Land and Environment Court New South Wales Medium Neutral Citation: Mako Minerals Pty Ltd v Liverpool City Council [2022] NSWLEC 1409 Hearing dates: Conciliation conference on 16 May 2022 Date of orders: 2 August 2022 Decision date: 02 August 2022 Jurisdiction: Class 1 Before: Adam AC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application DA-1382/2021 at 125 Kurrajong Road, Prestons subject to the conditions of consent contained at Annexure A. Catchwords: DEVELOPMENT APPLICATION – subdivision – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016, ss 7.3, 7.16 Environmental Planning and Assessment Act 1979, ss 2.2, 4.14, 4.15, 4.16, 8.7, Sch 1 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Land and Environment Court Act 1979, s 34 Liverpool Local Environmental Plan 2008, cll 2.3, 2.6, Pt 4 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Texts Cited: NSW Rural Fire Service, Planning for Bush Fire Protection, (November 2019) Category: Principal judgment Parties: Mako Minerals Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: C Shaw (Solicitor) (Applicant) A Pearman (Respondent) Solicitors: Shaw Reynolds Lawyers (Applicant) Liverpool City Council (Respondent) File Number(s): 2022/11878 Judgment 1. COMMISSIONER: The applicant, Mako Minerals Pty Ltd, appeals, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the deemed refusal by Liverpool City Council (respondent) of development application DA-1382/2021. 2. Mako Minerals Pty Ltd seeks development consent for a subdivision to create three Torrens Title industrial earthworks, internal driveway and associated site works, including tree removal and replanting. 3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). 4. Prior to the scheduled conference, the parties advised the Court that they had reached an in-principle agreement for the resolution of the matter and had prepared draft conditions of consent. 5. It was therefore not necessary to commence the matter with a site inspection with the parties and their experts in attendance. However, a conference was held with the parties' legal representatives on 16 May 2022, at which I presided. In the course of the conference I raised a number of minor matters for consideration. However, it was realised that the public notification of the DA by the Council had not been correctly conducted. The conference was therefore adjourned. The DA was exhibited between 23 May 2022 and 20 June 2022. No submissions, either from individual persons or from organisations, were received. 6. Following the end of the public notification period, a revised s 34 agreement, conditions of consent and a jurisdictional statement were filed on 28 June 2022. After further communications between the Court and the parties, a final s 34 agreement and conditions of consent were filed on 21 July 2022. 7. Pursuant to s 34(3)(a) and (b) of the LEC Act, the parties requested that I dispose of the proceedings in accordance with their decision set out in the s 34 agreement before the Court. 8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision could be made by the Court in the proper exercise of its functions (that is that the decision is one that could lawfully be made by a consent authority, or by the Court standing in the shoes of the consent authority). The parties' decision involves the Court exercising power under s 4.16 of the EPA Act. There are jurisdictional prerequisites which must be met before I can be satisfied that the Court's power can be exercised. Jurisdictional prerequisites 1. The parties provided a table listing the prerequisites which must be met, and documenting how they have been satisfied. 2. Section 2.22 and Sch 1 of the EPA Act specify mandatory requirements for community participation during the DA assessment process. As the proposal is for integrated development, a mandatory 28-day public exhibition period was required. The DA was publicly exhibited from 23 May 2022 to 20 June 2022, so I am satisfied that the requirement has been met. 3. In assessing the DA, the consent authority is required to consider such matters specified in s 4.15(1) of the EPA Act as are relevant to the development the subject of the DA. I am satisfied that the documents accompanying the DA demonstrate that relevant matters have been considered. 4. I am satisfied that pursuant to the requirement of cl 49 of the Environmental Planning and Assessment Regulation 2000, the consent of the owner was provided when the DA was lodged, by inclusion behind Tab 1 to the Class 1 Application. 5. A number of provisions of the Biodiversity Conservation Act 2016 (BC Act) are relevant considerations. 6. Section 7.3 of the BC Act contains the test for determining whether the proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. 7. Following consideration of the relevant parts of s 7.3(1) of the BC Act, the applicant prepared a biodiversity assessment report (BDAR). The BDAR demonstrates that the proposed development is not likely to have serious and irreversible impacts on biodiversity values (s 7.16). 8. Subdivision of the subject land is permissible with consent as provided for by cl 2.6 of the Liverpool Local Environmental Plan 2008 (LEP). Under the LEP, the site is zoned IN1 General Industrial and the proposed development is consistent with the objectives of the zone (cl 2.3(2)) and does not contravene any of the principal development standards in Pt 4 of the LEP. 9. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires a consent authority to consider contamination and remediation issues when determining a DA (this provision was previously cl 7 of State Environmental Planning Policy No 55—Remediation of Land). The necessary preliminary assessment and geotechnical investigation reports were prepared and a detailed site investigation report dated May 2022 was prepared. I am satisfied that the land in its present state following remediation will be suitable for industrial development. 10. I also note that the DA was referred to the Rural Fire Service (RFS) pursuant to s 4.14 of the EPA Act. The RFS recommendations are in Attachment 1 to the conditions of consent in Annexure A and are: "At the issue of a subdivision certification and in perpetuity, the entire site must be managed as an inner protection area (IPA) in accordance with the requirements of Appendix 4 of Planning for Bush Fire Protection 2019". Requirements for establishing and maintaining an IPA were provided and Condition 2 in Annexure A requires compliance with the RFS conditions. 1. I am satisfied, as explained above, that the terms of the decision set out in the parties' s 34 agreement represent decisions that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. 2. 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. 3. In making the orders, the Court also notes: 1. That Liverpool City Council as the relevant consent authority, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, has agreed to the applicant amending the development application DA-1382/2021 to rely on the amended plans and documents referred to in Condition 1 of Annexure A. 2. That the applicant has uploaded the amended application on the NSW planning portal on 18 May 2022. 3. That the applicant has subsequently filed the amended application with the Court on 18 May 2022. Orders 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to development application DA-1382/2021 at 125 Kurrajong Road, Prestons subject to the conditions of consent contained at Annexure A. ………………………. P Adam Acting Commissioner of the Court Annexure A.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 August 2022