Clarendon Homes (NSW) Pty Ltd v Liverpool City Council

Texts Cited: Liverpool Community Participation Plan 2019
Liverpool Development Control Plan 2008

Category: Principal judgment

Parties: Clarendon Homes (NSW) Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation: Counsel:
D LeBreton (Applicant)
J Mee (Respondent)
Solicitors:
HWL Ebsworth Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s): 2024/30134

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application No. DA-88/2023 (the DA) for the subdivision of land into four (4) Torrens title lots and construction of three (3) new exhibition homes and at-grade carpark, at Lots 102 and 103 in Deposited Plan 239526 (221 and 223 Newbridge Road, Chipping Norton) and Lot 201 in Deposited Plan 240420 (48 Nuwarra Road, Chipping Norton) (the site).

History of the DA

2. The DA was lodged by the Applicant with Liverpool City Council (the Respondent) on 27 February 2023.

3. The parties advise that the DA did not require public notification under the provisions of the Liverpool Community Participation Plan 2019. However, one submission was received in relation to the proposed development which raised concerns pertaining to traffic generation, landscaping and signage.

4. On 24 January 2024, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of the DA by the Respondent.

5. On 17 July 2024, the Court arranged a s 34 conciliation conference on site pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The parties were unable to reach an agreement at that time and the s 34 conciliation conference was terminated on that date.

6. The matter was subsequently adjourned for a Hearing on 3 December 2024.

The Hearing

7. The Hearing which I conducted commenced on 3 December 2024 with an on-site view. The submitter did not attend the on-site view.

8. During the on-site view, the parties indicated that they were attempting to reach a s 34 agreement in principle. The matter was adjourned to a s 34 conciliation conference on 3 December 2024 which I also conducted, following the on-site view.

The s 34 Conciliation Conference

9. At the conciliation conference on 3 December 2024, the parties confirmed that they had generally reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, based on the amended DA. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

10. The s 34 agreement is based on an amended DA which addresses a number of concerns raised by the Respondent. The amendments include the following:

11. Traffic: Deletion of proposed vehicle crossing off Nuwarra Road for Lot 2 and creation of an access handle to provide vehicle access for Lot 2 from Balanada Avenue; Provision of a left hand turn only exit from the carpark on Lot 1; Provision of forward in and out swept paths for dwelling homes on Lot 3 and 4 which utilise existing vehicle crossings to Newbridge Road; and

12. Built Form: Amendment of the dwelling design on Lot 2 to allow for vehicle access via access handle from Balanada Avenue.

13. A signed s 34 agreement with Annexure A and amended plans (the amended DA) as agreed between the parties were filed with the Court on 3 December 2024. Upon the filing of the s 34 agreement, the Hearing was adjourned. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites also filed by the parties on 3 December 2024.

14. 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.

15. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

16. 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 written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows below.

Jurisdictional Matters

Owner’s consent

15. The parties advise that owner’s consent for the lodgement of the DA was provided in writing by the owner of the site.

Community Participation (Sch 1, Div 2, s 7(1)) - Environmental Planning and Assessment Act 1979

16. The DA was not required to be notified (refer to para [3] above).

17. However, the parties advise that one submission was made by way of an objection which raised concerns in relation to traffic generation, landscaping and signage. The parties submit that the Court can be satisfied that the issues raised by objector, where appropriate, have been particularised in the Statement of Facts and Contentions (the SOFAC) and have been adequately addressed in the amended DA and conditions of consent.

