appellant. The appeal was upheld and development consent was granted to Development Application DA-519/2019, as amended, subject to conditions at Annexure A.
Key principles
Under s 34(3) of the Land and Environment Court Act 1979, the Court must dispose of proceedings in accordance with the parties' decision if that decision is one the Court could...
The Court is not required to, and did not, make any merit assessment of the issues originally in dispute between the parties when making orders to give effect to a s 34 agreement.
The jurisdictional prerequisites for exercising the function under s 4.16 of the Environmental Planning and Assessment Act 1979 must be satisfied before the Court can dispose of...
For the purposes of s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, a development application that was lodged but not 'fully determined'...
Issues before the court
Whether the Court could dispose of the proceedings in accordance with the s 34 agreement between the parties under s 34(3) of the Land and...
Whether former Ch 9 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applied to the development application
Plain English Summary
This case involved a developer's appeal against a council's refusal of a subdivision application. Instead of proceeding to a contested hearing, the parties reached an agreement through the Court's conciliation process. The Court approved this agreement and granted development consent without conducting its own assessment of the merits, because the law requires the Court to give effect to such agreements if they are within the Court's power. The decision also clarified that older environmental planning rules continued to apply because the application was still being decided when new rules came into effect.
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Judgment (15 paragraphs)
[1]
Judgment
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA-519/2019 (the DA) for the demolition of existing structures, dam dewatering, subdivision of existing allotment into a Torrens title subdivision of 31 residential lots and 2 residue lots and construction of roads and associated civil works at 181 Gurner Avenue, Austral 2179, legally known as Lot 3 DP233174 (the site).
Cited legislation
No linked legislation citations have been extracted yet.
The DA was lodged with the Respondent on 16 August 2019. On 3 August 2023, the Applicant filed the appeal with the Court.
A conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) was convened between the parties by the Court on 14 February 2024. I presided over this s 34 conciliation conference, which commenced with an on-site view. A submission was made by Ms K Littlejohn of the National Parks and Wildlife Service (NPWS) at the on-site view raising concerns as outlined in the NPWS written submission on the DA, primarily relating to mitigation of impacts on the nature reserve adjoining the site.
On 3 July 2024, the s 34 conference was terminated as a number of issues remained outstanding and had not been able to be resolved. A hearing was set down for 18 November 2024.
On 15 November 2024, the parties advised the Court that they had reached an in principle s 34 agreement. The s 34 agreement was filed with the Court on 15 November 2024. On this basis, the on-site view listed for 18 November 2024 was vacated.
At the request of the parties, the Court then made an order on 18 November 2024 adjourning the matter for a s 34 conciliation conference. I presided over the conciliation conference, held on 18 November 2024. At the request of the parties the on-site view was vacated, as the site had been viewed at the original s 34 conciliation conference and the parties had been heard at the on-site view on 14 February 2024.
A signed s 34 agreement with Annexure A was filed with the Court on 15 November 2024, with further amended plans and additional material (the amended DA) as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.
Amendments to the proposed development include:
1. The stormwater management plan for the site changed to remove the proposed run-off to an overflow basin on the adjoining NPWS land and to detain water in the western part of the site;
2. The proposed undersized lot has been increased in area to comply with the minimum subdivision lot size of 225m2; and
3. NSW Rural Fire Services (RFS) approval has been obtained to the construction of a fire-proof fence on the western boundary of the site (adjoining grassland).
The Respondent considers that the amended DA satisfactorily responds to the relevant matters raised by the objector (NPWS).
The parties agreed the proceedings be disposed of by the Court in accordance with the s 34 agreement between the parties made under s 34(3) of the Land and Environment Court Act 1979 (LEC Act). The hearing was adjourned and the matter was reallocated to me as a s 34 conciliation conference.
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. 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.
The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act. This decision involved the Court upholding the appeal and granting development consent to the DA subject to conditions.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a jurisdictional note accompanying the s 34 agreement, and those requirements have been satisfied as follows:
[2]
Owner's Consent
The parties advise that owner's consent by the registered proprietor of the lot comprising the site accompanied the DA.
