Land and Environment Court New South Wales Medium Neutral Citation: KRV Investments Pty Ltd v Liverpool City Council [2023] NSWLEC 1436 Hearing dates: Conciliation conference 28 July 2023 Date of orders: 10 August 2023 Decision date: 10 August 2023 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant's written request dated 10 July 2023 (as amended) to vary clause 4.1(3) of Liverpool's Local Environmental Plan 2008 is upheld. (2) The Appeal is upheld. (3) Development consent is granted to Development Application No. DA-1122/2021, as amended, for the subdivision of land into 3 Torrens Title lots, demolition of existing structures, tree removal, construction of public roads, stormwater drainage and other associated civil works on land legally described as Lot 20 in DP1228502 and known as 225 Croatia Avenue, Edmondson Park, NSW, 2174, subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – subdivision of land – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Liverpool Local Environmental Plan 2008, cll 4.1, 4.6, 7.11, 7.31 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Texts Cited: Liverpool Community Participation Plan 2022 Category: Principal judgment Parties: KRV Investments Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: E Fleming (Solicitor) (Applicant) C Campbell (Solicitor) (Respondent) Solicitors: Macpherson Kelley (Applicant) Sparke Helmore (Respondent) File Number(s): 2022/299473 Publication restriction: Nil Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Liverpool City Council (the Respondent) of development application No. DA-1122/2021 seeking consent for the subdivision of land into 3 Torrens title lots, demolition of existing structures, tree removal, construction of public roads, stormwater drainage and other associated civil works on land legally described as Lot 20 in Deposited Plan 1228502 also known as 225 Croatia Avenue, Edmondson Park. 2. On 28 July 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. 3. Prior to the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 21 July 2023, in accordance with s 34(10) of the LEC Act. 4. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 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 a decision 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. 6. For the reasons set out below, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 7. The written consent of owners of the land on which the development is proposed accompanies the development application. 8. In the course of these proceedings, the Respondent agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to the Applicant amending the DA (Amended DA) by those documents at [38(1)]. 9. The Amended DA was notified by the Respondent, in accordance with Section 7.4 of the Liverpool Community Participation Plan 2022, between 25 May 2023 and 8 June 2023. 10. The site comprises land within the R1 General Residential zone, and R3 Medium Density Residential zone according to the Liverpool Local Environmental Plan 2008 (LLEP). Subdivision and demolition as proposed by the Amended DA is permitted in the R1 and R3 zones with consent. 11. The objectives for development in the R1 zone are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that housing densities are broadly concentrated in locations accessible to public transport, employment, services and facilities. • To facilitate development of social and community infrastructure to meet the needs of future residents. 1. The objectives for development in the R3 zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a concentration of housing with access to services and facilities. • To provide for a suitable visual transition between high density residential areas and lower density areas. • To ensure that a high level of residential amenity is achieved and maintained. 1. The site is mapped within "Area 2" and "Area 3" on the Lot Size Map at cl 4.1 of the LLEP, which relevantly provides: 1. Area 2 requires that lots be no less than 250m2, and for those lots connected to side or rear lands to be no less than 200m2. 2. Area 3 requires that lots be no less than 300m2 and lots connected to side or rear lane to be no less than 240m2. 1. Proposed Lot 1 has a proposed lot size of 6306m2 and proposed Lot 3 has an area size of 9553m2. As such, proposed Lots 1 and 3 comply with the Minimum Lot Size standard. 2. However the proposed Lot 2 has a proposed lot size of 194m2 and so does not comply with the Minimum Lot Size standard at cl 4.1. The Applicant relies upon a written request prepared in accordance with cl 4.6 of the LLEP dated 10 July 2023. 