746 Greendale Road Greendale Pty Ltd v Liverpool City Council [2023] NSWLEC 1372

Land and Environment Court New South Wales

Medium Neutral Citation: 746 Greendale Road Greendale Pty Ltd v Liverpool City Council [2023] NSWLEC 1372 Hearing dates: 29, 30 and 31 May and 1 June 2023 Date of orders: 18 July 2023 Decision date: 18 July 2023 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: In Proceedings 2022/234271, the Court orders that: (1) The appeal is dismissed. (2) The Applicant's development application No. DA-688/2022 seeking consent for the use of land for a landscape supply business and associated works at 746 Greendale Road, Greendale, is determined by way of refusal. (3) The exhibits are returned, with the exception of exhibits A, B, C, D, E and 1. In Proceedings 2022/77111, the Court orders that: (1) The appeal is upheld. (2) Pursuant to the provisions of s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, Development Control Order NO-973/2021 is modified such that the period for compliance with Development Control Order NO-973/2021 is modified to read: "The Development Control Order must be complied with from the 16th of September 2023". Catchwords: DEVELOPMENT APPLICATION – proposed landscape material supplies business – determination of development application – appeal against development control order - whether impacts on biodiversity have been assessed – potential impacts on biodiversity values not assessed – potential serious and irreversible impacts on Cumberland Plain Woodland and Cumberland Plain land snail not assessed – biodiversity development assessment report cannot be relied upon to determine development application - date for compliance with the terms of a development control order modified. Legislation Cited: Biodiversity Conservation Act 2016, ss 1.3, 1.5, 6.5,6.12, 6.15, 7.2, 7.3, 7.5, 7.7, 7.13, 7.16, Pt 6, Pt 7 Biodiversity Conservation Regulation 2017 cll 1.4, 6.7, 6.8 Environmental Planning and Assessment Act 1979, ss, 4.15, 4.16, 8.7, 8.18, 9.34, Sch 5 Liverpool Local Environmental Plan 2012, cll 2.3, 7.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 4.9 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Cases Cited: El Kouri v Gemaveld Pty Ltd [2023] NSWCA 78 Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Kouflidis v Salisbury City Corporation (1982) 29 SASR 321 Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (2021) 247 LGERA 62; [2021] NSW CA 2 Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345 ; [2018] NSWLEC 207 Texts Cited: Liverpool Community Participation Plan 2019 Liverpool Development Control Plan 2008 NSW Department of Planning, Industry and Environment, Biodiversity Assessment Method Manual, 2020 Category: Principal judgment Parties: 746 Greendale Road Greendale Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: C Leggatt SC (Applicant) A Seton (Solicitor) (Respondent)