Land and Environment Court New South Wales Medium Neutral Citation: Limousin No.1 Estate Pty Ltd v Liverpool City Council [2019] NSWLEC 1192 Hearing dates: 10-11 January, 24 April 2019 and conciliation conference 24 April 2019 Date of orders: 01 May 2019 Decision date: 01 May 2019 Jurisdiction: Class 1 Before: Horton C Decision: Orders at [13] Catchwords: DEVELOPMENT APPEAL: against refusal of subdivision – site contamination – certainty of remediation – agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environment Planning Policy No.55 – Remediation of Land State Environmental Planning Policy (Sydney Region Growth Centre) 2006 Texts Cited: Liverpool City Council Growth Centre Precincts Development Control Plan 2008 Managing Land Contamination planning guidelines: SEPP 55 – Remediation of Land Category: Principal judgment Parties: Limousin No.1 Estate Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: H White (Applicant) S Berveling (Respondent) Solicitors: Project Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2017/251058 Publication restriction: No Judgment 1. This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) relating to the refusal of an application for the demolition of existing structures and subdivision of four (4) existing allotments into one hundred and nine Torrens title residential lots, and associated earthworks, drainage and construction of roads, pursuant to Development Application No. DA-1023/2016 (DA). 2. The matter was initially listed before me for hearing on 10-11 January 2019. Prior to the hearing, I attended a view of the site and I had the opportunity to consider two written submissions that were received prior to the hearing. The owner of an adjoining property, represented in one of the written submissions, also addressed the Court at the on site view. The neighbour's primary concern relates to changes made to the street design and layout from that shown in the Austral and Leppington Indicative Layout Plan. 3. At the commencement of the hearing, the Applicant sought leave to rely on further amended plans that was not opposed, and which consisted of the following changes; * Deletion of Lot 93 * Reorientation of Lots 19-22, and 91-92 * Revised traffic arrangements at in the intersection of the proposed Jonica Rd and Fourteenth avenue 1. Arising from the evidence given at the hearing, on 11 January 2019 I granted the parties an adjournment to allow for further site investigation. 2. At the recommencement of the hearing on 24 April 2019, the parties advised the Court that in the intervening period, the legal description of the site had changed by reference to the description of the deposited plan in the original application, and the Lot numbers. Evidence was provided by the parties showing the correct reference to the deposited plan, lot numbers and to confirm the identity of the site's owners in relation to the lots. 3. On the application of the parties, the hearing was further adjourned and the matter was reallocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference between the parties, which was held on 24 April 2019. I presided over the conciliation conference. 4. At 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 conditional development consent to the development application. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 24 April 2019. 5. The parties ask me to approve their decision as 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. 6. 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. There are jurisdictional prerequisites contained in the provisions of the State Environmental Planning Policy (Sydney Growth Centres) 2006 (Growth Centres SEPP), including the Liverpool Growth Centres Precinct Plan, found at Appendix 8 that must be satisfied before this function can be exercised. 7. The parties explained to me during the conference as to how the requirements of the Growth Centres SEPP have been satisfied in order to allow the Court to make orders that give effect to the parties' agreement. I am satisfied that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons: 1. The land to which the development application relates is within the R2 zone – Low Density Residential under the provisions of the Liverpool Growth Centres Precinct Plan, and development for the purposes of 'roads' is permitted with consent according to the relevant Land Use. 2. I am satisfied that adequate arrangements have been made for the public utility infrastructure that is essential for the proposed development to be available when required, pursuant to clause 6.1 of the Liverpool Growth Centres Precinct Plan. 3. Clause 7 of State Environment Planning Policy No.55 – Remediation of Land (SEPP 55) requires a consent authority to consider the contamination and remediation of land when determining a development application. The proposed development involves a change of use of a kind specified in clause 7 (4) of SEPP 55. 4. Clause 7 (2) of SEPP 55 requires that a consent authority, before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. 5. The "contaminated land planning guidelines", described in cl.7 (4)(b) are defined in clause 4(1) of SEPP 55 to mean guidelines referred to in Schedule 6, Clause 3 the EPA Act. The relevant planning guidelines are the "Managing Land Contamination planning guidelines: SEPP 55 – Remediation of Land", NSW, 1998. 6. Table 1 of the contaminated land planning guidelines list some activities that may cause contamination of land, and includes "agricultural/horticultural activities" which is identified by preliminary site investigation as a potential previous use of the land. Accordingly clause 7(4) of SEPP 55 applies. 7. The controls relevant to Site Contamination are found in clause 2.3.7 of the Liverpool City Council Growth Centre Precincts Development Control Plan (LDCP), and provide for the preparation of Stage 1 Preliminary Site Investigations, Stage 2 Detailed Site Investigations and Remedial Action Plans (RAPs). 8. I have read the following reports provided by the applicant and I am satisfied that the land will be remediated before the land is used for the purpose for which the development is proposed to be carried out: * Combined Stage 1 Preliminary Site Investigation & Stage 2 Detailed Site Investigation dated 18 March 2019 and prepared by Alliance Geotechnical Pty Ltd * Remedial action Plan dated 14 March 2019 and prepared by Alliance Geotechnical Pty Ltd * Interim Audit Advice dated 19 March 2019 and prepared by Senversa Pty Ltd 1. Having formed an opinion of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application. 3. The Court orders that: 1. The Applicant is granted leave to rely upon the following amended documentation: DESCRIPTION REFERENCE REV DATE PREPARED BY Combined Stage 1 Preliminary Site Investigation & Stage 2 Detailed Site Investigation 8512-ER-1-1 C 18 March 2019 Alliance Geotechnical Pty Ltd Remedial Action Plan 8512-ER-1-2 C 14 March 2019 Alliance Geotechnical Pty Ltd Interim Audit Advice 19 March 2019 Senversa Pty Ltd 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed at $5,000. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. 1023/2016 seeking consent for the demolition of existing structures and subdivision of 4 existing allotments into 92 Torrens title residential lots, and associated construction of roads, earthworks and drainage works on the land at 284 - 300 Fifteenth Avenue and 45 and 55 Fourteenth Avenue, Austral subject to the conditions of consent annexed hereto and marked "A". ………………………. Timothy Horton 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: 01 May 2019