Land and Environment Court New South Wales Medium Neutral Citation: Orchard Ozland Pty Ltd v Liverpool City Council [2022] NSWLEC 1510 Hearing dates: Conciliation conference on 15 August 2022 Date of orders: 20 September 2022 Decision date: 20 September 2022 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. 1034/2021, as amended, for demolition of existing structures, excluding existing dwelling, and Torrens Title subdivision to create 26 residential lots and one residue lot containing the existing dwelling, with associated road construction, landscaping, tree removal, earthworks, temporary OSD basin and civil works, over seven stages, at 265, 273 and 283 Twelfth Avenue, and 230 and 240 Thirteenth Avenue, Austral, is determined by the grant of consent, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential subdivision – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B Environmental Planning and Assessment Regulation 2021, cl 3, Sch 6 Environmental Planning and Assessment Regulation 2000, cl 55 State Environmental Planning Policy (Biodiversity and Conservation) 2021, cll 9.4, 9.5 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Precincts – Western Parkland City) 2021 cll 2.6, 2.7, 3.9, 5.9, 6.1 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Sydney Growth Centres) 2006, cll 6C, 7 Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) Category: Principal judgment Parties: Orchard Ozland Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) R O'Gorman-Hughes (Respondent) Solicitors: Mills Oakley (Applicant) Liverpool City Council (Respondent) File Number(s): 2022/103897 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application number: DA-1034/2021, as amended, for a Torrens Title subdivision into 27 lots across 7 stages, including demolition of existing structures (excluding the existing dwelling), removal of trees, earthworks, construction of new roads, drainage and provision of services (the proposal), at 265, 273 and 283 Twelfth Avenue, and 230 and 240 Thirteenth Avenue, Austral (the site), by Liverpool City Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 August 2022. I presided over the conciliation conference. 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. 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 function under s 4.16 of the EPA Act to grant consent to the development application. 4. There are preconditions to the exercise of power to grant development consent for the proposal. The application is amended 1. The Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) continues to apply to the application because the application was lodged with the Council on 9 September 2021. The Class 1 application was filed with the Court on 11 April 2022, and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021). 2. The application was amended to rely on amended plans (listed below) and the amended application was uploaded, with the Council's consent under cl 55 of the EPA Regulation 2000, to the NSW planning portal on 30 August 2022. The amended application was filed with the Court on 9 September 2022. Plan Name Drawing number Revision Date Prepared by Public Domain Plan Public Domain Plan 1 00 04/07/2022 North Western Surveys Amended Concept Engineering Plans Face Sheet 001 02 16/08/2022 North Western Surveys Construction notes 002 00 02/08/2021 North Western Surveys Sediment & erosion control and tree removal plan 101 01 05/07/2022 North Western Surveys Sediment & erosion control notes 102 00 02/08/2021 North Western Surveys Services plan 201 02 16/08/2022 North Western Surveys Cut fill depth plan and sections 301 02 16/08/2022 North Western Surveys Proposed civil works 401 02 16/08/2022 North Western Surveys Longitudinal sections Twelfth Avenue and Road 01 501 00 02/08/2021 North Western Surveys Longitudinal sections Roads 02 and Temp. Road 05 & 06 502 01 05/07/2022 North Western Surveys Longitudinal sections future Roads 03 and 04 503 01 05/07/2022 North Western Surveys Typical Road cross sections & details 504 01 05/07/2022 North Western Surveys Overall Catchment plan 701 01 16/08/2022 North Western Surveys Internal catchment plan 702 02 16/08/2022 North Western Surveys Basin catchment plan 703 02 16/08/2022 North Western Surveys Basin Typical details 704 01 05/07/2022 North Western Surveys Lot Calculation & landscaping plan 901 02 16/08/2022 North Western Surveys Amended Subdivision Plans Plan of proposed subdivision 1 of 9 01 15/08/2022 North Western Surveys Plan of proposed subdivision staging 2 of 9 01 15/08/2022 North Western Surveys Plan of proposed subdivision stage 1 3 of 9 01 15/08/2022 North Western Surveys Plan of proposed subdivision stage 2 4 of 9 01 15/08/2022 North Western Surveys Plan of proposed subdivision stage 3 5 of 9 01 15/08/2022 North Western Surveys Plan of proposed subdivision stage 4 6 of 9 01 15/08/2022 North Western Surveys Plan of proposed subdivision stage 5 7 of 9 01 15/08/2022 North Western Surveys Plan of proposed subdivision stage 6 8 of 9 01 015/08/2022 North Western Surveys Plan of proposed subdivision stage 7 9 of 9 01 15/08/2022 North Western Surveys Reports Schedule of amendments prepared by North Western Surveys dated August 2022 Amended Statement of Environmental Effects prepared by North Western Surveys dated 16 August 2022 Land owners consent from 283 Twelfth Avenue, Austral dated 28 June 2022 Land owners consent from 230-240 Twelfth Avenue, Austral dated 27 July 2022 Amended Concept Stormwater Management Plan prepared by North Western Surveys dated 5 July 2022 Amended Waste Management Plan dated August 2022 Amended Bushfire Assessment