Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Liverpool City Council [2023] NSWLEC 1306 Hearing dates: Conciliation conference on 13 October 2022 and 21 November 2022 Date of orders: 20 June 2023 Decision date: 20 June 2023 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court orders: (1) The Appeal is upheld. (2) Development consent is granted to Development Application No. DA-7/2022, for the demolition of existing structures and subdivision of land into 30 Torrens title lots, construction of a public road, civil works, site remediation and associated works on land legally described as Lot 140 in DP2475 and known as 25 Eighteenth Avenue, Austral NSW 2179, subject to the conditions at Annexure A. 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, 8.15 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 9, Pt 9.2, s 9.3 State Environmental Planning Policy (Precincts—Western Parkland City) 2021, s 1.4, Appendix 4, ss 2.6, 2.7, 6.1, Pt 4 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2 Category: Principal judgment Parties: Universal Property Group 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): 2022/176049 Publication restriction: No JUDGMENT 1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Liverpool City Council (the Council) of Development Application No. DA-7/2022 (DA) for demolition of existing structures and subdivision of land into 30 Torrens title lots, construction of a public road, civil works, site remediation and associated works on land legally described as Lot 140 in DP2475 and known as 25 Eighteenth Avenue, Austral, NSW, 2179 (the Site). 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 13 October 2022. I presided over the conciliation conference. 3. 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. 4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 15 December 2022 and a Joint Jurisdictional Statement prepared by the parties which was filed on 31 May 2023. 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 2 May 2022 to 2 June 2022 and no submissions were received. 3. The State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres 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 Growth Centres SEPP and transfer relevant provisions of 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. Appendix 4 of the WPC SEPP (Liverpool Growth Centres Precinct Plan) (Precinct Plan) is applicable to the Site. The Site is zoned R2 Low Density Residential under the Precinct Plan. Subdivision is permitted with consent under s 2.6 of the Precinct Plan. 4. Demolition is also permitted with consent pursuant to s 2.7. 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 and density. The minimum permitted lot size on the Site for a dwelling house is 300m2, where the dwelling density for the Site is a minimum of 15 dwellings per hectare. The parties submit and, based on the drawings in the amended application I accept that the proposed lots with a lot size of less than 300m2 complies with the Precinct Plan. The parties also agree that the proposed development (as amended) complies with the minimum density provision. 6. 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, I am satisfied that, subject to conditions, all essential public utility infrastructure can be made available at the Site when required. 7. Chapter 4 Remediation of land of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the proposed development. Section 4.6 of the Resilience and Hazards SEPP requires a consent authority to consider the contamination and remediation of land when determining a development application. A Stage 1 Preliminary Site Contamination Investigation Report and a Stage 2 Detailed Site Investigation Report have been prepared for the Site. Based on the assessments undertaken as part of the site investigations, the Site is considered unlikely to contain contamination. Based on the parties' submission, I am satisfied that the land is suitable for the residential purpose for which the development is proposed to be carried out. 8. Chapter 2 Infrastructure of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the proposed development. I am satisfied from the evidence that the matters for consideration under Ch 2 of the Transport and Infrastructure SEPP have been addressed in the following material which accompany the Amended DA: * Traffic response prepared by Varga Traffic Planning Pty Ltd dated 10 October 2022; * Engineering response prepared by Enspire Solutions dated 23 August 2022; * Civil engineering plans prepared by Enspire Solutions dated 9 November 2022; and * Civil Engineering & Stormwater Management Report prepared by Enspire Solutions dated 9 November 2022. 