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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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 an in-principle agreement regarding the granting of consent to the Applicant’s amended DA, subject to conditions.

6. No site view of the Subject Site was undertaken during the conciliation conference and no objectors had sought to make submissions in relation to the Proposed Development.

7. Under the Parties’ agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

8. 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.

9. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (WPC SEPP) which is applicable to development on the Subject Site, and in particular, Appendix 4 of the WPC SEPP (Liverpool Growth Centres Precinct Plan) (the Precinct Plan) which is applicable to the Site:

1. the Subject Site has the following zonings under the Precinct Plan:

1. R2 Low Density Residential; and

2. R3 Medium Density Residential.

2. The Applicant’s proposed subdivision works are limited to the R3 Zone portion of the Subject Site and subdivision is permitted with consent under the provisions of s 2.6 of the Precinct Plan.

3. the relevant applicable clauses in the Precinct Plan in relation to the Proposed Development, and the Applicant’s response to those provisions are as follows:

Section	Requirement	Response of Proposed Development
Zone Objectives
Section 2.3	The objectives of the zone are not pre-conditions to the grant of consent, but consideration of them is required under s 2.3 of the Precinct Plan. The objectives of the R2 Zone are as follows: • 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. The objectives of the R3 Zone are as follows: • 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 support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a medium density residential environment.	The Applicant’s proposed subdivision works are to provide for future medium density residential development. The Parties agree, and I am satisfied, that the Proposed Development is compatible with the objectives of the R2 and R3 zoning of the Subject Site.
Lot Sizes
Section 4.1AA	Development consent may be granted to the subdivision of land to which this section applies resulting in the creation of a lot that has an area of less than 300m2 (but not less than 225m2) if the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot.	All proposed lots have a minimum lot size of 225m2. Where a proposed lot is less than 300m2, a building envelope plan has been prepared to demonstrate that there is sufficient building envelope to enable the erection of a dwelling house on the lot. I am satisfied that the Proposed Development satisfies the provisions of s 4.1AA.
Section 4.1AB	Otherwise, the minimum permitted lot size on the Subject Site for a dwelling house is 300m2, where the dwelling density for the Site is 25 dwellings per hectare.	The remainder of the lots have a lot size greater than 300m2 consistent with the provisions of s 4.1AB.
Residential Density
Section 4.1B	The minimum dwelling density for the Subject Site is 25 dwellings per hectare. The minimum dwelling density for the R2 Zone of the Site is 15 dwellings per hectare.	I am satisfied that the Proposed Development, as amended is compliant with the minimum dwelling density and results in a density in the R3 Zone of 26.61 dwellings per hectare and in the R2 Zone the subdivision results in 24.56 dwellings per hectare.
Public utility infrastructure
Section 6.1	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.	The Applicant has provided letters from Qalchek and Enlight Engineering which confirm that the public utility infrastructure will be available when required for the development, including assurances that water, sewer, electricity and telecommunication services will be made available to the Subject Site and will be connected to the Proposed Development.

2. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this:

1. a Preliminary Site Investigation Report and a Detailed Site Investigation Report have been prepared by Geotesta for the Subject Site, and based on the findings of these investigations, the Subject Site is considered suitable for the Proposed Development, with no requirement for further investigation or preparation of a remediation action plan;

2. a Dam Dewatering Report has also been prepared by Geotesta to ensure the dewatering of the dam is undertaken in a safe manner and removal of any threat posed by the dam is in accordance with the relevant legislations and guidelines; and

3. I am satisfied that the Subject Site is suitable for its intended use under the Proposed Development; and

4. I am further satisfied that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal;

3. in relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP):

1. State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments Amendment SEPP) commenced on 21 November 2022 and served to repeal the previous Chs 6 to 12 of the Biodiversity and Conservation SEPP and insert a new Ch 6 (Water Catchments Amendment SEPP);

2. the provisions of cl 6.65 of the Biodiversity and Conservation SEPP provides that the former Chapters continue to apply to a development application which was lodged, but not finally determined, before the commencement of the Water Catchments Amendment SEPP.

3. the Applicant’s DA was lodged on 22 February 2022, prior to the commencement of the Water Catchments Amendment SEPP, and the appeal that is the subject of this judgment was commenced on the deemed refusal of the DA, as such, the DA has not yet been finally determined and the former Chapters of the Biodiversity and Conservation SEPP apply to the determination of the Applicant’s DA;

4. the provisions of the former Ch 9 (Hawkesbury-Nepean River) of the Biodiversity and Conservation SEPP applies to the Proposed Development; and

5. Chapter 9, Part 9.2 clause 9.3 of the Biodiversity and Conservation SEPP (being the previous Clause 4 of the Hawkesbury-Nepean River Plan) requires a consent authority to consider the matters referred to in clause 9.4 (being the previous clause 5 of the Hawkesbury-Nepean River Plan) and the specific planning policies and related recommended strategies set out in clause 9.5 (being the previous clause 5 of the Hawkesbury-Nepean River Plan) which are applicable to the Proposed Development;

6. the matters for consideration under Pt 9.2 have been addressed in the following reports which accompany the Applicant’s DA No. DA-709/2022:

1. Statement of Environmental Effects prepared by The Bathla Group dated April 2021;

2. Supplementary Statement of Environmental Effects prepared by The Bathla Group dated January 2023;

3. Aboriginal Due Diligence Assessment prepared by Apex Archaeology dated 6 August 2021;

4. Bushfire Protections Assessment prepared by Travers Bushfire & Ecology dated 21 March 2022;

5. Geotechnical Site Investigation Report prepared by Geotesta dated 8 February 2022;

6. Detailed Site Investigation Report prepared by Geotesta dated 8 February 2022;

7. Dam Dewatering Report prepared by Geotesta dated 8 February 2022;

8. Engineering drawings prepared by Enspire Solutions Pty Ltd dated 11 April 2023; and

9. Civil Engineering/Stormwater Management Report prepared by Enspire Solutions Pty Ltd dated 11 April 2023.

10. Having considered the advice of the Parties, provided above at [9], I agree that:

1. regard has been had to the objectives of the Subject Site’s zoning in determining the Applicant’s DA;

2. the Applicant’s DA can be approved having regard to the matters in subs 4.15(1)(b)–(e) of the EP&A Act, noting that no submissions received in response to notification;

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been satisfied; and

4. approval of the Proposed Development is in the public interest.

11. Further, 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.

12. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

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

Orders

14. 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’.

M Chilcott

Commissioner of the Court

Annexure A 

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Decision last updated: 04 July 2023