Land and Environment Court New South Wales Medium Neutral Citation: IPD 3 Austral Pty Ltd v Liverpool City Council [2023] NSWLEC 1227 Hearing dates: Conciliation conference on 11 and 13 April 2023 Date of orders: 16 May 2023 Decision date: 16 May 2023 Jurisdiction: Class 1 Before: Harding AC Decision: The Court orders: (1) The Appeal is upheld. (2) Development Application No. DA 353/2021, as amended, for demolition of all existing structures on site and Torrens Title subdivision into 30 residential allotments and 4 residue lots and 1 lot for future acquisition, over two stages with the creation of new roads, construction of temporary basins and allocation of infrastructure and services at DP 57438 Cnr Lot 3, 460 Fourth Avenue, Austral, is determined by the grant of development consent, subject to the conditions set out in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – Torrens Title Subdivision – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016, Pt 8 Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.6, 9.5 State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Appendix 4, ss 1.2, 2.2, 4.1AA, 4.1A, 4.1AB, 4.1B, 5.9, 5.10, 6.1 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sydney Regional Growth Centres) 2006 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119 State Environmental Planning Policy Amendment (Water Catchments) 2022 Category: Principal judgment Parties: IPD 3 Austral Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) C Campbell (Solicitor) (Respondent) Solicitor: Mills Oakley (Applicant) C Campbell (Respondent) File Number(s): 2022/345323 Publication restriction: No Decision under appeal File Number(s): 2022/345323 Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by IPD 3 Austral Pty Ltd (the Applicant) against the Liverpool City Council's (the Respondent) deemed refusal of Development Application number DA-353/2021. 2. The Development Application, as now amended, seeks consent for demolition of the existing structures, subdivision of 1 existing lot into 30 low density residential lots and 4 residue lots and 1 lot for future acquisition and creation of new roads, construction of temporary basins and allocation of infrastructure and services on land identified as DP 57438 Cnr Lot 3, commonly known as 460 Fourth Avenue, Austral. 3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 11 April 2023. 4. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable. The parties' agreement was to seek orders granting Development Consent to the Development Application, subject to conditions. 5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 7. At the time the Development Application was lodged to the Council, State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) was in operation. On 1 March 2022, the Growth Centres SEPP was repealed, and its provisions were transferred to the State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (Precincts WP SEPP). There are a number of matters in Appendix 4 - Liverpool Growth Centres Precinct Plan, of the Precincts WP SEPP, which are relevant to this matter, and these have been considered as follows: 1. Section 1.2, the parties agree that the proposal is consistent with the aims of the Precinct Plan. 2. Section 2.2, the Site is generally zoned R2 Low Density Residential with a small part being in the SP2 zone as shown on the Land Zoning Map. The parties agree that proposed development is consistent with the objectives of the R2 Zone as established by the Land Use Table, specifically to provide for the housing needs of the community within a low-density residential environment. 3. Section 4.1AA(2), the R2 part of the site may include lots between 225–300m², if the consent authority is satisfied that such a lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot. Ten of the proposed lots are below 300m², the remaining of the lots are above 300m². In support of the lots below 300m², an Amended Building Envelope Plan was prepared confirming all 10 lots with areas between 250-290m² can contain sufficient building envelopes to enable the erection of a dwelling house on each lot. 4. Section 4.1A does not apply to parts of the Site zoned R2. A residue lot identified as "Lot 133" on the subdivision plans has been created for the purpose of future acquisition by Transport for NSW (TfNSW) for the area zoned SP2. Accordingly, no residential development is proposed in any non-residential zone. 5. Section 4.1AB and 4.1B, the site is shown listed with a dwelling density of 15 pursuant to the Residential Density Map. Accordingly, the standard minimum lot size for a dwelling house is 300m². As discussed above, s 4.1AA enables lots below this minimum to be granted consent in accordance with the Amended Building Envelope Plan. The parties agree that the Building Envelope plan has been provided and justifies the proposed density. This also satisfies the requirements of s 4.1B regarding density. 6. Section 5.9, clearing of vegetation is proposed consistent with this provision, with trees located within Lot 133 to be retained. The Applicant has provided a Demolition Plan, a Tree Removal Plan within the Amended Concept Engineering Plans, both prepared by North Western Surveys. These documents provided the basis for an assessment by the parties in relation to tree removal. 7. Section 5.10, the Site lies within the Gandangara Local Aboriginal Land Council jurisdiction. The Applicant has prepared and submitted an Aboriginal Heritage Due Diligence Assessment Report prepared by Environmental Assessments Pty Ltd dated February 2021 as part of the Development Application. This report notes that no Aboriginal objects were found during the field assessment, and that no Aboriginal objects are likely to be present within the subject site. The Report concludes no further Aboriginal archaeological assessment is required prior to the commencement of works. 8. Section 6.1, Development Consent cannot be granted unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available and adequate arrangements have been made to make that infrastructure available when required. The Development Application includes the below documentation and outcomes of communication with Sydney Water: 1. An Amended Survey of the Site was provided as part of the Development Application denoting available utilities. 