Land and Environment Court New South Wales Medium Neutral Citation: The Hub Austral Pty Ltd v Liverpool City Council [2023] NSWLEC 1078 Hearing dates: Conciliation conference 14 November 2022 Date of orders: 21 February 2023 Decision date: 21 February 2023 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The appeal is upheld. (2) Development application DA-558/2022, as amended, for a subdivision into 23 Torrens Title lots including demolition of all existing structures, site remediation, removal of trees, earthworks, construction of new roads, drainage and provision of services at 325 Fifteenth Avenue, Austral, is determined by the grant of consent subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 9, ss 9.3, 9.4, 9.5 State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Appendix 4, ss 2.6, 2.7, 4.1AA, 4.1B, 5.1, 6.1 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.118 Texts Cited: Liverpool Growth Centre Precincts Development Control Plan 2012 Category: Principal judgment Parties: The Hub Austral Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) C Campbell (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicants) Liverpool City Council (Respondent) File Number(s): 2022/210725 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA-558/2022 (DA) by Liverpool City Council (Council). The land subject to the DA is identified as Lot 357 on DP 2475 and commonly known as 325 Fifteenth Avenue, Austral (site). 2. The DA, as amended, seeks consent for land subdivision to create 23 Torrens Title lots along with demolition of existing structures, site remediation, removal of trees, earthworks, construction of new roads, drainage and provision of services. 3. I note the advice of the parties that Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the DA to rely upon the documents in the table below: Plan Name Drawing number Revision Date Prepared by Concept Plans Coverpage A01 07 15/11/2022 Planzone Subdivision Plan A02 07 15/11/2022 Planzone BEP Ground Floor 1/2 A06 07 15/11/2022 Planzone BEP Ground Floor 2/2 A08 07 15/11/2022 Planzone Public Domain Plan A10 07 15/11/2022 Planzone Dwelling Density Plan A18 08 24/11/2022 Planzone Civil plans Cover Sheet 02612_100 01 28/04/2022 C&M Consulting Engineers Demolition/Tree Removal Plan 02612_120 02 27/09/2022 C&M Consulting Engineers General Arrangement Plan – Sheet 01 02612_201 06 14/11/2022 C&M Consulting Engineers General Arrangement Plan – Sheet 02 02612_202 06 14/11/2022 C&M Consulting Engineers Bulk Earthworks 02612_231 02 08/11/2022 C&M Consulting Engineers Road Longitudinal Sections 02612_301 01 28/04/2022 C&M Consulting Engineers Typical Road Sections 02612_401 02 04/05/2022 C&M Consulting Engineers Stormwater Drainage - External Catchment Plan 02612_601 01 28/04/2022 C&M Consulting Engineers Stormwater Drainage – Water Quality Catchment Plan 02612_602 02 27/09/2022 C&M Consulting Engineers Temporary Bio Retention/ On-Site Detention Plan & Details – Sheet 01 02612_651 02 27/09/2022 C&M Consulting Engineers Temporary Bio Retention/ On-Site Detention Plan & Details – Sheet 02 02612_651 01 28/04/2022 C&M Consulting Engineers Sediment & Erosion Control Details 02612_701 01 28/04/2022 C&M Consulting Engineers Reports Updated Stormwater Management Report prepared by C&M Consulting Engineers 1. I am further advised that the amended application was lodged on the NSW Planning Portal on 15 December 2022 and was filed with the Court on 3 February 2023. 2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 14 November 2022. I presided over the conciliation conference. 3. After more time was given, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and filed a signed agreement to that effect on 3 February 2023. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended, subject to conditions. 4. 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. 5. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties sought to assist here by compiling a jurisdictional note (filed 3 February 2023). Mindful of this advice, I find as follows in regard to jurisdiction. Jurisdictional considerations State Environmental Planning Policy (Precincts—Western Parkland City) 2021 - Appendix 4 - Liverpool Growth Centres Precinct Plan 1. I accept the advice of the parties that State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (Precincts WP SEPP) applies; and it is Appendix 4, the Liverpool Growth Centres Precincts Plan, which provides the more directly pertinent provisions. 2. Section 2.6 permits land subdivision with development consent. 3. Under s 2.7, demolition of the existing structures is permissible with consent within the land zoned R2. 4. With respect to s 4.1AA and lots with an area less than 300m², I accept the advice of the parties and am satisfied that those lots less than 300m² will contain a sufficient building envelope to enable the erection of a dwelling house. This is based on the agreed position of the parties and the building envelope plans submitted with the application and referenced in consent conditions. 5. Section 4.1B is concerned with residential density. Under subs (3), the density of any residential development to which this clause applies is not to be less than the density shown on the Residential Density Map in relation to that land. The applicable control is 15 dwellings per hectare. I accept the parties advice that there is clear compliance with this requirement. 6. Relevant to s 5.1, an area within the site has been allocated for future road widening as required by Transport for NSW (TfNSW). 7. Relevant to s 6.1(1), I accept the advice of the parties that public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Consideration has been given to whether the site is contaminated as required by s 4.6(1). The Applicant has prepared and submitted the following documents with the Class 1 Application: (1) Stage 1 and Stage 2 Detailed Site Investigation, and (2) Remedial Action Plan. 2. The Stage 1 and Stage 2 Detailed Site Investigation concludes that traces of asbestos and the concentrations of contaminants detected are unlikely to present an unacceptable direct contact human health exposure risk. 3. The Remedial Action Plan outlines the methodology for remediation of the site to ensure its suitability for the proposed use and concludes that the remedial goal can be achieved, and the site made suitable for the proposed development subject to the implementation of the strategies, methodologies and measures set out in the remedial action plan. Conditions have been included addressing this. The requirements of s 4.6(1) have been met. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 2 contains planning controls for the removal of vegetation on land within non-rural areas. The site is located in R2 Low Density Residential zoning and I accept the advice of the parties that the proposal does not propose the removal of trees or vegetation significant to the locality. 2. I accept the advice of the parties that Chapter 9, concerned with the Hawkesbury-Nepean River, applies and their explanation of the application of relevant provisions. The requirement of s 9.3 to give consideration to the general planning considerations and the specific planning policies and recommended strategies (at s 9.4 and 9.5) has been met. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. Pursuant to s 2.118, the site has frontage to Fifteenth Avenue which is identified as a classified road. As such, Council has provided written notice to TfNSW in relation to obtaining its concurrence. The parties are satisfied that appropriate conditions of consent are provided to accommodate TfNSW concerns as per its letter of response dated 14 December 2022. On this basis I too am satisfied. Other matters 1. Section 4.15(1) of the EPA Act requires a consent authority to take into consideration certain other matters as relevant: * Mindful of subs (1)(a)(iii), I have given consideration to Liverpool Growth Centre Precincts Development Control Plan 2012. Here I note the relevant particulars included in the parties' jurisdictional note. * In regard to subs (1)(d), I note the advice in the parties' jurisdictional note that public notification occurred but that no submissions were received. * I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss (1)(b), (c) and (e) of the EPA Act. Conclusion 1. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 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 merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. 3. The Court orders that: 1. The appeal is upheld. 2. Development application DA-558/2022, as amended, for a subdivision into 23 Torrens Title lots including demolition of all existing structures, site remediation, removal of trees, earthworks, construction of new roads, drainage and provision of services at 325 Fifteenth Avenue, Austral, is determined by the grant of consent subject to the conditions of consent in Annexure A. P Walsh Commissioner of the Court ********** 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: 21 February 2023