1. Chapter 9 Hawkesbury-Nepean River of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the proposed development. Section 9.2 of the Biodiversity and Conservation SEPP requires a consent authority to consider the matters referred to in Pt 9.3. I am satisfied from the evidence that the matters for consideration under Pt 9.2 have been addressed in the following reports which accompany the Amended DA: * SEE prepared by The Bathla Group dated December 2021; * Preliminary Site Investigation prepared by Geotesta Pty Ltd dated 28 June 2022; * Stage 2 Detailed Site Investigation prepared by Sydney Environmental Group Pty Ltd dated 26 September 2022; * Civil engineering plans prepared by Enspire Solutions dated 9 November 2022; and * Civil Engineering & Stormwater Management Report prepared by Enspire Solutions dated 9 November 2022. 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 Council, as the relevant consent authority, has consented to (pursuant to clause 55 of the Environment Planning and Assessment Regulation 2000) the Applicant amending Development Application No. DA-7/2022 in accordance with the amended plans and documents lodged on the NSW Planning Portal on 5 December 2022 and 8 December 2022 and filed with the Court on 5 December 2022 and 8 December 2022 as described below. Drawing No and Revision Title Prepared by Date Subdivision Plans 1 Dwg DA01 Rev 2 Site Analysis The Bathla Group 14 October 2022 Dwg DA02 Rev 2 Subdivision Plan 14 October 2022 Dwg DA03 Rev 2 Density Plan 14 October 2022 Dwg DA04 Rev 2 Orderly Development Plan 14 October 2022 Dwg DA05 Rev 2 Building Envelope Plan 14 October 2022 Dwg DA06 Rev 2 Shadow Diagram 1 – Winter 9am-12pm 14 October 2022 Dwg DA07 Rev 2 Shadow Diagram 2 – Winter 1pm-3pm 14 October 2022 Dwg LP-01 Rev A Public Domain Plan The Bathla Group 26 October 2022 Survey Plan 2 Dwg DA08 Rev 2 Survey Plan The Bathla Group 14 October 2022 Engineering Plans 4 Dwg 210045-DA-C01.01 Rev 3 Cover Sheet and Drawing Schedule Enspire Solutions 9 November 2022 Dwg 210045-DA-C01.21 Rev 3 Specification Notes 9 November 2022 Dwg 210045-DA-C01.41 Rev 3 General Arrangement Plan 4 November 2022 Dwg 210045-DA-C03.01 Rev 3 Demolition, Erosion & Sediment Control Plan 9 November 2022 Dwg 210045-DA-C03.21 Rev 3 Erosion & Sediment Control Details 9 November 2022 Dwg 210045-DA-C03.31 Rev 3 Sediment Basement Plan & Details 9 November 2022 Dwg 210045-DA-C04.01 Rev 3 Bulk Earthworks, Cut & Fill Plan 9 November 2022 Dwg 210045-DA-C04.21 Rev 3 Bulk Earthworks, Cut & Fill Sections, Sheet 01 9 November 2022 Dwg 210045-DA-C04.22 Rev 3 Bulk Earthworks, Cut & Fill Sections, Sheet 02 9 November 2022 Dwg 210045-DA-C05.01 Rev 4 Siteworks & Stormwater Management Plan, Sheet 01 9 November 2022 Dwg 210045-DA-C05.02 Rev 4 Siteworks & Stormwater Management Plan, Sheet 02 9 November 2022 Dwg 210045-DA-C06.01 Rev 5 Road Typical Cross Sections 9 November 2022 Dwg 210045-DA-C07.01 Rev 3 Road Longitudinal Sections, Sheet 01 9 November 2022 Dwg 210045-DA-C07.02 Rev 3 Road Longitudinal Sections, Sheet 02 9 November 2022 Dwg 210045-DA-C11.01 Rev 3 Pavement, Signage & Linemarking Plan 9 November 2022 Dwg 210045-DA-C14.01 Rev 1 Siteworks Details 9 November 2022 Dwg 210045-DA-C20.01 Rev 3 Catchment Plan Pre-Development 9 November 2022 Dwg 210045-DA-C20.21 Rev 4 Catchment Plan Post-Development 9 November 2022 Reports 5 Schedule of Amendments (Dwg DA10 Rev 1) The Bathla Group 14 October 2022 6 9.9m Rigid Truck Swept Turning Paths Varga Traffic Planning Pty Ltd 24 October 2022 7 Traffic response Varga Traffic Planning Pty Ltd 10 October 2022 8 Engineering response Enspire Solutions 23 August 2022 9 Stage 2 Detailed Site Investigation Sydney Environmental Group 26 September 2022 10 Salinity Management Plan Sydney Environmental Group 26 September 2022 11 Civil Engineering & Stormwater Management Report Enspire Solutions 9 November 2022 Orders 1. The Court orders: 1. The Appeal is upheld. 2. Development consent is granted to Development Application No. DA-7/2022, for the demolition of existing structures and subdivision of land into 30 Torrens title lots, construction of a public road, civil works, site remediation and associated works on land legally described as Lot 140 in DP2475 and known as 25 Eighteenth Avenue, Austral NSW 2179, subject to the conditions at Annexure A. L Sheridan Acting Commissioner of the Court 176049.22 Annexure A (306700, 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: 20 June 2023