Land and Environment Court New South Wales Medium Neutral Citation: UPG 204 Pty Ltd v Liverpool City Council [2023] NSWLEC 1254 Hearing dates: Conciliation conference on 14 April, 19 April and 24 April 2023 Date of orders: 24 May 2023 Decision date: 24 May 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) Leave is granted to the Applicant to rely upon the amended material listed in Annexure A. (2) The appeal is upheld. (3) Development consent is granted to Development Application No. DA-1310/2021, for the demolition of existing structures, tree removal, site remediation and the proposed Torrens title subdivision of land into 12 lots comprising 10 residential lots, 1 residue lot and 1 superlot, construction of a public road, stormwater drainage and other associated site works on land legally described as Lot 882 in DP2475 and known as 85 Ninth Avenue, Austral NSW 2179, subject to the conditions at Annexure B. Catchwords: DEVELOPMENT APPLICATION – Torrens title subdivision – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Interpretation Act 1987, s 30A Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Precincts – Western Parkland City) 2020,1 s 1.4, Appendix 4, ss 2.6, 2.7, Pt 4, 4.1, 4,1AA, 5.9, 6.1 State Environmental Planning Policy (Resilience and Hazards) 2021, cls 4.6 The State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Category: Principal judgment Parties: UPG 204 Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: E Fleming (solicitor) (Applicant) C Campbell (solicitor) (Respondent) Solicitors: Macpherson Kelley (Applicant) Liverpool City Council (Respondent) File Number(s): 2022/329476 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal by Liverpool City Council (the Respondent) of development application DA 1310/2021. This development application seeks consent for the demolition of existing structures, tree removal, site remediation works and the proposed Torrens title subdivision of land in to 12 lots comprising 10 residential lots, 1 residue lot and 1 superlot, construction of a public road, stormwater drainage and other associated site works on land legally described as Lot 882 in DP2475 and known as 85 Ninth Avenue, Austral. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. 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 14 April 2023. I presided over the conciliation conference. 4. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 5. 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 one 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. From this I note the following: 1. Landowner's consent has been provided in the Class 1 Application. 2. The development application was notified from 11-28 April 2022. No submissions were received in this period. The application was also lodged as integrated development and referred to the NSW Rural Fire Service. General Terms of Approval were received, dated 30 May 2022. 3. The State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growths SEPP) was applicable to the DA at the time of lodgement. The State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (WPC SEPP) commenced on 1 March 2022 and served to repeal the Growths SEPP and transfer relevant provisions to the WPC SEPP. Section 1.4 of the WPC SEPP provides that s 30A of the Interpretation Act 1987 applies to all transferred provisions, such that the transferred provisions are to be construed as if they had not been so transferred. Subsequently, WPC SEPP Appendix 4 - Liverpool Growth Centres Precinct Plan (Precinct Plan) applies to the site. 4. Pursuant to the Precinct Plan the site is partly zoned R2 Low Density Residential and partly R3 Medium Density Residential. Subdivision of land is permitted with consent pursuant to s 2.6 of the Precinct Plan and demolition also permitted with consent pursuant to s 2.7. The proposed subdivision is sought for the part of the property subject to R2 zoning. The parties submit and, based on this and the information in the Statement of Environmental Effects (SEE) that the proposed development meets the objectives of this zone by providing for future residential development. 5. Part 4 of the Precinct Plan speaks to development standards. Of these, the only applicable development standards are regarding lot sizes. Pursuant to s 4.1, the site is not mapped with a minimum lot size on the relevant lot size map. 6. Section 4.1AA states: 4.1AA Subdivision resulting in lots between 225–300m2 (1) This section applies to land in the following zones— (a) Zone R2 Low Density Residential, (b) Zone R3 Medium Density Residential. (2) Development consent maybe granted to the subdivision of land to which this section applies resulting in the creation of a lot that has an area of less than 300m2 (but not less than 225m2) if the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot. 1. The parties submit and, based on the drawings in the amended application I accept that no lots are proposed with a lot size less than 225m2, and for the proposed lots with a lot size of less than 300m2, a building envelope plan has been provided that demonstrates a sufficient building envelope for a dwelling house on each relevant lot. 2. Pursuant to Precinct Plan s 5.9 Preservation of Trees or Vegetation, tree removal is proposed to facilitate the construction of roads, the provision of services, and bulk earthworks to provide sufficient building platforms. The development application is supported by an arborist report and from this, the parties submit, and I accept that the proposed tree removal is acceptable. 