Conditions

18. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Liverpool Local Environmental Plan 2008

19. The Liverpool Local Environmental Plan 2008 (the LEP) is the relevant local environmental planning instrument that applies to the site. Under the LEP provisions:

20. The site is zoned R3 Medium Density Residential pursuant to cl 2.2 of the LEP; and

(a) Pursuant to cl 2.3 of the LEP, the proposed development for the purposes of an exhibition village and dwelling houses is permissible with consent in the R3 zone; (b) Development for the purposes of subdivision is permissible with consent pursuant to cl 2.6 of the LEP; (c) The parties agree that the amended DA is consistent with the objectives of the R3 Zone; and (d) 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;

2. Clause 4.1 of the LEP requires that the size of any lot resulting from the subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map. Lots 102 and 103 in DP 239526 are identified as having a minimum lot size of 450m² and Lot 201 in DP240420 is identified as having a minimum lot size of 300m². The amended DA proposes 4 lots which have the following lot sizes which the parties advise satisfies the requirements of cl 4.1:

(a) Lot 1: 436.4m2 (minimum lot size 300m2); (b) Lot 2: 789.5m2 (minimum lot size 300m2/450m2); (c) Lot 3: 508.7m2 (minimum lot size 450m2); and (d) Lot 4: 450m2 (minimum lot size 450m2);

3. Pursuant to cl 4.3 of the LEP, the maximum height of buildings (HOB) on the site is 8.5 metres; and

(a) The parties advise that none of the proposed dwellings are over 8.5m high and accordingly the proposed development complies with cl 4.3;

4. Pursuant to cl 4.4 of the LEP, the maximum Floor Space Ratio (FSR) for the site is 0.5:1; and

(a) The parties advise that the proposed development has a FSR of 0.35:1, in compliance with this development standard;

5. Clause 5.10 relates to heritage conservation. The parties advise that the site is not listed as a heritage item under Sch 5 of the LEP, nor is it in proximity to any listed heritage item, and therefore the parties are satisfied that cl 5.10 of the LEP does not apply to the site;
6. Clause 5.11 relates to bushfire hazard reduction. The site is not identified to be on bushfire prone land and therefore the parties are satisfied that cl 5.11 of the LEP does not apply to the site;
7. Clause 5.21 relates to flood planning. The site is not identified to be on flood prone land and therefore the parties are satisfied that cl 5.21 of the LEP does not apply to the site;
8. Clause 7.7 of the LEP relates to Acid Sulfate Soils. The parties advise that the site is not identified on the Acid Sulfate Soils Map and therefore the parties are satisfied that cl 7.7 of the LEP does not apply to the site.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

20. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) relates to vegetation in non-rural areas. The amended DA proposes to remove trees to facilitate the proposed development. The parties advise that the matters arising under Ch 2 of the Biodiversity SEPP do not apply to the proposed development, and as such, it is not a jurisdictional requirement for the Court to consider. This is because the Applicant has not applied to remove the trees under permit, but rather seeks development consent to remove the trees under the EPA Act.

21. The parties further advise that an Arboricultural Impact Assessment Report has been prepared by Seasoned Tree Consulting to form part of the amended DA. Based on this report, the parties agree that the proposed removal of trees is consistent with local planning objectives, having regard to the replacement planting as proposed in the landscaping strategy for the site.

22. The site is identified in the Biodiversity SEPP as being within the Georges River catchment and is subject to assessment under s 6.6 of the Biodiversity SEPP, which requires that development consent must not be granted unless the consent authority is satisfied that the development ensures that the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and the impact on water flow in a natural waterbody will be minimised.

23. The parties submit that the stormwater plans prepared by the Applicant as part of the amended DA demonstrate that the quality of any water entering a natural water body from the proposed development will be neutral or beneficial, complying with s 6.6 of the Biodiversity SEPP.

State Environmental Planning Policy (Building Sustainability Index:BASIX) 2004

24. The DA was lodged on 27 February 2023 and State Environmental Planning Policy (Building Sustainability Index:BASIX) 2004 (the BASIX SEPP) applies to the proposed development.

25. The parties advise that the amended DA provides a BASIX Certificate for each proposed exhibition dwelling and therefore the consent authority can be satisfied that the proposed development complies with the BASIX SEPP and s 27 of the EPA Regulations.

