Land and Environment Court New South Wales Medium Neutral Citation: Ghignone v Liverpool City Council [2022] NSWLEC 1021 Hearing dates: Conciliation conference on 1 and 15 November 2021 Date of orders: 21 January 2022 Decision date: 21 January 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs thrown away as agreed or assessed as a result of the amendment of the application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development Consent is granted to Development Application Number DA-26/2021 for: (1) residential subdivision to create 38 Torrens Title residential lots; (2) the construction of 24 abutting dwelling houses with 5 secondary dwellings; and (3) associated road construction and civil works and tree removal, subject to the conditions of consent in Annexure "A". Catchwords: DEVELOPMENT APPLICATION: residential subdivision – road construction – civil works – conciliation conference – agreement between parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Sydney Region Growth Centres) 2006, cll 4.1AB, 4.1AC, 4.1B State Environmental Planning Policy No 55 – Remediation of Land, cl 7 Category: Principal judgment Parties: Bruno Ghignone (First Applicant) Angela Ghignone (Second Applicant) Liverpool City Council (Respondent) Representation: Counsel: A Perkins (Solicitor) (Applicant) T Poisel (Respondent) Solicitors: Project Lawyers (Applicant) Liverpool City Council (Respondent) File Number(s): 2021/216336 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Liverpool City Council of Development Application No. DA-26/2021 for residential subdivision with a component of Integrated Housing to create 38 Torrens Title residential lots and for the construction of 24 abutting dwelling houses with 5 secondary dwellings and associated road construction and civil works at Lots 877 and 878 in Deposited Plan 2475, being 35 Ninth Avenue, Austral and 45 Ninth Avenue, Austral. 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 November 2021, and at which I presided. 3. At the conciliation conference, the parties reached in-principle agreement on the matters in contention, subject to the resolution of certain issues which the parties' advised me were capable of resolution. I adjourned the conference to allow the parties to continue to resolve those matters. 4. On 15 November 2021, I further adjourned the conciliation conference to permit the parties to finalise the terms of the agreement that was filed with the Court on 16 December 2021, in accordance with s 34(10) of the LEC Act. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 6. 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. 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 jurisdictional prerequisites that must be satisfied before this function can be exercised. 7. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP), and State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). State Environmental Planning Policy (Sydney Region Growth Centres) 2006 1. The site is located with the R2 Low Density Residential zone and R3 Medium Density Residential zone in accordance with Appendix 8 of Growth Centres SEPP, in which the proposed uses are permitted with consent, and where the relevant objectives are: 1. In respect of that portion of the site within the R2 zone: * 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. 1. In respect of that portion of the site within the R3 zone: * 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. 1. The proposal complies with the lot size provisions of cl 4.1AB of the Growth Centres SEPP, and with cl 4.1AC in respect of minimum lot sizes for secondary dwellings, and the proposed residential density is consistent with the objectives at cl 4.1B of the Growth Centres SEPP. State Environmental Planning Policy No 55 – Remediation of Land 1. Clause 7 of SEPP 55 requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the Stage 1 Preliminary Site Investigation, the Stage 2 Detailed Site Investigation, and the Remediation Action Plan prepared by Sydney Environmental Group dated 15 September 2021, I am satisfied that the site can be made suitable for the proposed development, subject to implementing a Remediation Action Plan that is an agreed condition of consent. Conclusion 1. In concluding that the development application is deserving of the grant of consent in accordance with s 4.16 of the EPA Act, I have sighted a letter prepared by the owner of adjoining land at 70 Tenth Avenue, Austral dated 14 December 2021, providing consent for the proposed development to temporarily discharge stormwater over the adjoining land. 2. 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. 3. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. Orders 1. The Court notes that: 1. The Council, as the relevant consent authority, has agreed pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000 (NSW), to amend Development Application Number DA-26/2021, with the amended plans and documents filed with the Court, and uploaded on the NSW Planning Portal on 16 December 2021 as described in condition 2 of the conditions of consent at Annexure "A". 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away as agreed or assessed as a result of the amendment of the application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development Consent is granted to Development Application Number DA-26/2021 for: (1) residential subdivision to create 38 Torrens Title residential lots; (2) the construction of 24 abutting dwelling houses with 5 secondary dwellings; and (3) associated road construction and civil works and tree removal, subject to the conditions of consent in Annexure "A". …………………… T Horton Commissioner of the Court Annexure A (1270805, 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: 21 January 2022