Land and Environment Court New South Wales Medium Neutral Citation: Digital 4 Pty Ltd v Liverpool City Council [2020] NSWLEC 1236 Hearing dates: Conciliation conference on 9 March 2020, 22 May 2020 Date of orders: 02 June 2020 Decision date: 02 June 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Consent is granted to development application DA-6/2019 lodged with Liverpool City Council on 3 January 2019 to subdivide land into three industrial lots on Lot 102 Wonga Road Prestons NSW 2170, identified as Lot 102 DP 1030957, subject to the conditions contained in the Annexure marked 'A' and in accordance with the plan marked 'B' to this agreement. Catchwords: DEVELOPMENT APPLICATION – industrial subdivision – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation (Savings and Transitional) Regulation 2017 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Liverpool Local Environmental Plan 2008 Threatened Species Conservation Act 1995 Texts Cited: Liverpool Development Control Plan 2008 Category: Principal judgment Parties: Digital 4 Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: J Farrell (Applicant) E Espinosa (Solicitor) (Respondent) Solicitors: Minter Ellison (Applicant) Liverpool City Council (Respondent) File Number(s): 2019/363252 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the refusal of its development application DA-6/2019. The development application, as amended, seeks consent for Torrens Title subdivision of the existing lot into three lots. Specifically: proposed Lot 101 25.35ha, proposed Lot 103 0.99ha and Proposed Lot 102 of 1.27ha. The development is proposed at Lot 102 Wonga Road Prestons NSW 2170, identified as Lot 102 DP 1030957. 2. Through the conciliation process the parties have agreed an amended design for the proposed development. The amended plans which form part of the consent are annexed to the judgment. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 9 March 2020 and 22 May 2020. 4. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act. 5. 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 have formed this state of satisfaction for the following reasons: 1. Pursuant to the Liverpool Local Environmental Plan 2008 (LEP 2008), the subject site is zoned IN1 General Industrial. Subdivision is permissible with consent in the zone. I have had regard to the objectives of the zone in determining the application. 2. Part of the subject site is mapped as 'environmentally sensitive land' under cl 7.6 of the LEP 2008. Prior to determining the application, I have considered the factors at cl 7.6(2) as are relevant to the application. 3. The subject development application is a 'pending or interim planning application' under cl 27(1)(f) of the Biodiversity Conservation (Savings and Transitional) Regulation 2017. As such the former planning provisions continue to apply. 4. The parties agree, and I am satisfied, that the proposed development will not have a significant impact on threatened species, populations, or ecological communities, or their habitats, as listed in the Threatened Species Conservation Act 1995 and accordingly a species impact assessment is not required. 5. In accordance with notification requirements under the Liverpool Development Control Plan 2008 applicable at the time of lodgement, the development application did not require notification or advertisement. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Court Act are: 1. The appeal is upheld. 2. Consent is granted to development application DA-6/2019 lodged with Liverpool City Council on 3 January 2019 to subdivide land into three industrial lots on Lot 102 Wonga Road Prestons NSW 2170, identified as Lot 102 DP 1030957, subject to the conditions contained in the Annexure marked 'A' and in accordance with the plan marked 'B' to this agreement. ………………………… D M Dickson Commissioner of the Court Annexure A (212067, pdf) Annexure B (153710, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2020