State Environmental Planning Policy (Industry and Employment) 2021

26. The parties advise that the DA seeks consent for business identification signs as provided in the amended landscape plans prepared by Clarendon Homes dated 15 November 2024. Pursuant to s 3.6, of the State Environmental Planning Policy (Industry and Employment) 2001 (the Industry SEPP), the consent authority must be satisfied in accordance with s 3.1(1)(a) of the Industry SEPP and the assessment criteria in Sch 5 of the Industry SEPP.

27. The parties submit that the Applicant’s Amended Statement of Environmental Effects prepared by Local Consultancy Services Pty Ltd dated 25 November 2024 provides an assessment of Sch 5 – Assessment Criteria and conclude that the proposed signs are compatible with the desired amenity and visual character of an area and provide effective communication in suitable locations and are of high quality design and finish.

28. Accordingly, the parties agree that the Court can be satisfied the proposed development complies with s 3.1(1)(a) and Sch 5 of the Industry SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

29. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out.

30. The parties advise that:

31. Until recently the site has been occupied by dwelling houses and has historically been used for residential purposes since circa 1949;

32. The site has not been used for any land use activity listed in Table 1 of the Managing Land Contamination Guidelines in the Resilience SEPP. There is no information that would indicate that the site is contaminated, as outlined in the Amended Statement of Environmental Effects prepared by the Local Consultancy Servies Pty Ltd dated 25 November 2024;

33. A Detailed Site Investigation has been prepared by Canopy Enterprise which forms part of the amended DA. Based on these investigations, no evidence of contamination was encountered and the DSI concluded that the Site is suitable for the proposed use; and

34. The parties are satisfied that the site has not been used for any land use activity listed in Table 1 of the Managing Land Contamination Guidelines in the Resilience SEPP. The parties agree that the site is unlikely to pose a significant risk of harm to human health or the environment and that consistent with the requirements of the Resilience SEPP the site is suitable for use as an exhibition village.

35. The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

32. The site has a frontage to Newbridge Road, which is a classified road. Section 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport and Infrastructure SEPP) requires that a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that the requirements of s 2.119(2)(a)-(c) of the Transport and Infrastructure SEPP are satisfied.

33. The parties advise that in satisfaction of s 2.119 of the Transport and Infrastructure SEPP, the proposed development incorporates the following attributes:

34. access to Lot 1 and Lot 2 is provided from Balanada Avenue; and

35. access to Lot 3 and Lot 4 is provided from Newbridge Road which satisfies the requirements of s 2.119 of the Transport and Infrastructure SEPP as:

(a) no alternative vehicular access by a road other than the classified road is available; (b) vehicle access is provided on a forward in and forward out basis; (c) the existing concrete median on Newbridge Rd will restrict traffic movements left turn in and left turn out only; (d) there will an overall decrease in the number of vehicle access driveways to Newbridge Rd from 3 to 2 as a result of the proposed development as Lots 3 and 4 will use existing driveways and the current driveway to Lot 2 will no longer be used as access is provided by Balanada Avenue; and

3. the proposed development is of a type that is appropriately located and designed and includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

4. Section 2.48 of the Transport and Infrastructure SEPP requires that development carried out within 5m of an exposed overhead electricity power line requires written notice to the electricity supply authority for the area for consideration and comment. The Respondent referred to the DA Endeavour Energy on 19 July 2023. Endeavour Energy provided its response to the Respondent on 20 July 2023. Conditions and advice from Endeavor Energy is attached to the conditions of consent. The parties agree that requirements of s 2.48 of the Transport and Infrastructure SEPP have been satisfied.

Liverpool Development Control Plan 2008

35. The Liverpool Development Control Plan 2008 applies to the site; and

36. The parties advise that they have given consideration to the various provisions of the Liverpool Development Control Plan 2008 (the DCP) and are satisfied that the amended DA either complies with the relevant controls in the DCP or that sufficient justification has been provided in relation to any non-compliance.