[3]
Public Participation (Sch 1, Div 2, s 7(1) of the EPA Act)
The parties advise that the DA was notified by the Respondent between 17 September 2019 and 1 October 2019. One submission from NPWS was received in response to that notification.
Renotification of the amended DA was not undertaken as the amended proposal was referred to NPWS and RFS for their comments.
[4]
Conditions
The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.
[5]
Integrated Development
The DA is integrated development within the meaning of s 4.46 of the EPA Act as part of the site is identified as bushfire prone.
The parties advise that the site includes areas identified as Vegetation Category 3 and Vegetation Buffer on the Bushfire Prone Lands Map, and that a performance based bushfire hazard assessment by Harris Environmental Consulting dated 22 April 2024 has been submitted as part of the amended DA.
The DA was referred to the RFS pursuant to s 100B of the Rural Fires Act 1987 (RF Act).
The parties advise that the amended DA was referred to the RFS who provided General Terms of Approval (GTA's) on 27 June 2024.
There is an existing dam on the site. The parties advise that the amended DA was referred to the NSW Office of Water in relation to the dewatering of the dam.
[6]
State Environmental Planning Policy (Precincts - Sydney Region Growth Centres) 2006
The State Environmental Planning Policy (Precincts - Sydney Region Growth Centres) 2006 (the Growth Centre SEPP) is the relevant environmental planning instrument that applies to the site. Appendix 8 (Liverpool Growth Centres Precinct Plan) (the Precinct Plan) of the Growth Centres SEPP applies to the site; and
1. the subject site is zoned R2 - Low Density Residential under cl 2.2 of the Precinct Plan;
2. subdivision works are permissible with consent under cl 2.6 of the Precinct Plan;
3. Development for the purposes of demolition is permissible with consent pursuant to cl 2.7 of the Growth Centres SEPP;
4. Clause 2.3(2) of the Precinct Plan requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out;
5. In relation to minimum lot size and residential density on the site under the Precinct Plan, the parties advise that:
1. clause 4.1AB (Minimum lot size for residential development) does not apply as no dwelling houses are proposed as part of the DA; and
2. clause 4.1B (Residential density) applies to the site and prescribes a minimum dwelling density of 23 dwellings for the site. The amended DA proposes a subdivision of land for 31 residential lots and two residual lots, meeting the requirement under cl 4.1B.
1. Clause 6.1 (Public utility infrastructure) of the Precinct Plan applies to the site. The parties advise that:
1. Pursuant to cl 6.1(2)(a) the applicant has received confirmation from Sydney Water that the requisite supply of water infrastructure will be available via a water main present on Gurner Avenue;
2. Pursuant to cl 6.1(2)(b) the applicant has confirmed with Endeavour Energy that the requisite supply of electrical infrastructure will be available; and
3. Pursuant to cl 6.1(2)(c) the parties have received confirmation from Sydney Water that the requisite supply of sewerage infrastructure will be available within the life of the development consent.
[7]
Biodiversity Conservation Act 2016
The parties advise that the land received Biodiversity Certification on 14 December 2007 and as no clearing of existing native vegetation is proposed, further consideration under the Biodiversity Conservation Act 2016 (BC Act) is not required.
[8]
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments Amendment SEPP) commenced on 21 November 2022 and served to repeal the previous Chs 6 to 12 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) and insert a new Ch 6 (Water Catchments).
Section 6.65 of the Biodiversity SEPP provides that the former Chapters continue to apply to a development application which was lodged, but not fully determined, before the commencement of the Water Catchments Amendment SEPP.
The DA was lodged on 16 August 2019, prior to the commencement of the Water Catchments Amendment SEPP. The DA was refused by the Respondent, however, has not been finally determined by the Court.