2. Sheet 201 'Services Plan' of the Amended Concept Engineering Plans denotes the existing and proposed service connections for the Site. 3. Pursuant to s 6.1(2)(c) the parties have obtained confirmation from Sydney Water that the requisite supply of sewage infrastructure will become available within the life of the development consent: 1. Sydney Water has confirmed that it is planning to construct the Upper South Creek Advanced Water Recycling (AWRC) and associated trunk infrastructure which will be available by the financial year (FY) of 2025/2026; 2. Between now and FY 2025/2026, Sydney Water will actively seek opportunities to provide wastewater services above the capped limit and/or ahead of the proposed timescales, where suitable; 3. As the requisite infrastructure will be operational within the five-year life of the development approval, the parties confirm appropriate conditions have been prepared to resolve this issue; and 4. The Applicant received a notice of anticipated requirements response from Sydney Water dated 1 June 2022 (Tab 5 of the s 34 Agreement Bundle) which confirmed Sydney Water's timeline for wastewater servicing. 1. Conditions of consent have been incorporated regarding the access to infrastructure pursuant to this provision. 1. The Development Application was notified for a period of 15 days between 7 July 2021 and 22 July 2021. No public submissions were received for the Development Application. 2. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The Applicant has prepared and submitted a Combined Stage 1 Preliminary and Stage 2 Detailed Site Investigation prepared by Sydney Environmental Group dated 12 October 2020. This report investigates the contamination status of the Site and concludes the Site is suitable for the proposed use, subject to the implementation of recommendations to be followed prior to demolition. Appropriate conditions have been included in Annexure A to this judgment requiring the implementation of the recommendations in the report. 3. The proposed development includes the clearing of vegetation. The parties have identified, and I am satisfied, that the site is in an area that is mapped as being the subject of a Biodiversity Certification Order under Pt 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 s 2.6(2) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) does not apply to the site. 4. Rural Fires Act 1997 (RF Act) - the Development Application is identified as "bushfire prone land" and requires a bushfire safety authority under s 100B of RF Act from the NSW Rural Fire Services (NSW RFS). A Bushfire Assessment Report was prepared by Bushfire Consulting Services dated 15 November 2021. A Supplementary Letter in response to a NSW RFS request for further particulars was prepared by Bushfire Consulting Services Pty Ltd (dated 19 October 2022) which provided a revised assessment on the asset protection zone on adjoining Lot 2 DP 574738 which is subject to an 88B instrument for an asset protection zone. In response to the documentation provided by the Applicant, and after the conversion of two residential lots to residual lots, the NSW RFS issued General Terms of Approval to the Development Application subject to general conditions which are addressed in Annexure A to this judgment. 5. The BC SEPP applies to the site based on the lodgement date of the Development Application and as a result of savings provisions in State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments Amendment). Section 9.5(1) of the historical BC SEPP sets out planning policies and recommended strategies to be considered by a consent authority in determining this application. In relation to water quality and catchment management, the Applicant has prepared documentation being a Soil Salinity Assessment prepared by Sydney Environmental Group dated 16 October 2020 and an Amended Concept Stormwater Management Plan Report prepared by North Western Surveys dated 4 April 2022. Appropriate conditions of consent have been prepared to address the quality of expected stormwater discharge, and to manage erosion and sediment loss. I am satisfied that the requirements of this policy have been met. 6. Section 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP) applies to the Development Application as the site is split between R2 Low Density and SP2 Infrastructure (Classified Road). This requires that the Development Application be referred to TfNSW and that the consent authority is satisfied of the requirements under s 2.119(2). The parties have detailed the assessment undertaken in response to s 2.119, including design outcomes. A Traffic Assessment Report was prepared by People Trans dated 6 April 2021 and referred to TfNSW. TfNSW raised the potential future widening of Fifteenth Avenue and confirmed access to the site from Fifteenth Avenue would not be supported. As a result of further communication, TfNSW have now provided confirmation regarding the potential future widening within correspondence dated 17 February 2023. The parties confirm that the proposal has responded to the requirements of this policy and I am therefore satisfied that the requirements of that section have been met. 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' agreement. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders. 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. Liverpool City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA-353/2021. 2. That the Amended Application was filed with the Court on 6 April 2023. 1. The Court orders: 1. The appeal is upheld. 2. Development Application No. DA 353/2021, as amended, for demolition of all existing structures on site and Torrens Title subdivision into 30 residential allotments and 4 residue lots and 1 lot for future acquisition, over two stages with the creation of new roads, construction of temporary basins and allocation of infrastructure and services at DP 57438 Cnr Lot 3, 460 Fourth Avenue, Austral, is determined by the grant of development consent, subject to the conditions set out in Annexure "A". Stuart Harding Acting 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: 16 May 2023