Land and Environment Court New South Wales Medium Neutral Citation: Low Cost Housing No. 1 Pty Limited v Liverpool City Council [2022] NSWLEC 1433 Hearing dates: Conciliation conference on 20 July 2022 Date of orders: 17 August 2022 Decision date: 17 August 2022 Jurisdiction: Class 1 Before: McEwen AC Decision: The Court orders that: (1) The appeal is upheld. (2) The applicant is to pay the respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $12,000 within 28 days of the making of these orders. (3) Development consent is granted to development application DA-782-2021, as amended, for the demolition of existing structures, site remediation, Torrens title subdivision into 21 lots over two stages, associated tree removal, civil works and road construction at 180 Ninth Avenue, Austral, 113 Reaper Street, Austral and 190 Ninth Avenue, Austral subject to the conditions set out in 'Annexure A'. Catchwords: DEVELOPMENT APPLICATION – subdivision – conciliation conference – agreement between the parties - orders Legislation Cited: Biodiversity Conservation Act 2016, Pt 7 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.5, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B Environmental Planning & Assessment Regulation 2000, cl 55 State Environmental Planning Policy (Precincts – Central River City) 2021, sch 15 item 1 State Environmental Planning Policy (Biodiversity and Conservation) 2021, cll 4, 5 State Environmental Planning Policy (Precincts – Western Parkland City) 2021 app 4, cll 1.3, 2.2, 2.3, 2.6, 2.7, 3.9, 3.26, 3.28-3.31, 4.1, 4.1AA, 4.1AB, 4.1B, 5.9, 5.10, 6.1, 6.2 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Sydney Regional Growth Centres) 2006, cl 6C State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 45 Category: Principal judgment Parties: Low Cost Housing No. 1 Pty Limited (Applicant) Liverpool City Council (Respondent) Representation: Counsel: J Farrell (Applicant) A Stafford (Respondent) Solicitors: Mills Oakley (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2021/320702 Publication restriction: Nil Judgment 1. COMMISSIONER: The nature of proceedings: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning & Assessment Act 1979 (EPA Act) by the applicant against the deemed refusal of development application No. DA-782/2021 (DA) by Liverpool City Council. 2. The DA was lodged with the respondent on 29 July 2021. The appeal was filed on 11 November 2021. 3. The appeal falls within Class 1 of the Court's jurisdiction. The statutory power to be exercised in determining the proceedings is contained in s 4.16 of the EPA Act. 4. The DA, as amended, seeks development consent for the demolition of existing structures, site remediation, Torrens title subdivision into 21 lots over 2 stages, associated tree removal, civil works and road construction at Lot 898 in Deposited Plan 2475 (180 Ninth Avenue, Austral), Lot 113 in Deposited Plan 1260220 (Lot 113 Reaper Street, Austral) and Lot 102 in Deposited Plan 1263643 (Lot 102 Ninth Avenue, Austral) (the site). The proposed stages are as follows: 1. Stage 1 – Demolition of existing structures, tree removal, civil works, road construction, and Torrens title subdivision into 16 residential lots and 2 residue lots. 2. Stage 2 – Decommissioning of the flood storage and bio-retention, and Torrens title subdivision of 1 residue lot into 5 residential lots. The development is proposed to be carried out on land legally described as Lot 898 in Deposited Plan 2475 (180 Ninth Avenue, Austral), Lot 113 in Deposited Plan 1260220 (Lot 113 Reaper Street, Austral) and Lot 102 in Deposited Plan 1263643 (Lot 102 Ninth Avenue, Austral) (site). 1. The conciliation conference: The appeal was listed for hearing on 20 and 21 July 2022. On 20 July 2022 the parties requested an adjournment of the hearing and the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). 2. I presided over the conciliation conference on 20 July 2022. 3. The parties' agreement: At the conciliation conference the parties reached agreement as to the terms of a decision which would be acceptable to the parties. This decision involves the Court upholding the appeal and granting development consent to an amended DA subject to conditions. 4. Satisfaction of jurisdiction: 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. In this case, as noted above, the parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA subject to the agreed conditions of consent in 'Annexure A' of the Respondent's Conditions of Consent. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in a joint jurisdictional statement. The respondent also provided a supplementary note on jurisdiction. The parties further explained how those prerequisites have been satisfied. The matters of relevance and the parties' explanation as to their satisfaction are summarised below. 6. Based on the evidence before me, I accept the parties' joint submission as to my jurisdiction in this case. In particular, I am satisfied in respect to the following matters. 