In CK Design v Penrith City Council (No 2) [2022] NSWLEC 97 Robson J found at [50] that
"[50] In summary, while I accept that the plain meaning of a word is an important consideration, the question of construction cannot be resolved merely by resorting to the literal meaning of words because words always exist and take meaning from their statutory context (Sydney Seaplanes at [41]); and I consider that adopting a strictly literal approach (construing "determined" as confined to the determination of the consent authority) would not conform to the intent of the legislature and would, in my view, likely result in capricious outcomes (possibly similar to the matters considered by Talbot J in Bardetta at [22]), and, moreover, simply does not reflect the context that a decision of a consent authority, when an appeal is lodged, is not, in reality, the end of the matter."
Accordingly, former Ch 9 (Hawkesbury-Nepean River) of the Biodiversity and Conservation SEPP applies to the proposed development. The parties have confirmed that as the DA was lodged with the Respondent on 16 August 2019, the repealed provisions of Ch 9 of the Biodiversity SEPP apply to the DA.
The parties advise that:
1. the proposed development does not cause water to enter a waterway or natural waterbody; and
2. The Respondent has taken into consideration the general planning considerations in s 9.4 and the specific planning policies and related recommended strategies s 9.5 of the Biodiversity SEPP which are applicable to the proposed development and is satisfied having regard to such considerations that the development should be approved.
[9]
State Environmental Planning Policy (Resilience and Hazards) 2021
In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), s 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise, and I am satisfied that:
1. the Amended DA is accompanied by a detailed Environmental and Salinity Site Assessment prepared by Broadcrest Consulting which concluded that the site is considered suitable for the proposed residential subdivision;
2. Section 2.3.7 of the Liverpool Growth Centres Precincts Development Control Plan requires a Stage 1 Preliminary Site Investigation report for all subdivisions for residential purposes; and
3. The Court can be satisfied that the site is suitable for its proposed use.
[10]
Liverpool Growth Centres Development Control Plan 2021
The parties advise that the amended DA satisfactorily addresses the provisions of the DCP that were raised in the SOFAC.
[11]
Conclusion
Having considered the advice of the parties provided above at [14]-[35], I am satisfied that:
1. the applicants' Further Amended DA can be approved having regard to the matters in s 4.15(1)(b) - (e) of the EPA Act;
2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and
3. approval of the proposed development is in the public interest.
Further, 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.
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.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.
The Court notes that:
1. Liverpool City Council, as the relevant consent authority, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, has approved the application for an amendment to development application DA-519/2019 made on 15 November 2024 to rely on the documents specified below:
SITE PLANS by Planzone Design
1.1 Revision 20 Cover Page 15/05/2024
1.2 Revision 20 Site Analysis 15/05/2024
1.3 Revision 20 Site Analysis 15/05/2024
1.4 Revision 20 Existing Site Plan 15/05/2024
1.5 Revision 20 Demolition Plan 15/05/2024
1.6 Revision 20 Subdivision Plan-Stage 1 15/05/2024
1.7 Revision 20 Subdivision Plan Stage 1, Survey overlay 15/05/2024
1.8 Revision 20 Stage 2 Demolition Plan 15/05/2024
