Land and Environment Court New South Wales Medium Neutral Citation: Scottsdale Circuit Pty Ltd v Liverpool City Council [2021] NSWLEC 1411 Hearing dates: Conciliation conference on 1 June 2021 Date of orders: 20 July 2021 Decision date: 20 July 2021 Jurisdiction: Class 1 Before: Gray C Decision: See orders at [7] Catchwords: APPEAL – development application – multi dwelling housing – in fill affordable housing – conciliation conference – agreement reached Legislation Cited: Environmental Planning and Assessment Act 1979 s 8.7, 4.15, 4.16 Environmental Planning and Assessment Regulation 2000 Sch 1 Land and Environment Court Act 1979 s 34 Liverpool Local Environmental Plan 2008 State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 13, 15, 16A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 cll 101, 102 State Environmental Planning Policy No 55— Remediation of Land cl 7 Texts Cited: Seniors Living Policy: Urban Design Guidelines Category: Principal judgment Parties: Scottsdale Circuit Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) C Morton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Sparke Helmore (Respondent) File Number(s): 2020/362756 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by the applicant against the respondent's refusal of Development Application DA-425/2020 which seeks consent for the demolition of existing buildings and construction of a multi-dwelling housing development containing 24 two storey dwellings, landscaping and site works at 22 Holland Crescent and 545 Hume Highway, Casula. Six of the dwellings are proposed to be used for the purposes of affordable housing, pursuant to the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached following a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 June 2021. I presided over the conciliation conference. 3. Following the conciliation conference, 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 was acceptable to the parties. The final agreement was filed on 13 July 2021 and is supported by a jurisdictional note that sets out the nature of the appeal and the jurisdictional matters that the Court is required to consider. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * Multi dwelling housing is a permissible use in the R3 Medium Density Residential zone in which the zone is located, pursuant to the Liverpool Local Environmental Plan 2008 (LLEP 2008). * The proposed development is infill development in accordance with Div 1 of Pt 2 of the SEPP ARH, and benefits from an additional allowance for floor space ratio (FSR) pursuant to cl 13(2) of the SEPP ARH, as 22.56% of the proposed gross floor area (GFA) is dedicated to affordable housing. The proposal complies with the allowable FSR, and has a FSR of 0.538:1. * The proposed development does not breach any other development standard that applies pursuant to the LLEP 2008. * The Court has considered whether the design of the development is compatible with the character of the local area, consistent with cl 16A of the SEPP ARH. * The Court has taken into consideration the Seniors Living Policy: Urban Design Guidelines, as required by cl 15 of the SEPP ARH, on the basis of the report by Willana Urban filed on 13 July 2021. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. Based on the Preliminary Site Investigation and a Detailed Site Investigation prepared by EIAustralia, the site does not present a risk to human health and the environment and that the site is suitable for the proposal subject to recommendations. The conditions of consent at Annexure A include a requirement for the applicant to carry out work in accordance with those recommendations (Condition 6). * The proposed development is on land that has frontage to a classified road. Consistent with cl 101 of the State Environmental Planning Policy (Infrastructure) 2007, I am satisfied that vehicular access to the land