Edmondson Grange Pty Ltd v Liverpool City Council [2020] NSWLEC 1594

Land and Environment Court New South Wales

Medium Neutral Citation: Edmondson Grange Pty Ltd v Liverpool City Council [2020] NSWLEC 1594 Hearing dates: Conciliation conference on 29 October 2020 Date of orders: 01 December 2020 Decision date: 01 December 2020 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [20] Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Liverpool Local Environmental Plan 2008 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Edmondson Grange Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: A Gadiel (Solicitor) (Applicant) R O'Gorman-Hughes (Respondent)

Solicitors: Mills Oakley (Applicant) Liverpool City Council (Respondent) File Number(s): 2019/400791 Publication restriction: No

Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against Liverpool City Council's deemed refusal of Development Application DA-723/2019 ('DA'). 2. The application is for staged development, being a subdivision to create 18 residential allotments, the construction of a new road, and three four-storey residential flat buildings with basement parking, six multi dwelling units, dual occupancy units and associated landscaping and civil works. The site is described as Lot 117 of DP 1245022, Ardennes Avenue, Edmondson Park. 3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 ('LEC Act'), which was held on 29 October 2020, and at which I presided. The parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, indicating it is a decision that the Court could have made in the proper exercise of its function. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. 5. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied (Annexure B to the filed agreement). Regarding jurisdiction, and noting this advice, I ultimately find I am satisfied that all jurisdictional requirements have been met. The particulars are explained below. 1. The site falls within R1 - General Residential Zone pursuant to the provisions of the Liverpool Local Environmental Plan 2008 (LEP), and the proposed development is permissible within the zone. The following additional provisions of the LEP need consideration: 1. In accordance with cl 2.3(2) of the LEP, I have had regard to the zone objectives. 2. The proposal does not meet development standards in regard to building height, floor space ratio (FSR) and minimum lot width, which I consider below under a separate heading. 3. Part 6 of the LEP does not apply as the site is within a special contributions area (as defined by s 7.1 of the EPA Act). 4. In regard to cl 7.11 of the LEP and minimum dwelling densities, I am satisfied with the advice of the parties that the dwelling density likely to be achieved by the subdivision is not less than the dwelling density shown for the land on the LEP's Dwelling Density Map. 1. The following additional jurisdictional matters arise in other environmental planning instruments: 1. Certain matters relating to design quality apply to this proposal. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development ('SEPP 65') brings forward certain requirements, as does the Environmental Planning and Assessment Regulation 2000 ('EPAR'): 1. Clause 50(1A) of the EPAR requires a development application that relates to residential apartment development to be accompanied by a design verification statement ('DVS') meeting stipulated requirements. A DVS was provided with the application. A revised DVS dated 27 October 2020 and signed by registered architect Frank Mosca has also been prepared addressing the design quality principles and demonstrating how the objectives of the Apartment Design Guide have been achieved. 2. Mindful of the requirements of cl 28(2) of SEPP 65, I have taken into consideration the design quality of the proposed development (as amended), when evaluated in accordance with the design quality principles, and the Apartment Design Guide. I note the advice of the parties that while the application was referred to a design review panel, no advice was received that requires my consideration, otherwise under cl 28. 3. Mindful of the advice of the parties, I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the Apartment Design Guide for the relevant design criteria, addressing cl 30(2) of SEPP 65. Conditions of consent require design verification by a registered architect with applications for construction and occupation certificates verifying that the residential flat development as constructed achieves the design quality of the development as shown in the approved plans and specifications (Conditions 39 and 127). Here I acknowledge cll 143A and 154A of the EPAR. 1. Having regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land ('SEPP 55'), as is made clear by reference to submitted documentation in the parties jurisdictional advice, consideration has been given as to whether the subject site is contaminated. The parties advise in regard to cl 7(1)(b) of SEPP 55 that the land will be suitable for the purpose for which the development is proposed to be carried. 2. Clause 102 of State Environmental Planning Policy (Infrastructure) 2007 ('SEPP Infrastructure') applies in relation to road noise considerations. An acoustic report accompanying the application ("Development Application Acoustic Report, Sebastian Giglio, 3 August 2020") has given consideration to the guideline entitled "Development Near Rail Corridors and Busy Roads — Interim Guidelines", which I accept is relevant to cl 102(2). I have also given consideration to this guideline. I accept the advice of the parties that the acoustic report also addresses the requirements of cl 102(3). I am satisfied under cl 102(3) given the requirements of Condition 32 requiring the acoustic report recommendations to be implemented. 1. A condition of consent in accordance with the Ministerial Direction dated 14 January 2011 relating to special infrastructure contributions has been applied (Condition 15).