Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Liverpool City Council [2023] NSWLEC 1096 Hearing dates: Conciliation conference on 2 March 2023 Date of orders: 2 March 2023 Decision date: 02 March 2023 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Appeal is upheld. (2) Development consent is granted to Development Application No. DA-1333/2021, as amended, for the demolition of existing structures, tree removal, and the Torrens title subdivision of four (4) existing allotments into 119 Torrens Title lots comprised of 117 residential allotments, 1 residue allotment for an existing overhead powerlines easement and 1 residue allotment for future road widening, with construction of roads and associated civil and engineering works over two stages, on land legally described as Lot 377, Lot 378, Lot 379, and Lot 380 in DP2475 and known as 505-535 Fifteenth Avenue, Austral, NSW, 2179, subject to the conditions at Annexure A. Catchwords: APPEAL – development application – Torrens title subdivision – conciliation conference – agreement reached – orders made Legislation Cited: Biodiversity Conservation Act 2016, Pt 8 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Environmental Planning and Assessment Regulation 2021 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, cl 2.6 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Western Parkland City) 2021 Appendix 4 cll 2.6, 4.1AA, 4.1AB, 4.1AD, 5.10, 6.1 Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: J Smith (Applicant) C Campbell (Solicitor) (Respondent) Solicitors: Macpherson Kelley (Applicant) Liverpool City Council (Respondent) File Number(s): 2022/186990 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures, tree removal, and the Torrens title subdivision of four (4) existing allotments into 119 Torrens Title lots comprised of 117 residential allotments, 1 residue allotment for an existing overhead powerlines easement and 1 residue allotment for future road widening, with construction of roads and associated civil and engineering works over two stages on land at 505-535 Fifteenth Avenue, Austral. The development application was lodged with Liverpool City Council on 12 November 2021. 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 [9] 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 today, 2 March 2023. I presided over the conciliation conference. 3. At 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. That agreement was reached 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. The amendments to the development application include the inclusion of building envelope plans for those proposed subdivided lots that are less than 300m2, the inclusion of shadow diagrams, and updates to the plans to make it clear that the development the subject of the development application does not include any works on adjoining land. 4. 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 background to the development application, how each of the contentions raised by the Council has been resolved by amendments to the development application, and each of the jurisdictional matters about which the Court must be satisfied. 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. 5. 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 development is permissible with consent pursuant to the Liverpool Growth Centres Precinct Plan (Precinct Plan) in Appendix 4 to the State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (SEPP WPC), the land being zoned R2 Low Density Residential, SP2 Infrastructure (Classified Road) and IN2 Light Industrial under the Precinct Plan. The subdivision of land is permitted with consent pursuant to cl 2.6 of the Precinct Plan. * The proposed development does not breach any of the applicable development standards pursuant to the Precinct Plan concerning minimum subdivision lot size and density. Building envelope plans have been provided for the proposed lots that are less than 300m2 (but greater than 225m2) in satisfaction of cl 4.1AA of the Precinct Plan. Although there is no proposal for the erection of dwelling houses that forms part of the proposed development, if consideration is required concerning the minimum lot size for dwelling houses pursuant to cl 4.1AB(3)(b), the exception in cl 4.1AD applies. * To ensure that there is no breach of cl 5.10 of the Precinct Plan concerning Aboriginal objects or Aboriginal places of heritage significance, the applicant has carried out an Aboriginal Due Diligence Assessment that confirms that no Aboriginal objects or Aboriginal places of heritage significance were identified, there is no sub-surface archaeological potential and no further assessment is required before commencement of the works. * In satisfaction of cl 6.1 of the Precinct Plan and based on the documents in support of the development application (as amended), infrastructure is available