is provided by a road other than the classified road, that the safety, efficiency and ongoing operation of the classified road will not be adversely affected, and that the development is appropriately located and designed to ameliorate potential traffic noise or vehicle emissions. * Similarly, the proposed development is on land adjacent to a road with an annual average daily traffic volume of more than 20,000 vehicles. Clause 102 of the State Environmental Planning Policy (Infrastructure) 2007 therefore applies. An Acoustic Report was prepared by Blackett Acoustics, which demonstrates that the appropriate assessments have been undertaken to ensure that the proposed development will comply with cl 102(3) subject to recommendations. I am satisfied that the incorporation of those recommendations in the agreed conditions of consent (Condition 100) will mean that appropriate measures will be taken to ensure that the levels prescribed by cl 102(3) are not exceeded. * An Amended BASIX Certificate has been provided which reflects the amended development application, in satisfaction of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and pursuant to Schedule 1 of the Environmental Planning and Assessment Regulation 2000. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, 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 Court orders that: 1. Leave is granted to the Applicant to rely upon the following amended documentation: Plan Name Drawing number Revision Date Prepared by Architectural plans Cover Page DA100 I 30/06/2021 Morfosis Architects Pty Ltd Location Map & Site Analysis DA102 I 30/06/2021 Morfosis Architects Pty Ltd Site/Roof Plan DA103 I 30/06/2021 Morfosis Architects Pty Ltd Overall Site Ground Floor Plan without internal Layout DA201 I 30/06/2021 Morfosis Architects Pty Ltd Overall Site First Floor Plan without internal layout DA202 I 30/06/2021 Morfosis Architects Pty Ltd Overall Site Ground Floor Plan without internal layout DA203 I 30/06/2021 Morfosis Architects Pty Ltd Overall Site First Floor Plan with internal layout DA204 I 30/06/2021 Morfosis Architects Pty Ltd Detailed Site Ground Floor Plan – Part 1 DA205 I 30/06/2021 Morfosis Architects Pty Ltd Detailed Site/First Floor Plan-1 DA206 I 30/06/2021 Morfosis Architects Pty Ltd Detailed Site Ground Floor Plan – Part 2 DA207 I 30/06/2021 Morfosis Architects Pty Ltd Detailed Site/First Floor Plan-2 DA208 I 30/06/2021 Morfosis Architects Pty Ltd Ground Floor – U1, U2 & U3 DA209 I 30/06/2021 Morfosis Architects Pty Ltd First Floor- U1, U2, & U3 DA210 I 30/06/2021 Morfosis Architects Pty Ltd Ground Floor – U4, U5, U6 & U7 DA211 I 30/06/2021 Morfosis Architects Pty Ltd First Floor – U4, U5, U6 & U7 DA212 I 30/06/2021 Morfosis Architects Pty Ltd Ground Floor – U8, U9, U10 & U11 DA213 I 30/06/2021 Morfosis Architects Pty Ltd First Floor – U8, U9, U10, & U11 DA214 I 30/06/2021 Morfosis Architects Pty Ltd Ground Floor – U12, U13, & U14 DA215 I 30/06/2021 Morfosis Architects Pty Ltd First Floor – U12, U13, & U14 DA216 I 30/06/2021 Morfosis Architects Pty Ltd Ground Floor/First Floor – U15 DA217 I 30/06/2021 Morfosis Architects Pty Ltd Ground Floor – U16, U17 & U18 DA218 I 30/06/2021 Morfosis Architects Pty Ltd First Floor – U16, U17 & U18 DA219 I 30/06/2021 Morfosis Architects Pty Ltd Ground Floor/First Floor – U19 & U20 DA220 I 30/06/2021 Morfosis Architects Pty Ltd Ground Floor – U21, U22, U23 & U24 DA221 I 30/06/2021 Morfosis Architects Pty Ltd First Floor – U21, U22, U23 & U24 DA222 I 30/06/2021 Morfosis Architects Pty Ltd Potential Development Plan for No. 24 Holland Crescent DA223 I 30/06/2021 Morfosis Architects Pty Ltd Elevations – 1 DA300 I 30/06/2021 Morfosis Architects Pty Ltd Elevations – 2 DA301 I 30/06/2021 Morfosis Architects Pty Ltd Elevations – 3 DA302 I 30/06/2021 Morfosis Architects Pty Ltd Elevations – 4 DA202 I 30/06/2021 Morfosis Architects Pty Ltd