3. Section 6.1 of the Precinct Plan requires me to be satisfied that any 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. The parties submit and, based on this and Appendix C and D of Annexure A, I am satisfied that, subject to conditions, all essential public utility infrastructure can be made available at the site when required. 4. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, based on the parties' submission and the imposition of condition 164 of the conditions of consent (Annexure B) I am satisfied that the land will be adequately remediated as necessary to make it suitable for the purpose for which the development is proposed to be carried out. 5. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies as the proposed application seeks consent to remove existing trees on the site. Subsequently a preliminary tree assessment report prepared by Monaco Designs Pty Ltd has been provided with the Class 1 Application, which assesses all trees on site that are proposed to be removed, in accordance with Ch 2 of this SEPP. 1. For these reasons I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. 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' decision. 3. The Court notes: 1. The parties have reached an agreement in a conciliation conference conducted pursuant to section 34(3) of the Land and Environment Court Act 1979, as to a decision that the Court could have made in the proper exercise of its functions. 2. The Respondent, as the relevant consent authority has agreed under clause 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), consents to the Applicant amending the development application No. DA-1310/2021 in accordance with the following: Document Title Ref. Date Prepared by Cover Sheet and Drawing Schedule Drawing No 210046-DA-C01.01 Revision 6 24.06.2022 Enspire Solutions Pty Ltd General Notes Drawing No 210046-DA-C01.21 Revision 5 24.09.2022 Enspire Solutions Pty Ltd General Arrangement Plan Drawing No 210046-DA-C01.41 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Demolition Plan Drawing No 210046-DA-C02.01 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Erosion and Sediment Control Plan Drawing No 210046-DA-C03.01 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Erosion and Sediment Control Details Drawing No 210046-DA-C03.21 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Sediment Basin Plan and Sections Drawing No 210046-DA-C03.31 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Cut and Fill Plan Drawing No 210046-DA-C04.01 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Site Cut and Fill Sections Drawing No 210046-DA-C04.21 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Siteworks and Stormwater Management Plan Drawing No 210046-DA-C05.01 Revision 6 24.06.2022 Enspire Solutions Pty Ltd Stormwater Staging Arrangement Drawing No 210046-DA-C05.51 Revision 4 24.06.2022 Enspire Solutions Pty Ltd Road Typical Cross Sections Drawing No 210046-DA-C06.01 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Road Longitudinal Sections Drawing No 210046-DA-C07.01 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Pavement, Signage and Linemarking Plan Drawing No 210046-DA-C11.01 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Siteworks Details Sheet 01 Drawing No 210046-DA-C14.01 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Siteworks Details Sheet 02 Drawing No 210046-DA-C14.02 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Stormwater Details Drawing No 210046-DA-C18.01 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Basin Details Drawing No 210046-DA-C18.51 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Pre-Development Catchment Plan Drawing No 210046-DA-C20.01 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Post-Development Catchment Plan Drawing No 210046-DA-C20.11 Revision 5 24.06.2022 Enspire Solutions Pty Ltd External Catchment Plan Drawing No 210046-DA-C20.21 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Turning Path Plan Drawing No 210046-DA-C22.01 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Safety Design Drawing No 210046-DA-C23.01 Revision 5 24.06.2022 Enspire Solutions Pty Ltd Civil Engineering /Stormwater Management Report Rev. C 24.06.2022 Enspire Solutions Pty Ltd Flood Impact Assessment Rev 00 28.09.2021 Rhelm Pty Ltd TUFLOW Model JI526_TUFLOW_01 Rhelm Pty Ltd 1. The Court orders: 1. Leave is granted to the Applicant to rely upon the amended material listed in Annexure A. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA-1310/2021, for the demolition of existing structures, tree removal, site remediation and the proposed Torrens title subdivision of land into 12 lots comprising 10 residential lots, 1 residue lot and 1 superlot, construction of a public road, stormwater drainage and other associated site works on land legally described as Lot 882 in DP2475 and known as 85 Ninth Avenue, Austral NSW 2179, subject to the conditions at Annexure B. E Washington Acting Commissioner of the Court Annexure A (157851, pdf) Annexure B (1097862, 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: 24 May 2023