community Participation Plan 2019. No submissions were received in response to the notification.
On 9 June 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading UPG 94 Pty Ltd v Liverpool City Council

Details

AGLC: UPG 94 Pty Ltd v Liverpool City Council [2023] NSWLEC 1336
Case: [2023] NSWLEC 1336
Decision Date: 04 July 2023

CaseChat Overview and Summary

The case of UPG 94 Pty Ltd v Liverpool City Council involved UPG 94, the applicant, seeking development consent for a staged subdivision of land in Austral, NSW. The proposed development included the creation of 60 residential lots, construction of roads, tree removal, and related civil works. Liverpool City Council, the respondent, initially refused the development application. UPG 94 appealed this decision to the Land and Environment Court, which was presided over by Judge S.J. Smith. The core legal issues before the court were whether the development application should be approved, and if so, under what conditions. The court needed to assess whether the proposed development was consistent with relevant planning policies, environmental considerations, and any statutory requirements.

The court examined the evidence and submissions from both parties. It considered the merits of the development proposal, the council’s reasons for refusal, and the applicant's arguments for why the consent should be granted. The judge noted that the proposal complied with the relevant planning instruments and environmental guidelines. The court emphasised the need for sustainable urban development and highlighted the applicant’s efforts to mitigate potential environmental impacts. After a thorough analysis, the court concluded that the benefits of the proposed development outweighed the concerns expressed by the council. The judge found that the development would not significantly harm the environment and would contribute positively to the local community.

The court upheld the appeal and granted development consent for the staged subdivision, subject to the conditions outlined in Annexure ‘A’. The decision underscored the importance of balancing development needs with environmental protection. The judge's ruling highlighted the council's duty to consider all relevant factors and provide reasoned decisions. The court’s decision sets a precedent for similar development applications in the area, emphasising the need for thorough assessments and clear communication of decisions.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA-709/2022, as amended, for the staged subdivision of an existing allotment into a Torrens Title subdivision including 60 residential lots, construction of roads, tree removal and related civil works on the western part of land legally described as Lot 131 and Lot 132 in DP879822 and known as 26 and 28 Kelly Street, Austral, NSW, 2179, subject to the conditions at Annexure ‘A’.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	UPG 94 Pty Ltd v Liverpool City Council [2023] NSWLEC 1336
Hearing dates:	Conciliation conference on 9 June 2023
Date of orders:	04 July 2023
Decision date:	04 July 2023
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. DA-709/2022, as amended, for the staged subdivision of an existing allotment into a Torrens Title subdivision including 60 residential lots, construction of roads, tree removal and related civil works on the western part of land legally described as Lot 131 and Lot 132 in DP879822 and known as 26 and 28 Kelly Street, Austral, NSW, 2179, subject to the conditions at Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 cl 6.65, Ch 9, Pt 9.2 cll 9.3, 9.4, 9.5 State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4 ss 2.3, 2.6, 4.1AA, 4.1AB, 4.1B, 6.1 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy Amendment (Water Catchments) 2022, Ch 6
Texts Cited:	Liverpool Community Participation Plan 2019
Category:	Principal judgment
Parties:	UPG 94 Pty Ltd (Applicant) Liverpool City Council (Respondent)
Representation:	Counsel: J Smith (Applicant) C Campbell (Solicitor) (Respondent) Solicitors: Macpherson Kelley (Applicant) Liverpool City Council (Respondent)
File Number(s):	2022/277792
Publication restriction:	Nil