7. Owners' consent: Owners' consent to lodge the DA has been provided as part of the documentation which accompanied the DA. 8. State Environmental Planning Policy (Sydney Regional Growth Centres) 2006 (Growth Centres SEPP): 1. As at the date of lodgement of the DA (29 July 2021) the Growth Centres SEPP applied to the DA. On 1 March 2022 State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Precincts WP SEPP) came into force. It applies to the site but there is a savings and transitional provision within Ch 3, cl 3.9 and the now repealed Growth Centres SEPP at cl 6C. The parties were of differing opinions as to whether the later State Environmental Planning Policy (Precincts – Central River City) 2021, (CRC SEPP) Sch 15 item 1 had the consequence that the CRC SEPP (due to an absence of a savings and transitional provision) in fact operated so as to transfer and renumber the provisions of the Growth Centres SEPP with the result that the Precincts WP SEPP was now to be treated as the relevant planning instrument, despite cl 3.9 which originally had preserved the application of the Growth Centres SEPP to this DA. The applicant submitted that the Growth Centres SEPP continued to apply, noting that the respondent had put forward this position in QC Austral 50 Eleventh Pty Limited v Liverpool City Council [2022] NSWLEC 1369. Before me the respondent submitted that, in fact the Precincts WP SEPP was now the relevant planning instrument. Both parties agreed however that the provisions relevant to satisfaction as to jurisdiction in this matter were the same but were differently numbered depending upon which SEPP was applicable. 2. Although the question is not without some difficulty, I am inclined to the view that the respondent's submission to me, is likely to be correct and accordingly, I will reference Precincts WP SEPP. If I am incorrect, I am satisfied that, for the purposes of jurisdiction, the same outcome would result from applying Appendix 8 of Growth Centres SEPP. 1. Precincts WP SEPP Appendix 4: 1. The Land is within the Leppington North Precinct (cl 1.3). 2. The Land is zoned R2 Low Density Residential (cl 2.2). 3. The parties agree, and I accept, that the DA can be approved having regard to the objectives of the zone (cl 2.3(2)), being 1. To provide for the housing needs of the community within a low density residential environment. 2. To enable other land uses that provide facilities or services to meet the day to day needs of residents. 3. 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. 4. 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. Pursuant to cl 2.6 the site may be subdivided with development consent. 2. Pursuant to cl 2.7 demolition may be carried out on the Site only with development consent. 3. There is no minimum lot size requirement for the site pursuant to the Lot Size Map of cl 4.1. 4. Clause 4.1AA does not apply because the minimum proposed lot size is above 300 m2. 5. The lot sizes comply with the minimum lot size in cl 4.1AB. 6. Clause 4.1B dictates the density of any residential development is not to be less than the density established by the Residential Density Map. The site has a set density of 15 dwellings/per hectare. The site has a total area of 1.21 hectares. The DA proposes at least 21 future dwellings. 7. To the extent that tree removal is proposed, development consent is sought pursuant to cl 5.9. 8. There are no heritage items located on the site nor is it located within a heritage conservation area. Clause 5.10 does not apply. 9. Clause 6.1 relates to the availability of public utility infrastructure. In relation to these provisions: 1. Pursuant to 6.1(2)(a) the applicant has received confirmation from Sydney Water that the requisite supply of water infrastructure will be available via a water main already present on Ninth Avenue. 2. Pursuant to 6.1(2)(b) the applicant has confirmed with Endeavour Energy that the requisite supply of electrical infrastructure will be available. 3. Pursuant to 6.1(2)(c) the parties have obtained confirmation from Sydney Water that the requisite supply of sewage infrastructure will become available within the life of the development consent. 1. The land is not within the Native Vegetation Protection Map for the purposes of cl 6.2. 2. Other requirements of the Precincts WP SEPP: 1. Clause 3.26 relates to development on 'flood prone and major creeks land'. Pursuant to the Development Control Map, the land is mapped as 'flood prone and major creeks land'. 2. The applicant provided a Flood Impact Assessment prepared by BG&E dated May 2022. The updated modelling and assessment included additional flood storage increases which resulted in the remaining localised impacts only occurring at a shallow depth at the neighbouring property of 190 Ninth Ave, Austral. Additional owners consents were obtained and included within the second amendment confirming acceptance to the minor remaining levels of flooding. 3. The parties' experts filed a joint civil and flooding joint report where all ASOFC contentions relating to flooding were agreed as resolved on the basis of the additional flooding information provided and the neighbouring owner's agreement to the additional impacts (described as "owner's consent" in the evidence). 4. On the basis of these documents, consent can be granted after taking into consideration the matters required under cl 3.26 of the Precincts WP SEPP. 1. Clauses 3.28-3.31 relate to the clearing of native vegetation. Pursuant to cl 3.28 (4)(g), this Part does not apply to land to which the Liverpool Growth Centres Precinct Plan 2013 (as referred to in Precincts WP SEPP Appendix 4) applies, and this includes the subject site. 2. State Environmental Planning Policy (Transport and Infrastructure) 2021: On the date the DA was lodged, the provisions of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applied. On 1 March 2022, the SEPP was repealed, and its provisions were transferred to State Environmental Planning Policy (Transport and Infrastructure) 2021. 