Conclusion

36. Having considered the advice of the parties provided above at [15]-[35], I am satisfied that:

37. The Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

38. 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

39. Approval of the proposed development is in the public interest.

40. 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.

41. 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.

42. The Court notes:

43. That Liverpool City Council, as the consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application DA-88/2023 made on 3 December 2024 to rely on the documents and plans specified below (the amended development application):

(a) Architectural Plans prepared by Clarendon Homes:

(i) Drawing No. DA-000, Index Sheet, issue L dated 3 December 2024; (ii) Drawing No. DA-005, Post Demolition Survey, issue L dated 3 December 2024; (iii) Drawing No. DA-010, Existing Sub-Division Plan, issue L dated 3 December 2024; (iv) Drawing No. DA-011, Proposed Sub-Division Plan, issue L dated 3 December 2024; (v) Drawing No. DA-020, Master Site Plan and Setback Compliance, issue L dated 3 December 2024; (vi) Drawing No. DA-021, Design Levels Plan and Swept Path Plan, issue L dated 3 December 2024; (vii) Drawing No. DA-022, Site Analysis Plan, issue L dated 3 December 2024; (viii) Drawing No. DA-023, Construction Management Plan, issue L dated 3 December 2024; (ix) Drawing No. DA-024, Post Display - Front Landscape, POS and Fence, issue L dated 3 December 2024; (x) Drawing No. DA-025, Excavation Plan, issue L dated 3 December 2024; (xi) Drawing No. DA-030, Shadow Diagram 9.00am 22 June, issue L dated 3 December 2024; (xii) Drawing No. DA-031, Shadow Diagram Noon 22 June, issue L dated 3 December 2024; (xiii) Drawing No. DA-032, Shadow Diagram 3.00pm 22 June, issue L dated 3 December 2024; (xiv) Drawing No. DA-040, Streetscape Elevations, issue L dated 3 December 2024; (xv) Drawing No. DA-050, Carpark - Site Plan - Lot 1, issue L dated 3 December 2024; (xvi) Drawing No. DA-060, Exhibition Home 1 - Site Plan - Lot 2, issue L dated 3 December 2024; (xvii) Drawing No. DA-061, EH 1 - Ground Floor Plan, issue L dated 3 December2024; (xviii) Drawing No. DA-062, EH 1 - First Floor Plan, issue L dated 3 December 2024; (xix) Drawing No. DA-063, EH 1 - Elevations 1 & 2, issue L dated 3 December 2024; (xx) Drawing No. DA-064, EH 1 - Elevations 3 & 4, issue L dated 3 December 2024; (xxi) Drawing No. DA-065, EH 1 - Section A-A / Acoustic Notation, issue L dated 3 December 2024; (xxii) Drawing No. DA-066, EH 1 - Notification Plan, issue L dated 3 December 2024; (xxiii) Drawing No. DA-067, EH 1 - BASIX Commitments, issue L dated 3 December 2024; (xxiv) Drawing No. DA-068, EH 1 - Floor Space Ration Plan, issue L dated 3 December 2024; (xxv) Drawing No. DA-069, EH 1 - Gross Floor Area Plan, issue L dated 3 December 2024; (xxvi) Drawing No. DA-070, Exhibition Home 2 - Site Plan - Lot 3, issue L dated 3 December 2024; (xxvii) Drawing No. DA-071, EH 2 - Ground Floor Plan, issue L dated 3 December 2024; (xxviii) Drawing No. DA-072, EH 2 - First Floor Plan, issue L dated 3 December 2024; (xxix) Drawing No. DA-073, EH 2 - Elevations 1 & 2, issue L dated 3 December 2024; (xxx) Drawing No. DA-074, EH 2 - Elevations 3 & 4, issue L dated 3 December 2024; (xxxi) Drawing No. DA-075, EH 2 - Section A-A / Acoustic Notation, issue L dated 3 December 2024; (xxxii) Drawing No. DA-076, EH 2 - Notification Plan, issue L dated 3 December 2024; (xxxiii) Drawing No. DA-077, EH 2 - BASIX Commitments, issue L dated 3 December 2024; (xxxiv) Drawing No. DA-078, EH 2 - Floor Space Ration Plan, issue L dated 3 December 2024; (xxxv) Drawing No. DA-079, EH 2 - Gross Floor Area Plan, issue L dated 3 December 2024; (xxxvi) Drawing No. DA-080, Exhibition Home 3 - Site Plan - Lot 4, issue L dated 3 December 2024; (xxxvii) Drawing No. DA-081, EH 3 - Ground Floor Plan, issue L dated 3 December 2024; (xxxviii) Drawing No. DA-082, EH 3 - First Floor Plan, issue L dated 3 December 2024; (xxxix) Drawing No. DA-083, EH 3 - Elevations 1 & 2, issue L dated 3 December 2024; (xl) Drawing No. DA-084, EH 3 - Elevations 3 & 4, issue L dated 3 December 2024; (xli) Drawing No. DA-085, EH 3 - Section A-A / Acoustic Notation, issue L dated 3 December 2024; (xlii) Drawing No. DA-086, EH 3 - Notification Plan, issue L dated 3 December 2024; (xliii) Drawing No. DA-087, EH 3 - BASIX Commitments, issue L dated 3 December 2024; (xliv) Drawing No. DA-088, EH 3 - Floor Space Ration Plan, issue L dated 3 December 2024; (xlv) Drawing No. DA-089, EH 3 - Gross Floor Area Plan, issue L dated 3 December 2024;

