Warwick Farm Central Pty Ltd v Liverpool City Council

[2023] NSWLEC 1001

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Warwick Farm Central Pty Ltd v Liverpool City Council [2023] NSWLEC 1001

Hearing dates:

Conciliation conference on 16 December 2022

Date of orders:

05 January 2023

Decision date:

05 January 2023

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA-1134/2021 for specialised retail premises, food and drink premises and health services facilities on the land described as Lot 1 DP 1162276 and known as 240 Governor Macquarie Drive, Warwick Farm subject to the conditions in Annexure A.

(3) The development consent takes effect from the date of this determination.

Catchwords:

APPEAL – development application – specialised retail premises, food and drink premises and health services facilities – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.11

Environmental Planning and Assessment Regulation 2000, cl 49

Environmental Planning and Assessment Regulation 2021, Sch 6, Pt 1, s 3

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 2.3, 4.3, 4.4, 5.21

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.60, 2.119

Texts Cited:

Liverpool Community Participation Plan 2019

Category:

Principal judgment

Parties:

Warwick Farm Central Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2022/101052

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) by Warwick Farm Central Pty Ltd for a large format retail development comprising specialised retail premises, food and drink premises and health services facilities (Proposed Development) on land described as Lot 1 DP 1162276 and known as 240 Governor Macquarie Drive, Warwick Farm (Site).

2. The DA was made to the Council on 29 September 2021 and was notified in accordance with the Liverpool Community Participation Plan 2019 between 14 and 28 October 2021. No submissions were received by the Council.

3. When the DA had not been determined by the Council within the period after which it was taken to have been refused, on 8 April 2022 the Applicant appealed to the Court pursuant to ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court’s jurisdiction.

4. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

5. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference, which was held on 16 December 2022.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. This decision involves the Court upholding the appeal and granting development consent to the DA subject to conditions. 

7. The signed agreement was lodged with the Court on 15 December 2022 and is supported by a Jurisdictional Statement prepared by the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

8. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the reasons that follow.

9. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act.

10. The Applicant made the DA with the consent of the owner of the Site in accordance with cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a development application made but not finally determined before that date: 2021 Regulation, Sch 6, Pt 1, s 3. The DA was made before, but had not been finally determined by, 1 March 2022 so the EPA Regulation continues to apply to the DA.

11. The Site is within Zone B5 – Business Development under the Liverpool Local Environmental Plan 2008 (LEP). Specialised retail premises and food and drink premises are permitted with development consent on land within that zone. Development for the purposes of a health services facility is also permitted with development consent on land within that zone pursuant to s 2.60(1) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP).

12. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. The objectives of Zone B5 – Business Development are:

•  To enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres.

•  To maintain the economic strength of centres by limiting the retailing of food and clothing.

•  To provide for a larger regionally significant business development centre in a location that is highly accessible to the region.

•  To ensure a reasonable concentration of business activity.

13. In determining the DA, I have had regard to those objectives.

14. The Proposed Development complies with the applicable development standards in the LEP relating to building height (cl 4.3) and floor space ratio (FSR) (cl 4.4). The maximum height of the Proposed Development is approximately 14.93 m which is less than the applicable maximum building height of 15 m. The FSR of the Proposed Development is 0.75:1 which does not exceed the permitted maximum  FSR of 0.75:1.

15. Clause 5.21 of the LEP applies to the Site as it has been identified by the Council as being within the flood planning area. Clause 5.21(2) of the LEP provides that development consent must not be granted to development on land within the flood planning area unless the consent authority is satisfied in relation to the matters set out in cl 5.21(2)(a) to (e), having considered the matters set out in cl 5.21(3)(a) to (d). I have considered the matters set out in cl 5.21(3)(a) to (d) and am satisfied that the Proposed Development:

(a) is compatible with the flood function and behaviour on the Site;

(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

(d) incorporates appropriate measures to manage risk to life in the event of a flood;

(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

16. I have come to this conclusion having regard to the “Flooding Review – proposed Warwick Farm Large Format Retail Development” prepared by S&G Consultants Pty Ltd (SGC) dated 15 September 2021, the Flood Void Design Drawings prepared by SGC dated 21 September 2022 and the letter from SGC entitled, “Warwick Farm Large Format Retail Development Additional Flood Information” dated 20 September 2022.

17. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards 2021) (Hazards SEPP) provides that:

(1) A consent authority must not consent to the carrying out of any development on land unless—

(a)  it has considered whether the land is contaminated, and

(b)  if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)  if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

…

18. I have considered the preliminary site investigation prepared by Aargus Pty Ltd (Aargus) dated 13 September 2021 which accompanied the DA. An addendum to the preliminary site investigation in the form of a letter from Aargus dated 30 August 2022 has also been provided which confirms that the Site will be suitable after remediation for the purposes for which the Proposed Development is to be carried out.

19. Section 2.119 of the Infrastructure SEPP applies to the DA because the Site has a frontage to a classified road, the Hume Highway. Subsection 2.119(2) of the Infrastructure SEPP provides that a consent authority must not grant consent to development on land that has a frontage to a classified road 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.

20. In relation to s 2.119(2)(a) of the Infrastructure SEPP, vehicular access to the Proposed Development is to be provided by a road other than the Hume Highway. In relation to s 2.119(2)(b) of the Infrastructure SEPP, the parties’ agreed position, which I accept, is that the safety, efficiency and ongoing operation of the Hume Hwy will not be adversely affected by the development as a result of:

1. The design of the vehicular access to the Site;

2. The emission of smoke or dust from the Proposed Development; or

3. The nature, volume or frequency of vehicles using the classified road to gain access to the Site.

21. Finally, in relation to s 2.119(2)(c) of the Infrastructure SEPP, I am satisfied that the nature of the Proposed Development is such that it is of a type that is not sensitive to traffic noise or vehicle emissions.

Conclusion

22. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

23. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

24. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA-1134/2021 for specialised retail premises, food and drink premises and health services facilities on the land described as Lot 1 DP 1162276 and known as 240 Governor Macquarie Drive, Warwick Farm subject to the conditions in Annexure A.

3. The development consent takes effect from the date of this determination.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (357549, pdf)

**********

Amendments

03 February 2023 - Attached Annexure A to reflect the orders.

Decision last updated: 03 February 2023