Land and Environment Court New South Wales Medium Neutral Citation: Concretive Leppington 2 Pty Ltd ATF Concretive Leppington 2 Unit Trust v Liverpool City Council [2024] NSWLEC 1659 Hearing dates: Conciliation conference on 19 September 2024 Date of orders: 18 October 2024 Decision date: 18 October 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The appeal is upheld. (2) Development Application DA-164/2024 for the subdivision of 1 'super lot' into 20 Torrens title lots and associated earthworks and stormwater works at 1310 Camden Valley Way and 465 Denham Court Road Leppington is determined by a grant of consent subject to conditions contained in Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – Torrens title subdivision – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act, s 34 Rural Fires Act 1997, s 100B Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4 ss 1.3, 2.1, 2.6, 4.1AA, 4.1AB, 6.1 Texts Cited: Liverpool City Council, Community Engagement Strategy 2022 Category: Principal judgment Parties: Concretive Leppington 2 Pty Ltd ATF Concretive Leppington 2 Unit Trust (Applicant) Liverpool City Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) J Garcia (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Liverpool City Council (Respondent) File Number(s): 2024/243289 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Liverpool City Council, of DA-164/2024 which seeks consent for the subdivision of one super lot into twenty Torrens title lots, including earthworks and stormwater works at 465 Denham Court Road and 1310 Camden Valley Way, respectively Lot B of DP 28997 and Lot 10 of DP 1020864. 2. The site benefits from an existing development consent, DA-1070/2020, which granted consent for the Torrens title subdivision of the land into 32 residential lots and 1 temporary detention basin, and the construction of the surrounding roads and infrastructure servicing the site. 3. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The Court arranged a conciliation conference and hearing under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 September 2024. I presided over the conciliation conference. 5. After the conciliation conference, on 27 September 2024, the parties reached agreement acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 6. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments included: 1. The provision of a dedicated 'Public Domain Plan' 2. The provision of a Remediation Action Plan (RAP) to satisfy the requirements of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) (Resilience and Hazards SEPP). 3. The provision of indicative building envelope plans, solar access diagrams, and additional site servicing information. 1. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that 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, which the parties identified in a jurisdictional note. From this I note the following points. Jurisdictional matters 1. The development application was made with the written consent of the owner of the land. 2. The application was adequately notified in accordance with the Liverpool City Council Community Engagement Strategy 2022 from 9 May 2024 for 16 days. Two submissions were received. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. Rural Fires Act 1997 1. The development is integrated development under Pt 4 Div 4.8 of the EPA Act, and requires a Bushfire Safety Authority from the NSW Rural Fire Service (RFS) pursuant to s 100B of the Rural Fires Act 1997. The RFS issued General Terms of Approval pursuant to s 100B on 27 May 2024, which have been incorporated into the agreed conditions of consent at Annexure A. State Environmental Planning Policy (Resilience and Hazards) 2021 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties' submission, the Remedial Action Plan (RAP) by Geotesta from the parent consent DA-1070/2020, dated 12 May 2022, and the review of this RAP by Geosyntec Consultants dated 13 May 2022, I accept that there remediation works are currently occurring on site to satisfy conditions of consent from the parent consent and that on this basis, the site can be made suitable for the intended residential use. State Environmental Planning Policy (Precincts – Western Parkland City) 2021 1. On the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (SEPP WPC) Land Application Map, the site is located within the Austral Precinct and subsequently, pursuant to Appendix 4 s 1.3 of the SEPP WPC, the development is subject to the provisions of Appendix 4 – Liverpool Growth Centres Precinct Plan (the Precinct Plan). 2. Pursuant to s 2.1 of the Precinct Plan, the subject site is zoned R3 Medium Density Residential. The proposed development is consistent with the objectives of this zone. 3. Subdivision is permitted with consent pursuant to s 2.6 of the Precinct Plan. 4. Pursuant to s 4.1AA of the precinct plan, in order for development consent to be granted for subdivision of lots between 225-300m2, the consent authority must be satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot. To demonstrate this, the applicant has provided building envelope plans for the five lots that are between 225-300m2 in area. These plans adequately demonstrate that the requirements of s 4.1AA can be met with this development on the relevant lots. 5. The remaining lots have a site area greater than 300m2, which meets the density value identified on the Residential Density Map, pursuant to s 4.1AB. 6. The site is not located within a heritage conservation area, and is neither contained nor adjacent to a heritage item. 7. Pursuant to s 6.1, from the parties' submission and the information provided by Qalchek, dated 16 August 2024, I accept that the 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. Conclusion 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, and that subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court notes: 1. Liverpool City Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application DA-164/2024 to incorporate the documents listed below: Drawing Title Sheet No. Rev Date Prepared by Building Envelope Plans Building Envelope Plans - Sheet 1 P00673-BEP-001 A 13/06/24 Group Development Services Building Envelope Plans - Sheet 2 P00673-BEP-002 A 13/06/24 Group Development Services Building Envelope Plans - Sheet 3 P00673-BEP-003 A 13/06/24 Group Development Services Public Domain Plans Public Domain Plan P00673-CI-DA-1701 A 08/03/24 Group Development Services Shadow Diagrams Shadow Diagram – Winter Solstice 9AM A1104 A 10/08/24 Arkexpress Architects Shadow Diagram – Winter Solstice 10AM A1105 A 10/08/24 Arkexpress Architects Shadow Diagram – Winter Solstice 11AM A1106 A 10/08/24 Arkexpress Architects Shadow Diagram – Winter Solstice 12PM A1107 A 10/08/24 Arkexpress Architects Shadow Diagram – Winter Solstice 1PM A1108 A 10/08/24 Arkexpress Architects Shadow Diagram – Winter Solstice 2PM A1109 A 10/08/24 Arkexpress Architects Shadow Diagram – Winter Solstice 3PM A1110 A 10/08/24 Arkexpress Architects 1. The Court orders: 1. The appeal is upheld. 2. Development Application DA-164/2024 for the subdivision of 1 'super lot' into 20 Torrens title lots and associated earthworks and stormwater works at 1310 Camden Valley Way and 465 Denham Court Road Leppington is determined by a grant of consent subject to conditions contained in Annexure A. E Washington 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: 23 October 2024