Sections, Front Fence and Mail Box Details DA304 I 30/06/2021 Morfosis Architects Pty Ltd Area Calculations – 1 DA400 I 30/06/2021 Morfosis Architects Pty Ltd Area Calculations – 2 DA401 I 30/06/2021 Morfosis Architects Pty Ltd Active & Non-Active Areas DA402 I 30/06/2021 Morfosis Architects Pty Ltd Shadow Diagrams – 9AM DA500 I 30/06/2021 Morfosis Architects Pty Ltd Shadow Diagrams – 9AM Detailed DA500A I 30/06/2021 Morfosis Architects Pty Ltd Shadow Diagrams – 10AM DA501 I 30/06/2021 Morfosis Architects Pty Ltd Shadow Diagrams – 11AM DA502 I 30/06/2021 Morfosis Architects Pty Ltd Shadow Diagrams – 12PM DA503 I 30/06/2021 Morfosis Architects Pty Ltd Shadow Diagrams – 12PM Detailed DA503A I 30/06/2021 Morfosis Architects Pty Ltd Shadow Diagrams – 1PM DA504 I 30/06/2021 Morfosis Architects Pty Ltd Shadow Diagrams – 2PM DA505 I 30/06/2021 Morfosis Architects Pty Ltd Shadow Diagrams – 3PM DA506 I 30/06/2021 Morfosis Architects Pty Ltd Shadow Diagrams – 3PM Detailed DA506A I 30/06/2021 Morfosis Architects Pty Ltd Solar Calculations to P.O.S & Living Rooms DA507 H 24/05/2021 Morfosis Architects Pty Ltd 3D View Towards Southeast @ 11AM DA601 I 30/06/2021 Morfosis Architects Pty Ltd 3D View Towards Southeast @ 12PM DA602 I 30/06/2021 Morfosis Architects Pty Ltd 3D View Towards Southeast @ 1PM DA603 I 30/06/2021 Morfosis Architects Pty Ltd 3D View Towards Southeast @ 2PM DA604 I 30/06/2021 Morfosis Architects Pty Ltd Site Entry View from Holland Crescent DA605 I 30/06/2021 Morfosis Architects Pty Ltd Internal Driveway View Along Unit – 19, 20, 21, & 22 DA606 I 30/06/2021 Morfosis Architects Pty Ltd Solar Eye View @ 9AM DA607 I 30/06/2021 Morfosis Architects Pty Ltd Solar Eye View @ 10AM DA608 I 30/06/2021 Morfosis Architects Pty Ltd Solar Eye View @ 11AM DA609 I 30/06/2021 Morfosis Architects Pty Ltd Solar Eye View @ 12PM DA610 I 30/06/2021 Morfosis Architects Pty Ltd Solar Eye View @ 1PM DA611 I 30/06/2021 Morfosis Architects Pty Ltd Solar Eye View @ 2PM DA612 I 30/06/2021 Morfosis Architects Pty Ltd Solar Eye View @ 3PM DA613 I 30/06/2021 Morfosis Architects Pty Ltd Landscape Plans Landscape Plan – Area 1 2104.GD.01 G 08/06/2021 Greenland Design Landscape Architects Landscape Plan – Area 2 2104.GD.02 G 08/06/2021 Greenland Design Landscape Architects Landscape Details & Specification 2104.GD.03 G 08/06/2021 Greenland Design Landscape Architects Landscape Details & Specification 2104.GD.04 G 08/06/2021 Greenland Design Landscape Architects Stormwater Plans Coversheet, Legend and Drawing Schedule D00 A 08/05/2021 Loka Consulting Engineers Ground Floor / Site Stormwater Drainage Plan 1 D01-1 F 10/06/2021 Loka Consulting Engineers Ground Floor / Site Stormwater Drainage Plan D01-2 F 10/06/2021 Loka Consulting Engineers Site Stormwater Drainage Details D02-1 A 08/05/2021 Loka Consulting Engineers Site Stormwater Drainage Details D02-2 D 03/06/2021 Loka Consulting Engineers Music Result and Details D03 A 07/05/2021 Loka Consulting Engineers Music Link Report D04 A 08/05/2021 Loka Consulting Engineers Soil and Water Management Plan and Details D05 A 08/05/2021 Loka Consulting Engineers Reports BASIX Certificate No. 1102165M_03 dated 30 June 2021 NatHERS Certificate No. ZJT 340GB3E dated 30 June 2021 Waste Management Plan prepared by Loka Consulting Engineers dated 25 May 2021 1. The applicant is to pay the respondent's costs thrown away in the sum of $10,250.00 as agreed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development Consent is granted to DA-425/2020 for the demolition of buildings and construction of a multi-dwelling housing development containing 24 x two storey dwellings, landscaping and site works at 22 Holland Crescent and 545 Hume Highway, Casula subject to conditions contained in Annexure 'A'. ………………………. J Gray Commissioner of the Court Annexure A (627265, 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: 20 July 2021