3. The written request describes the Amended DA as representing a transition wherein Lot 2 will be held, and amalgamated with land to the east legally described as Lot 6 in DP 1227875. A restriction preventing development on the site without amalgamation with Lot 6 is proposed at Condition 131 of the agreed conditions of consent. Accordingly, the non-compliance with the Minimum Lot Size standard is temporary, and not permanent. 4. I accept the position advanced by the written request that the relevant underlying objectives of the Minimum Lot Size standard are to prevent fragmentation of land which would prevent the achievement of the extent of development and nature of uses envisioned for particular locations; and to ensure that subdivision reflects and reinforces the predominant subdivision pattern of the area. 5. I also accept that the restriction cited at [16], when the subdivision pattern in the vicinity of the site is understood, has the effect of reflecting the predominant subdivision pattern evident to the east of the site. 6. Accordingly, I am satisfied that compliance with the minimum lot size standard at cl 4.1 of the LLEP is unreasonable or unnecessary in the circumstances of this case, because the relevant objectives of the standard at cl 4.1 are achieved. 7. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the minimum lot size standard given the configuration of Lot 2 supports the proposed amalgamation when the particular geometry of the existing and proposed subdivision pattern are understood; which in turn supports the assertion that future consolidation is orderly and economic, and temporary in nature. 8. In forming this opinion of satisfaction, and the opinion of satisfaction that the proposed development is in the public interest, it is relevant to record here that the proposed subdivision conforms to the Indicative Edmondson Park Layout Plan notwithstanding the otherwise abrupt change in subdivision pattern from the existing subdivision pattern evident today. 9. I am also satisfied that the development proposed is consistent with the objectives for development in the R1 and R3 zone, and that the contravention does not constitute a reason for which the secretary's concurrence cannot be assumed pursuant to cl 4.6(5) of the LLEP. 10. Clause 7.11 of the LLEP precludes the grant of consent unless the consent authority, or the Court on appeal, is satisfied that the dwelling density likely to be achieved by the subdivision is not less than the dwelling density shown in the Dwelling Density Map at cl 7.11(2). 11. The dwelling density for the western portion of the site is 28 dwellings/hectare. The dwelling density for the eastern portion of the site is 17 dwellings/ hectare. 12. I am satisfied that the required dwelling density will likely be achieved by the subdivision because Condition 128 of the agreed conditions of consent requires the registration of a covenant, prior to the release of a subdivision certificate, to restrict the further development on Lot 1 and Lot 3 with a dwelling density consistent with cl 7.11(2) of the LLEP, and as I understand the Applicant has lodged a separate development application with the Respondent for development consent to construct a residential flat building on Lot 3 and medium density development on Lot 1. 13. On the basis of the following plans and other documents, I have considered those matters to be considered at cl 7.31(3) of the LLEP and conclude that earthworks will not have a detrimental effect on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land: 1. Geotechnical Site Investigation Report prepared by Geotesta dated 17 May 2021 2. Engineering plans, prepared by Sky Engineering & Project Management dated 9 March 2023 3. Civil and Stormwater Design Report prepared by Sky Engineering & Project Management dated 23 February 2023 4. Site Contamination Investigation Report prepared by Geotesta dated 17 May 2021 5. Aboriginal Due Diligence Assessment report prepared by Apex Archaeology dated 16 September 2021 State Environmental Planning Policy (Resilience and Hazards) 2021 1. The Site Contamination Investigation Report prepared by Geotesta dated 17 May 2021 concludes, on the basis of sampling from 19 boreholes, land titles search and assessment of historical aerial photography, that the site is suitable for the land use proposed in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. The Amended DA is accompanied by a Preliminary Tree Assessment, prepared by Monaco Designs PL dated 31 March 2021 (the Tree Assessment) that tabulates the assessment of 95 trees on the site, 22 of which are assessed as having very high retention value. 