1.9 Revision 20 Subdivision Plan Stage 2 15/05/2024
1.10 Revision 20 Subdivision Plan Stage 2, Survey overlay 15/05/2024
1.11 Revision 20 Tree Planting Schedule 15/05/2024
1.12 Revision 20 Car Parking Design 15/05/2024
1.13 Revision 20 Public Domain Plan 15/05/2024
1.14 Revision 20 Building Envelope Plan 15/05/2024
1.15 Revision 20 Proposed BEP Lots 1-3 15/05/2024
1.16 Revision 20 Proposed BEP Lots 5-7 15/05/2024
1.17 Revision 20 Proposed BEP Lots 7, 8, 10 15/05/2024
1.18 Revision 20 Proposed BEP Lots 11-13 15/05/2024
1.19 Revision 20 Proposed BEP Lots 13, 14, 16 15/05/2024
1.20 Revision 20 Proposed BEP Lots 17, 19, 20 15/05/2024
1.21 Revision 20 Proposed BEP Lots 20-22 15/05/2024
1.22 Revision 20 Proposed BEP Lots 25-27 15/05/2024
1.23 Revision 20 Proposed BEP Lots 28-30 15/05/2024
1.24 Revision 20 Shadow Study Lots 1-3 15/05/2024
1.25 Revision 20 Shadow Study Lots 1-3 15/05/2024
1.26 Revision 20 Shadow Study Lots 5-10 15/05/2024
1.27 Revision 20 Shadow Study Lots 5-10 15/05/2024
1.28 Revision 20 Shadow Study Lots 11-16 15/05/2024
1.29 Revision 20 Shadow Study Lots 11-16 15/05/2024
1.30 Revision 20 Shadow Study Lots 17-23 15/05/2024
1.31 Revision 20 Shadow Study Lots 17-23 15/05/2024
1.32 Revision 20 Shadow Study Lots 25-30 15/05/2024
1.33 Revision 20 Shadow Study Lots 25-30 15/05/2024
1.35 Revision 20 Net Developable Area Plan 15/05/2024
1.36 Revision 20 BAL Plan 15/05/2024
1.37 Revision 20 APZ Plan 15/05/2024
[12]
CIVIL PLANS by Smart Structures Australia
C000 Revision F Cover Sheet 19/06/2023
C001 Revision C General Notes 09/10/2020
C002 Revision I General Arrangement Plan 15/03/2024
C003 Revision F Typical Road Cross Section 19/06/2023
C005 Revision J Civil Works Layout Plan - Sheet 1 19/04/2024
C006 Revision L Civil Works Layout Plan - Sheet 2 18/10/2024
C007 Revision O Civil Works Layout Plan - Sheet 3 18/10/2024
C010 Revision E Road Longitudinal Sections-Sheet 1 08/03/2024
C011 Revision E Road Longitudinal Sections-Sheet 2 08/03/2024
C020 Revision F Bulk Earthworks Cut/Fill Plan 08/03/2024
C021 Revision E Bulk Earthworks Sections-Sheet 1 08/03/2024
C022 Revision E Bulk Earthworks Sections-Sheet 2 08/03/2024
C030 Revision F Drainage Longitudinal Sections-Sheet 1 08/03/2024
C031 Revision F Drainage Longitudinal Sections-Sheet 2 08/03/2024
C032 Revision F Drainage Longitudinal Sections-Sheet 3 08/03/2024
C033 Revision F Drainage Longitudinal Sections-Sheet 4 08/03/2024
C034 Revision F Drainage Longitudinal Sections-Sheet 5 08/03/2024
C035 Revision F Drainage Longitudinal Sections-Sheet 6 08/03/2024
C036 Revision G Catchment Plan 08/03/2024
C037 Revision E Temporary Stormwater Basin Plan 19/04/2024
C038 Revision F Construction Standard Details 08/03/2024
C050 Revision E Erosion and Sediment Control Plan 06/10/2022
C051 Revision C Erosion and Sediment Control Details 09/10/2000
C065 Revision A Interim Silt Trap Details
[13]
FLOOD REPORT by MBR Consulting Engineers dated 20/03/2024
PERFORMANCE BASED BUSHFIRE HAZARD ASSESSMENT by Harris Environmental Consulting dated 22/04/2024
FEASIBILITY LETTER from Sydney Water dated 16/11/2023
GENERAL TERMS OF APPROVAL by NSW Rural Service dated 27 June 2024
[14]
(referred to as "the amended DA").
1. On 15 November 2024 the Applicant filed with the Court a copy of the amended DA.
The Court orders that:
1. The appeal is upheld.
2. Development consent is granted to Development Application DA-519/2019, as amended, for demolition of existing structures, dam dewatering, subdivision of the existing allotment and construction of roads, and associated civil works at 181 Gurner Avenue, Austral 2179, legally known as Lot 3 DP233174, subject to the conditions at Annexure A.
[15]
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: 07 February 2025