within the immediate vicinity to adequately service the area, and adequate arrangements have been made to ensure that the infrastructure will be available when required. * Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Stage 1 Preliminary Site Contamination Investigation Report that accompanies the Class 1 Application, the site is suitable for the development. * Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the proposed development, as it is to be carried out within or immediately adjacent to an easement for electricity purposes. I am satisfied that the requirements of that section have been met. * The proposed development includes the clearing of vegetation. I am satisfied that the site is in an area that is mapped as being the subject of a Biodiversity Certification Order under Part 8 of the Biodiversity Conservation Act 2016, such that the prohibition on the clearing of native vegetation that exceeds the biodiversity offsets scheme threshold pursuant to cl 2.6(2) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 does not apply to the site. 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: 1. The Council, as the relevant consent authority, has consented to (pursuant to cl 55 of the Environment Planning and Assessment Regulation 2000) the Applicant amending Development Application No. DA-1333/2021 in accordance with the amended plans and documents lodged described below: Drawing No and Revision Title Prepared by Date Engineering Plans Dwg P00464-CI-DA-1001 Rev E Cover Sheet, Locality Plan, and Drawing Schedule 27 February 2023 Dwg P00464-CI-DA-1021 Rev E General Notes Dwg P00464-CI-DA-1031 Rev E General Arrangement Plan Dwg P00464-CI-DA-1051 Rev E Existing Site Survey and Services Dwg P00464-CI-DA-1061 Rev E Demolition and Tree Removal/Retention Plan Dwg P00464-CI-DA-1101 Rev E Erosion and Sediment Control Plan Dwg P00464-CI-DA-1131 Rev E Erosion and Sediment Control Details Dwg P00464-CI-DA-1201 Rev E Cut/Fill Earthworks Plan Dwg P00464-CI-DA-1231 Rev E Site Sections Sheet 1 of 4 Dwg P00464-CI-DA-1232 Rev E Site Sections Sheet 2 of 4 Dwg P00464-CI-DA-1233 Rev E Site Sections Sheet 3 of 4 Dwg P00464-CI-DA-1234 Rev E Site Sections Sheet 4 of 4 Dwg P00464-CI-DA-1301 Rev E Stormwater Catchment Plan Pre Development Dwg FP00464-CI-DA-1302 Rev C Stormwater Catchment Plan Post Development Dwg P00464-CI-DA-1321 Rev E Civil Works and Stormwater Drainage Plan Sheet 1 of 2 Dwg P00464-CI-DA-1322 Rev E Civil Works and Stormwater Drainage Plan Sheet 2 of 2 Dwg P00464-CI-DA-1401 Rev E Civil Works and Pavement Details Dwg P00464-CI-DA-1411 Rev E Bioretention Basin Plan and Section Sheet 1 of 3 Dwg P00464-CI-DA-1412 Rev E Bioretention Basin Plan and Section Sheet 2 of 3 Dwg P00464-CI-DA-1413 Rev E Bioretention Basin Plan and Section Sheet 3 of 3 Dwg P00464-CI-DA-1421 Rev E Stormwater Drainage Details Dwg P00464-CI-DA-1422 Rev E Bio-Retention Basin Details Dwg P00464-CI-DA-1501 Rev E Typical Road Cross Sections Dwg P00464-CI-DA-1521 Rev E Road Longitudinal Sections Sheet 1 of 6 Dwg P00464-CI-DA-1522 Rev E Road Longitudinal Sections Sheet 2 of 6 Dwg P00464-CI-DA-1523 Rev E Road Longitudinal Sections Sheet 3 of 6 Dwg P00464-CI-DA-1524 Rev C Road Longitudinal Sections Sheet 4 of 6 Dwg P00464-CI-DA-1525 Rev E Road Longitudinal Sections Sheet 5 of 6 Dwg P00464-CI-DA-1526 Rev E Road Longitudinal Sections Sheet 6 of 6 Dwg P00464-CI-DA-1701 Rev E Street Tree Planting Plan Dwg P00464-CI-DA-1721 Rev E Street Tree Planting Detail Building Envelope Plan Drawing no. DA05, Rev 5 Building Envelope Plan 20.02.2023 Shadow Plans DA06-A, Rev 1 9am shadow diagram north facing lots only 20.2.23 DA06-B, Rev 1 10am Shadow diagram north facing lots only 20.2.23 DA06-C, Rev 1 11m Shadow Diagram North Facing Lots 20.2.23 DA06-D, Rev 1 12pm Shadow diagram north facing lots only DA06-E, Rev 1 13pm Shadow Diagrams North Facing Lots only 20.2.23 DA06-F, Rev 1 14pm Shadow Diagram North Facing Lots only 20.2.23 DA06-G, Rev 1 15pm Shadow Diagram North Facing Lots only 20.2.23 1. The Court orders that: 1. The Appeal is upheld. 2. Development consent is granted to Development Application No. DA-1333/2021, as amended, for the demolition of existing structures, tree removal, and the Torrens title subdivision of four (4) existing allotments into 119 Torrens Title lots comprised of 117 residential allotments, 1 residue allotment for an existing overhead powerlines easement and 1 residue allotment for future road widening, with construction of roads and associated civil and engineering works over two stages, on land legally described as Lot 377, Lot 378, Lot 379, and Lot 380 in DP2475 and known as 505-535 Fifteenth Avenue, Austral, NSW, 2179, subject to the conditions at Annexure A. ………………………. J Gray Commissioner of the Court 186990.22 Annexure A (3530676, 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: 02 March 2023