3. Clause 45(2) requires a consent authority to give written notice to the electricity supply authority for the applicable area inviting comments about potential safety risks and take into consideration any responses received within 21 days of such a notice being issued. 4. In satisfaction of cl 45(2), the respondent gave written notice to Endeavour Energy inviting comments about potential safety risks on 14 August 2021. 5. Endeavour Energy confirmed within their written response to the respondent dated 22 September 2021 that there are no objections to the DA, subject to recommended conditions. The parties confirm these recommendations are reflected within the proposed conditions of consent. 6. Rural Fires Act 1997: The NSW Rural Fire Service issued a s 100B Bush Fire Safety Authority dated 22 September 2021 subject to General Terms of Approval. Those terms are reflected within the proposed conditions of consent. Accordingly, I am satisfied that the requirements of this planning instrument have been met. 7. State Environmental Planning Policy (Biodiversity and Conservation) 2021. When the DA was lodged, the provisions of State Environmental Planning Policy No 20 – Hawkesbury-Nepean River (No 2-1997) (Hawkesbury SEPP) were in force. On 1 March 2022, the SEPP was repealed, and its provisions were transferred to the State Environmental Planning Policy (Biodiversity and Conservation) 2021. 8. The site is located within the Hawkesbury-Nepean River catchment and is located 1.47 km to the West of the State Heritage Listed Upper Canal, which carries clean water from the Nepean River to Prospect Reservoir. 9. Pursuant to cl 4, the consent authority must consider the general planning considerations of cl 5 and the related specific planning policies of cl 6. As these considerations are reflective of those embedded in the objectives of Precincts WP SEPP, the parties are satisfied they have been appropriately considered and I agree with them. 10. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP): When the DA was lodged, the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) were in force. On 1 March 2022, SEPP 55 was repealed, and its provisions were transferred to the Resilience and Hazards SEPP. 11. Clause 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not consent to the carrying out of any development on land unless— 1. it has considered whether the land is contaminated, and 2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and 3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. The documents which accompany the DA, as amended, include reports and an amended remedial action plan prepared by GeoEnviro Consultancy. On the basis of those documents, I am satisfied that the site can be made suitable for the proposed development consequent upon the carrying out of remediation works recommended in the plan. The relevant obligations are contained within the proposed conditions of consent within 'Annexure A'. 2. Liverpool Growth Centre Precincts Development Control Plan 2021 (Liverpool Growth DCP) (DCP) applies to the land. The parties agree that the DA may be approved having regard to the provisions of the DCP. 3. EPA Act: The parties are satisfied that the DA can be approved having taken into consideration the matters in s 4.5(1)(b)-(e) of the EPA Act. 4. Biodiversity Conservation Act 2016: The parties agree that the DA does not trigger the need for a pt 7 biodiversity development assessment report. This is because no vegetation is proposed to be cleared in carrying out the development. 5. Public notification: Pursuant to the provisions of the Liverpool Community Participation Plan 2019, the DA did not require public notification because none of the proposed lots were less than 300 m2 (cl 7.6) and has not been notified. 6. Based upon the above matters, and as required by s 34(3) of the LEC Act, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. 7. Disposal of proceedings in accordance with the parties' decision: 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. 8. 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 DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 9. The Court notes that: 1. Liverpool City Council, as the relevant consent authority, has agreed, pursuant to cl 55 of the Environmental Planning & Assessment Regulation 2000, to amend development application DA-782/2021 to rely upon the engineering plans 8630-DA-000 through to 8630-DA-501 as set out in condition 1 in 'Annexure A'. 2. The amended development application was uploaded to the NSW Planning Portal on 20 July 2022. 3. The amended development application was subsequently filed with the Court on 20 July 2022. 1. The Court orders: 1. The appeal is upheld. 2. The applicant is to pay the respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $12,000 within 28 days of the making of these orders. 3. Development consent is granted to development application DA-782-2021, as amended, for the demolition of existing structures, site remediation, Torrens title subdivision into 21 lots over two stages, associated tree removal, civil works and road construction at 180 Ninth Avenue, Austral, 113 Reaper Street, Austral and 190 Ninth Avenue, Austral subject to the conditions set out in 'Annexure A'. ………………………. C McEwen Acting Commissioner of the Court Annexure A (1915024, 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: 17 August 2022