2. The Tree Assessment defines 'very high' retention value to comprise "Endangered or threatened species, heritage/historical or cultural significance, endemic species/remnant vegetation, habitat for endangered or threatened fauna, commemorative planting. Trees on neighbouring properties, including Council Land.". 3. The Amended DA seeks consent for the removal of all trees on the site, pursuant to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021, because those trees are located either in the footprint of the proposed infrastructure works or within the footprint of the future residential flat buildings. Integrated development 1. The proposed development has been referred to Sydney Water and the relevant requirements, issued 31 March 2022, are at Attachment 3 of the agreed conditions of consent at Annexure A. 2. Pursuant to s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021, Endeavour Energy has provided requirements at Attachment 4 of the agreed conditions of consent at Annexure A. Rural Fires Act 1997 1. The parties agree that the site is identified as being bushfire prone and includes areas identified as Vegetation Category 3 on the relevant Bushfire Prone Lands Map. 2. The development application was accompanied by a 'Bushfire Protection Assessment' prepared by Travers Bushfire and Ecology Pty Ltd dated 16 September 2021. 3. The development application was referred to the NSW Rural Fire Services pursuant to s 100B of the Rural Fires Act 1997 (RFA), and a Bushfire Safety Authority for the Development pursuant to s 100B of the RFA was issued on 16 May 2023, at Attachment 2 of the agree conditions of consent at Annexure A. Conclusion 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' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The Court notes that: 1. The Respondent agrees to the Applicant amending Development Application No. DA-1122/2021, pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000, in accordance with the following amended plans and documents described below: Drawing No and Revision Title Prepared by Date Subdivision Plan Drawing No. DA02 Revision 4 Subdivision Plan The Bathla Group 2 March 2023 Engineering Plans 2 Drawing No. C-0001 Issue G Locality Plan and Drawing List Sky Engineering & Project Management 9 March 2023 Drawing No. C-0002 Issue G General Notes and Legends 9 March 2023 Drawing No. C-0010 Issue H General Arrangement Plan 9 March 2023 Drawing No. C-0020 Issue H Siteworks Sections 9 March 2023 Drawing No. C-0021 Issue H Typical Cross Sections 9 March 2023 Drawing No. C-0100 Issue H Bulk Earthworks Cut\Fill Plan 9 March 2023 Drawing No. C-0200 Issue H Siteworks and Drainage Plan Sheet 1 9 March 2023 Drawing No. C-0201 Issue G Siteworks and Drainage Plan Sheet 2 9 March 2023 Drawing No. C-0210 Issue G Road 1 Longitudinal Section 9 March 2023 Drawing No. C-0211 Issue G Road 2 & Road 3 Longitudinal Section 9 March 2023 Drawing No. C-0320 Issue H Stormwater Drainage Catchment Plan 9 March 2023 Drawing No. C-0400 Issue H Linemarking and Signage Plan 9 March 2023 Drawing No. C-0700 Issue H Erosion and Sediment Control Plan 9 March 2023 Drawing No. C-0710 Issue G Erosion and Sediment Control Details 9 March 2023 Drawing No. C-0900 Issue H Vehicle Swept Path Analysis 9 March 2023 Reports / Documents 3 Civil and Stormwater Design Report & MUSIC Link report Sky Engineering & Project Management 23 February 2023 4 Preliminary Tree Assessment Monaco 31 March 2021 5 Preliminary Site Investigation Report SLR Consulting Australia Pty Ltd 20 June 2022 1. The amended material referred to in paragraph 38(1) was filed with the Court on 3 April 2023, 28 April 2023 and 31 July 2023. Orders 1. The Court orders that: 1. The Applicant's written request dated 10 July 2023 (as amended) to vary clause 4.1(3) of Liverpool's Local Environmental Plan 2008 is upheld. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA-1122/2021, as amended, for the subdivision of land into 3 Torrens title lots, demolition of existing structures, tree removal, construction of public roads, stormwater drainage and other associated civil works on land legally described as Lot 20 in DP1228502 and known as 225 Croatia Avenue, Edmondson Park, NSW, 2174, subject to the conditions at Annexure A. T Horton Commissioner of the Court 299473.22 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: 10 August 2023