Land and Environment Court New South Wales Medium Neutral Citation: Kowalczyk v Liverpool City Council; Tabone v Liverpool City Council; Rothshire Pty Ltd v Liverpool City Council [2022] NSWLEC 1479 Hearing dates: Conciliation conference on 2 September 2022 Date of orders: 09 September 2022 Decision date: 09 September 2022 Jurisdiction: Class 1 Before: Dixon SC Decision: Proceedings 2021/257756 The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application no. DA-404/2021, as amended, for use of one unauthorised building; use of the site as a landscape material supplies business, and erection of covered bulky store and erection of garage to be used in association with residential use at 10 Wolstenholme Avenue, also known as 648 Greendale Road, Greendale (being Lot 6 in Deposited Plan 245146), subject to the conditions in Annexure A. (3) The exhibits are returned except for A, B, C, D, E, J, K, M, 1, 2, 4, 5, 6 and 7. Proceedings 2022/69633 The Court orders: (1) The appeal is upheld. (2) The applicant is to provide the additional information as set out in Annexure A to Liverpool City Council (Council). (3) Upon the applicant providing the additional information as required by Order 2 above to Council's reasonable satisfaction, Council is directed to issue a building information certificate in respect of building information certificate application no. BC-181/2021 concerning the property at 10 Wolstenholme Avenue, also known as 648 Greendale Road, Greendale (being Lot 6 in Deposited Plan 245146). (4) The exhibits are returned except for A, B, C, D, E, J, K, M, 1, 2, 4, 5, 6 and 7. Proceedings 2022/234935 The Court orders: (1) The appeal is upheld. (2) The applicant is to carry out the works and provide the additional information set out in Annexure A to Liverpool City Council. (3) Upon the applicant finalising the works and providing the additional information as set out in Annexure A to the reasonable satisfaction of the Council, the Council is directed to issue a building information certificate in respect of building information certificate application no. BC-78/2022 concerning the property at 10 Wolstenholme Avenue, also known as 648 Greendale Road, Greendale (being Lot 6 in Deposited Plan 245146). (4) The exhibits are returned except for A, B, C, D, E, J, K, M, 1, 2, 4, 5, 6 and 7. Catchwords: DEVELOPMENT APPLICATION – application seeking development consent for the use of an unauthorised building, use of the site as a landscaping material supplies business and erection of covered bulky store and erection of garage to be used in association with residential use – conciliation conference – agreement between the parties – orders BUILDING INFORMATION CERTIFICATE – application seeking approval for the unlawful construction of two metal sheds marked as "B1" and "B2" on the architectural drawings – conciliation conference – agreement between the parties – orders BUILDING INFORMATION CERTIFICATE – application seeking approval for the unlawful construction of the large southern shed known as the "Office, Storage, Workshop" – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979, ss 8.7, 8.15(3), 8.25 Land and Environment Court Act 1979, s 34 Liverpool Local Environmental Plan 2008, cll 7.6, 7.7, 7.31 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (repealed) State Environmental Planning Policy No 55—Remediation of Land (repealed) Water Management Act 2000 Texts Cited: Liverpool Development Control Plan 2008 Category: Principal judgment Parties: Proceedings 2021/257756 Alana Kowalczyk (Applicant) Liverpool City Council (Respondent) Proceedings 2022/69633 Philip Joseph Tabone (Applicant) Liverpool City Council (Respondent) Proceedings 2022/234935 Rothshire Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: C Leggat SC (Applicants) I Hemmings SC with L Sims (Respondent) Solicitors: Antunes Lawyers (Applicants) Hones Lawyers (Respondent) File Number(s): 2021/257756; 2022/69633; 2022/234935 Judgment Background 1. This judgment deals with the following three appeals: 1. Proceedings no. 2021/257756—an appeal against the actual refusal of development application no. DA-404/2021 (DA) for the retention of existing earth and building works, use of part of the site as a cattle feedlot and associated works, use of part of the site as a landscape material supplies and associated works; 2. Proceedings no. 2022/69633—an appeal against refusal of building information certificate application no. BIC-181/2021 in relation to sheds B1 (shade shed) and B2 (feed store); and 3. Proceedings no. 2022/234935—an appeal against refusal of building information certificate application no. BC-78/2022 in relation to the southern shed (workshop, storage and office). 1. Each appeal was lodged on behalf of the owners of 10 Wolstenholme Avenue, Greendale (also known as 648 Greendale Road, Greendale) being Lot 6 in Deposited Plan 245146 (site). 2. They were listed for hearing together and evidence in one was evidence in the other where relevant because they concern the same site. After several days of hearing the parties agreed to resolve each of the proceedings by way of s34 agreements as follows: 1. approval of the development application, as amended by the Council on 2 September 2022 to remove the cattle feedlot (Revision 6 plans), subject to conditions; and 2. approval of the two BIC applications, subject to conditions. 1. The parties requested that the hearing be adjourned, and the Court arrange a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The Court accommodated their request and the s34 conference was held forthwith on 2 September 2022. I presided over the conciliation conference. 2. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeals and granting development consent to the development application subject to conditions and directing the Council to issue a building information certificate to the two building information certificate applications subject to the Council's reasonable satisfaction of the additional information to be provided by the applicant (as set out in Annexure A to the respective s34 agreements). 3. 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 functions under ss 4.16 and 8.25 of the EPA Act to grant consent to the development application and direct the Council to issue a building information certificate, respectively. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance in these proceedings have been satisfied in a joint jurisdictional statement filed with the s34 agreements. 4. After a consideration of the parties' written submission and the evidence before the Court received at the hearing, I am satisfied that the orders sought are within power for the following reasons. Jurisdictional prerequisites Biodiversity Conservation Act 2016 1. The DA involves the clearing of native vegetation in excess of the biodiversity offsets scheme threshold. The applicant has prepared a biodiversity development assessment report (BDAR) (Ex B Tab 9) which calculates the biodiversity credits required to offset the clearing. A condition of development consent is proposed that requires the applicant to retire the required number of biodiversity credits. Water Management Act 2000 1. The DA involves works within a natural watercourse (relating to the dams). A controlled activity approval will be required prior to the carrying out of these works. 2. Water access licences may be needed to take water from the water source. 3. As the DA is not for integrated development, any approvals or licences under the Water Management Act will separately be required. Environmental Planning and Assessment Act 1979 1. The development, as amended, is not designated development because the surface area of the dams will not have a maximum aggregated surface area in excess of 0.5ha. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP) 1. State Environmental Planning Policy No 55—Remediation of Land was transferred to Ch 4 of the Resilience & Hazards SEPP on 2 December 2021. 2. Section 4.6 requires the consent authority to consider whether the land is contaminated and be satisfied that the site is suitable for the proposed use before development consent can be granted. 3. The previous unauthorised filling of the site presents a risk of contaminated material having been imported to the site. The applicant has prepared a detailed site investigation (Ex K Tab 11) which concludes that the site will be suitable for the proposed uses subject to a remediation action plan being prepared for the location of soils sample numbered E6. The conditions of development consent require the preparation of a remediation action plan for this area and the remediation of it and a site validation report. 4. The proposed development also proposes the remediation of Dams 1 and 3 to address nutrient loads within the dams caused by prior agricultural use of the land. Remediation is required to prevent water pollution downstream of the land. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity & Conservation SEPP) 1. The land is within the Hawkesbury-Nepean catchment. 2. Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River was transferred to Ch 9 of the Biodiversity & Conservation SEPP on 2 December 2021. 3. The general aims of the Policy are to ensure that development within the catchment is considered in a regional context. 4. The parties are satisfied that the proposed development, which includes remediation of contaminated dams, erosion and sediment controls across the site and revegetation of parts of the land, including riparian areas that were previously cleared, is consistent with the aims of the Policy. I accept that to be the fact. Liverpool Local Environmental Plan 2008 (LEP) 1. The DA was lodged with the consent of the owners of the land (Ex J Tab 15). The proposed development only relates to the site. 2. The land is zoned RU1 Primary Production. Development for the purposes of landscape material supplies is permissible with development consent in the zone. 3. The parties agree and I accept based on the evidence before the Court that the proposed development, as amended, is consistent with the aims of the LEP and the RU1 zone. 4. Part of the land is identified as environmentally significant land for the purposes of cl 7.6 of the LEP. Mandatory relevant considerations are set out in cl 7.6(2). The parties are satisfied, and I am also satisfied that the impacts of the proposed development on the environmentally significant land have been adequately assessed. The proposed development involves the remediation of Dams 1 and 3, erosion and sediment controls across the site and revegetation of riparian areas. 