Report prepared by Advanced Bushfire Performance Solutions dated 03 August 2022 1. According to the parties, the major changes to the amended application, when compared to the original application, are as follows: 1. A reduction in the number of Torrens Title residential lots from 28 to 27; 2. additional subdivision stages (7 in total) to facilitate on site sewerage management of the existing dwelling on lot 7231; 3. increase in the width of 'Road 2' by 1m; 4. increase in the width and size of lots on the northern street block (adjoining Road 2); 5. provide additional street tree planting adjacent to lot 7231; and 6. reduction in the extent of civil works such that no works are proposed on 220 Thirteenth Avenue. Jurisdictional pre-requisites to the grant of consent 1. The site is zoned as bushfire prone land. Pursuant to s 100B(1) of the Rural Fires Act 1997, a bushfire safety authority is required for the subdivision of land that could lawfully be used for a residential purpose. The NSW Rural Fire Service provided general terms of approval to the application subject to conditions on 10 August 2022 and the conditions are included in the conditions of consent at Annexure A. 2. When the application was lodged, State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) was in force. SEPP 55 was repealed on 1 March 2022 and its provisions were transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards). The application included Stage 1 and Stage 2 Contamination Assessments and a Remedial Action Plan. The reports confirm that the site can be made suitable for the proposed development. I accept the Council's submission that the status of the site has been considered and the Council is satisfied that the site is suitable for the proposed residential subdivision in accordance with cl 4.6 of SEPP Resilience and Hazards. 3. When the application was lodged, the Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (Hawkesbury-Nepean River SREP) was in force. The Hawkesbury-Nepean SREP was repealed on 1 March 2021, and its provisions were transferred to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation). I accept the Council's submission that the proposal is consistent with the specific planning policies and recommended strategies under cl 9.5 for the following reasons: 1. The proposal is consistent with the aim of Ch 9 of SEPP Biodiversity and Conservation because it manages potential impacts of future development on the site (cl 9.4(a)); 2. The proposal is consistent with the strategies listed in the Action Plan of the Hawkesbury-Nepean Environmental Planning Strategy (cl 9.4(b)); 3. The proposal is suitable for the site and there are no other reasonable suitable alternatives (cl 9.4(c)); and 4. The proposal appropriately manages environmental impacts (cl 9.4(d)). 1. State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Precincts SEPP) commenced on 1 March 2022 and applies to all land in an identified growth centre. The site is within the Austral Precinct. The controls are contained in Appendix 4 – Liverpool Growth Centres Precinct Plan. 2. Development applications lodged before the commencement of the Precincts SEPP, but not finally determined, must be determined as if Precincts SEPP had not commenced (cl 3.9 of the Precincts SEPP and cl 6C of State Environmental Planning Policy (Sydney Growth Centres) 2006). The application was lodged on 9 September 2021 and the State Environmental Planning Policy (Sydney Growth Centres) 2006 (Growth Centres SEPP) applied to the proposal at the time it was lodged. Pursuant to cl 7, the provisions applying to the carrying out of development in the Austral Precinct were contained within Appendix 8 of the Growth Centres SEPP. I accept the agreement of the parties that the savings and transitional provision in cl 3.9 of the Precincts SEPP does not affect the transfer of provisions of the Growth Centres SEPP to the Precincts SEPP for the reasons given in the Statement of Jurisdictional Issues filed with the Court on 9 September 2022, and consequently the renumbering and any subsequent amendments to the Precincts SEPP are applicable to the application. 3. Under the Precincts SEPP, the site is zoned R2 Low Density Residential, and the objectives of the zone are: i. To provide for the housing needs of the community within a low density residential environment; ii. To enable other land uses that provide facilities or services to meet the day to day needs of residents; iii. 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; and iv. 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. Development consent is required for the subdivision of land, at cl 2.6, the demolition of structures cl 2.7, and the removal of a tree, at cl 5.9. 2. I accept the Council's submission that public utility infrastructure will be available to the site, pursuant to cl 6.1. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 9 September 2022 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application number 1034/2021, as amended, for demolition of existing structures, excluding existing dwelling, and Torrens Title subdivision to create 26 residential lots and one residue lot containing the existing dwelling, with associated road construction, landscaping, tree removal, earthworks, temporary OSD basin and civil works, over seven stages, at 265, 273 and 283 Twelfth Avenue, and 230 and 240 Thirteenth Avenue, Austral, is determined by the grant of consent, subject to the conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court ********** (Annexure A) 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 September 2022