(b) Landscape Plans prepared by Clarendon Homes:

(i) Drawing No. LP-01, Landscape Master Plan, revision F dated 3 December 2024; (ii) Drawing No. LP-02, Signage Plan, revision G dated 3 December 2024; (iii) Drawing No. LP-03, Landscape Master Plan - Post Display, revision F dated 3 December 2024; (iv) Drawing No. LP-04 & LP-05, Exhibition Home 1 - Landscape Plans, revision F dated 3 December 2024; (v) Drawing No. LP-06 & LP-07, Exhibition Home 2 - Landscape Plans, revision F dated 3 December 2024; (vi) Drawing No. LP-08 & LP-09, Exhibition Home 3 - Landscape Plans, revision F dated 3 December 2024;

2. Amended Statement of Environmental Effect prepared by The Local Group dated November 2024;

3. Detailed Site Investigation prepared by Canopy Enterprise dated May 2024;

4. Arboricultural Impact Assessment Report prepared by Seasoned Tree Consulting dated 4 April 2024;

5. Waste Management Plan (Proposed Lot 2) prepared by Clarendon Homes dated 13 May 2024;

6. Waste Management Plan (Proposed Lot 3) prepared by Clarendon Homes dated 13 May 2024;

7. Waste Management Plan (Proposed Lot 4) prepared by Clarendon Homes dated 13 May 2024;

8. BASIX Certificate No. 1773459S_02 prepared by Energi Therman Assessors Pty Ltd dated 2 December 2024;

9. BASIX Certificate No. 1745949S_02 prepared by Energi Therman Assessors Pty Ltd dated 18 December 2024; and

10. BASIX Certificate No. 1358759S_04 prepared by Energi Therman Assessors Pty Ltd dated 2 December 2024.

11. The Court orders:

12. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, as agreed or assessed, such amount to be paid within 28 days of the date of this order.

13. The appeal is upheld.

14. Development Application No DA-88/2023 as amended for the subdivision of land into four Torrens title lots, construction of three new dwelling houses, tree removal and an at-grade carpark for use as an exhibition village for a period of five years at Lot 102 and Lot 103 in Deposited Plan 239526 (known as 221 and 223 Newbridge Road, Chipping Norton) and Lot 201 in Deposited Plan 240420 (known a 48 Nuwarra Road, Chipping Norton)is determined by the grant of development consent, subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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