5. The land is not identified on the Acid Sulfate Soils Map for the purposes of cl 7.7 of the LEP. 6. The proposed development involves earthworks. Clause 7.31(3) sets out mandatory relevant considerations relating to earthworks. The parties agree and I accept based on the evidence before the Court that the impacts of earthworks have been assessed in terms of the impact on drainage patterns, soil stability, soil and fill material, watercourses, amenity of adjoining properties. Having regard to the previous disturbance of the land, the parties agree, and I accept that it is unlikely that the proposed development will disturb any relics. Liverpool Development Control Plan 2008 1. The parties agree and I accept that the objectives of the following controls in the DCP are satisfied for the following reasons: DCP control How satisfied Part 1.2 Tree preservation Although trees are proposed to be removed, substantial replanting is proposed in the landscape plan. Furthermore, biodiversity offsets are required by the conditions of development consent. Part 1.3 Landscaping and Incorporation of Existing Trees As above Part 1.4 Bushland and Fauna Habitat As above Preservation Part 1.6 Water Cycle Management The proposed development involves the implementation of stormwater management and sediment and erosion controls across the site. Part 1.7 Development near a watercourse The proposed development involves sediment and erosion and stormwater management across the site, remediation of Dams 1 and 3 and revegetation of riparian areas. Part 1.8 Erosion and sediment control The proposed development involves erosion and sediment controls across the site and revegetation of riparian areas. Part 1.10 Contaminated Land Risk See above in relation to Resilience & Hazards SEPP Part 1.11 Salinity risk The applicant has prepared a salinity management plan (Ex B Tab 5) Part 1.15 On-site sewage management systems The proposed development involves on-site sewage system associated with the domestic and landscape material supplies use. The conditions of development consent prohibit the use of the irrigation area for cattle grazing. The system will require approval under s 68 of the Local Government Act 1993. Part 1.20 Carparking and access The parties agree that adequate provision has been made for carparking and that access is appropriate. Conditions of development consent limit the operating hours of trucks associated with the landscape material supplies use and limit on the number of truck movements associated with the development. Part 1.24 Landfilling See above in relation to Resilience & Hazards SEPP Part 1.25 Waste disposal and re-use facilities The conditions of development consent will ensure that waste generated from demolition and construction is in accordance with the DCP. Part 5.1 Site planning The amended development application is suitable for the site. Part 5.4 Building design, style and streetscape The proposed development complies with the height control for rural areas. Part 5.5 Landscaping and fencing The landscaping proposed is suitable. Part 5.6 Car parking and access As above Part 1.20 Part 5.7 Amenity and environmental impact The proposal as amended will have a satisfactory impact on amenity and the environment. Part 9.10 Landfill See above in relation to Resilience & Hazards SEPP Part 9.11 Dams The proposed development incorporates removal of two dams (2 and 4) and remediation of two dams (1 and 3). Conclusion 1. 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. Final orders Proceedings 2021/257756 1. The Court notes that: 1. Liverpool City Council, as the relevant consent authority, has agreed pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application no. DA-404/2021 with the plans and documents listed in Annexure A (the amended development application). The amended development application does not include the cattle feedlot. 2. The applicant uploaded the amended development application onto the NSW planning portal on 2 September 2022. 3. The applicant filed the amended development application with the Court on 2 September 2022. 4. All costs made in these proceedings pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 remain extant. 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to development application no. DA-404/2021, as amended, for use of one unauthorised building; use of the site as a landscape material supplies business, and erection of covered bulky store and erection of garage to be used in association with residential use at 10 Wolstenholme Avenue, also known as 648 Greendale Road, Greendale (being Lot 6 in Deposited Plan 245146), subject to the conditions in Annexure A. 3. The exhibits are returned except for A, B, C, D, E, J, K, M, 1, 2, 4, 5, 6 and 7. Proceedings 2022/69633 1. The Court orders: 1. The appeal is upheld. 2. The applicant is to provide the additional information as set out in Annexure A to Liverpool City Council (Council). 3. Upon the applicant providing the additional information as required by Order 2 above to Council's reasonable satisfaction, Council is directed to issue a building information certificate in respect of building information certificate application no. BC-181/2021 concerning the property at 10 Wolstenholme Avenue, also known as 648 Greendale Road, Greendale (being Lot 6 in Deposited Plan 245146). 4. The exhibits are returned except for A, B, C, D, E, J, K, M, 1, 2, 4, 5, 6 and 7. Proceedings 2022/234935 1. The Court orders: 1. The appeal is upheld. 2. The applicant is to carry out the works and provide the additional information set out in Annexure A to Liverpool City Council. 3. Upon the applicant finalising the works and providing the additional information as set out in Annexure A to the reasonable satisfaction of the Council, the Council is directed to issue a building information certificate in respect of building information certificate application no. BC-78/2022 concerning the property at 10 Wolstenholme Avenue, also known as 648 Greendale Road, Greendale (being Lot 6 in Deposited Plan 245146). 4. The exhibits are returned except for A, B, C, D, E, J, K, M, 1, 2, 4, 5, 6 and 7. ………………………. S Dixon Senior Commissioner of the Court Proceedings 2021/257756 Annexure A (348469, pdf) Proceedings 2022/69633 Annexure A (103953, pdf) Proceedings 2022/234935 Annexure A (116027, 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: 09 September 2022