Land and Environment Court New South Wales Medium Neutral Citation: UPG 49 Pty Ltd v Liverpool City Council [2023] NSWLEC 1037 Hearing dates: Conciliation Conference on 15 September 2022 Date of orders: 2 February 2023 Decision date: 02 February 2023 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Court grants the Applicant leave to amend Development Application No. DA-1311/2021 in accordance with the amended plans and documents described in Annexure A. (2) The Appeal is upheld. (3) Development consent is granted to Development Application No. DA-1311/2021, for the subdivision of land creating twenty (20) Torrens title lots and the construction of twenty (20) two-storey dwellings, three (3) two-storey detached secondary dwellings, demolition of existing structures and construction of public roads, tree removal, landscaping and civil works on land legally described as Lot 1 in DP215195 known as 40 Old Glenfield Road, Casula NSW 2170, Lot 2 in DP1162379 known as 19-21 Streeton Place, Casula NSW 2170 and Lot 1 in DP1162379 known as 50-60 Glenfield Road, Casula NSW, subject to the conditions at Annexure B. Catchwords: APPEAL – development application – subdivision of land – construction of dwellings – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cll 55, Sch 1 Environmental Planning and Assessment Regulation 2021 Land and Environment Court Act 1979, s 34 Liverpool Local Environmental Plan 2008, cll 2.6, 7.31 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 11 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119 Category: Principal judgment Parties: UPG 49 Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: J Reid (Applicant) L Zumot (Solicitor) (Respondent) Solicitors: Macpherson Kelley (Applicant) Liverpool City Council (Respondent) File Number(s): 2022/163969 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for the subdivision of land at 40 Old Glenfield Road, Casula into 20 Torrens title lots with the construction of 20 two-storey dwellings, three detached secondary dwellings and the construction of roads, the removal of trees, landscaping and the carrying out of civil works which extend to 19-21 Streeton Place and 50-60 Old Glenfield Road, Casula. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 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 15 September 2022 and continued on various dates on Online Court. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 23 January 2023, following the agreement of the Council to an amendment to the development application, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). There is no requirement for the amended development application to be lodged on the NSW Planning Portal, as the applicable savings provision in Environmental Planning and Assessment Regulation 2021 provides that the EPA Regulation 2000 continues to apply to development applications submitted before 1 March 2022, except that a requirement to use the NSW Planning Portal under the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court. 4. The amendments to the development application include changes to the building footprints and layouts, changes to the drainage easement, and the introduction of civil works on the land at 19-21 Streeton Place and 50-60 Old Glenfield Road. The amended development application is accompanied by the consent of the owners of that land. 5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters about which the Court must be satisfied prior to the grant of development consent I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The subject site is zoned R2 Low Density Residential pursuant to the Liverpool Local Environmental Plan 2008 (LLEP). Pursuant to cl 2.6 of the LLEP, subdivision is permissible with development consent, and pursuant to the zoning table, development for the purpose of dwelling houses are permissible in the R2 Low Density Residential zone. * The proposed development complies with the applicable development standards under the LLEP for the minimum subdivision lot size, the maximum height of building and the maximum floor space ratio. * The development application includes earthworks for carrying out of civil works. Based on the Aboriginal Cultural Heritage Assessment Report dated 7 September 2022, the Bulk Earthworks plans, the erosion and sediment control plans and the Waste Management Plan dated October 2021, I have considered the matters set out in cl 7.31 of the LLEP. * The development application in the Class 1 Application was accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation 2000. * The site is located within the area identified as the Georges River Catchment pursuant to Ch 11 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which continues to apply to the development pursuant to the savings provision in s 6.65 of the SEPP B&C. Based on the Statement of Environmental Effects dated August 2022 and the Site Contamination Investigation Report dated 31 May 2021, I have considered the matters and principles contained in Pt 11.2 of the SEPP B&C. * Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Site Contamination Investigation Report dated 31 May 2021, the site is suitable for the development. * The site has frontage to Old Glenfield Road, which is a classified road, and s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) applies. It is not practicable to provide vehicular access to the site from a road other than the classified road. However, the proposal includes the construction of a new public road to access most of the subdivided lots so that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development. Consistent with the requirements of s 2.119(2)(c) and based on the Acoustic Assessment dated 2 May 2022, the proposed development includes measures to ameliorate potential traffic noise arising from the adjacent road. * The development application was notified between 14 December 2022 and 19 January 2023, and one submission was received. I have considered the issues raised in that submission. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that Liverpool City Council, as the relevant consent authority, has agreed, pursuant to cl 55(1) of the EPA Regulation 2000, to the applicant amending development application DA1311/2021 in accordance with the amended plans and documents listed in Annexure A. 4. The Court orders that: 1. The Court grants the Applicant leave to amend Development Application No. DA-1311/2021 in accordance with the amended plans and documents described in Annexure A. 2. The Appeal is upheld. 3. Development consent is granted to Development Application No. DA-1311/2021, for the subdivision of land creating twenty (20) Torrens title lots and the construction of twenty (20) two-storey dwellings, three (3) two-storey detached secondary dwellings, demolition of existing structures and construction of public roads, tree removal, landscaping and civil works on land legally described as Lot 1 in DP215195 known as 40 Old Glenfield Road, Casula NSW 2170, Lot 2 in DP1162379 known as 19-21 Streeton Place, Casula NSW 2170 and Lot 1 in DP1162379 known as 50-60 Glenfield Road, Casula NSW, subject to the conditions at Annexure B. J Gray Commissioner of the Court Annexure A Annexure B ********** 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 February 2023