Fahda v Liverpool City Council [2025] NSWLEC 1240 | Case summary | Zoe

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Fahda v Liverpool City Council [2025] NSWLEC 1240 | Case summary | Zoe

COMMISSIONER: This appeal concerns a development application for the construction of a multi dwelling housing development containing 9 dwellings (including 1 affordable housing dwelling), pursuant to the infill affordable housing provisions in the State Environmental Planning Policy (Housing) 2021 (SEPP Housing), at 8 Lang Road, Casula. The development application was lodged with the respondent on 18 April 2024. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [0] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 February, 26 February, 10 March and 13 March 2025. I presided over the conciliation conference.
Following the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.
The agreement was subsequently submitted to the Court on 10 April 2025, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments included minor changes to the layout of the development and the correction of errors and inconsistencies in the plans. The amendments did not result in any change to the proposal’s compliance with the prevailing planning controls.
The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed Jurisdictional Statement that sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:
The development works are for the purposes of multi dwelling housing, which is a permissible use in the R3 Medium Density Residential zone in which the site is located, pursuant to the Liverpool Local Environmental Plan 2008 (LLEP).
The proposed development complies with the development standards for height and floor space ratio that apply to the site pursuant to the LLEP.
The site is mapped as containing Class 5 Acid Sulfate Soils, but the parties agreed that the proposed works are unlikely to lower the water table of adjacent Class 1-4 land by more than 1m as per cl 7.7(2) of LLEP and therefore no further consideration in this regard is required.
The development application includes minor earthworks. Based on the amended stormwater plans prepared by Enginertia Engineering Solutions (27 February 2025), I have considered the matters set out in cl 7.31(3) of the LLEP.
Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises since at least 1965, the parties consider that it is unlikely to be contaminated. Further two conditions of consent (88 and 110) have been included in Annexure A to address unexpected finds and to ensure compliance with relevant legislative requirements during construction.
Chapter 2 Pt 2 Div 1 of SEPP Housing applies to the proposed development. Based on the compliance table prepared by GAT & Associates (dated March 2025), the matters in s 19(2) have been met and I have considered the matters required to be considered by s 20. I note that the proposal does not rely on any additional FSR or height provided for under the SEPP.
Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies in respect of tree removal. The proposal is consistent with s 2.6 as consent is sought for tree removal and the impact has been found to be acceptable subject to replacement planting as required by the plans, and the agreed conditions of consent.
The site falls within the Georges River Catchment, such that Pt 6.2 of the BC SEPP applies to the development application. Based on the amended stormwater plans I am satisfied of the matters in s 6.6(2). Further, the development will not change any public access to recreational areas of waterbodies, and I am therefore satisfied of the matters in s 6.9(2).
The development application was notified between 1 and 17 May 2024 and no submissions were received.
Having reached the state 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 LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).
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 against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
The Court notes that the 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-180/2024 to incorporate the documents listed below: