COMMISSIONER: This is an appeal against Liverpool City Council's (Council) deemed refusal of Modification Application No. DA-966/2020/A (Modification) lodged with Council on 12 July 2022, which seeks approval for the modification of Development Consent No. DA-966/2020 (DC), specifically in relation to reducing the number of approved lots from 16 to 14, amend the road and subdivision layout, amend the stormwater infrastructure and lower the retaining walls to an approved commercial development at 140 Gurner Avenue, Austral NSW 2179 being the whole of the land in FI 17/1210621 (Site).
1. The proceedings have been brought pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) as the Modification is a deemed refusal by the Council. The filing of the Class 1 application complies with:
1. The time provisions in s 8.10 of the EPA Act, and
2. The deemed refusal time provisions in s 8.11 of the EPA Act, and s 119(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).
1. The proceedings fall under Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
2. The statutory power or function to be exercised in determining the proceedings is s 4.55(2) of the EPA Act and s 34(3)(a) and (b) of the LEC Act.
The Site is located on the southern side of Gurner Avenue, Austral, between Gurner Avenue and Fifteenth Avenue, and is approximately 40,390m2. It has a frontage of approximately 100m to Gurner Avenue and a depth of approximately 400m on the eastern and western boundaries.
Gurner Ave Industrial Pty Ltd v Liverpool City Council [2023] NSWLEC 1130 | Case summary | Zoe
The Site is zoned IN2 Light Industrial under the State Environmental Planning Policy (Precincts - Western Parkland City) 2021 (Precincts SEPP), and is affected by easements for services, drainage of water, right of access and transmission line. (Council's Statement of Facts and Contentions filed 27.09.22 p3 (SOFAC)).
The Site is located on the fringe of an IN2 Light Industrial zone, and adjoins an R2 Low Density Residential zone to the north and east. Approximately 300m to the east, along Gurner Avenue, is a B1 zoned site which will contain a small local centre, and an SP2 zoned site which will contain an Educational Establishment. (SOFAC p 4).
Figure 1 below is an aerial photograph of the Site, with the Site shaded yellow (SOFAC p 4).
Below is an extract from the SOFAC p 2 showing Figure A on the left hand side being the approved subdivision under the DC, and Figure B on the right hand side being the Modification (prior to the amendments arising during the s 34 Conciliation Conference).
Figure A Figure B
The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 8 November 2022, 22 November 2022, 14 December 2022, 1 February 2023 and 8 February 2023. I presided over the conciliation conference.
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 court noting that Council, as the relevant consent authority, agreed under s 113(1) of the EPA Regulation to the Applicant amending its Modification to incorporate the plans, drawings and documents listed in Appendix 1, amendments to conditions in Appendix 2, and the conditions of consent in Annexure A.
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. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to approve the Modification. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied as set out below:
1. The key changes made to the Modification Application include (but are not limited to):
1. The inclusion of proposed section 88B instruments under the Conveyancing Act 1919 providing the terms of access for each lot with respect to the private road (s 34 Agreement tab 6);
2. The provision of an updated Traffic Statement prepared by PDC Consultants dated 8.12.22, which provides updated swept paths (s 34 Agreement tab 5);
3. The provision of amended civil engineering plans prepared by Craig & Rhodes, which provide further details of the road layout (s 34 Agreement tab 4); and,
4. The provision of amended landscaping plans dated 9.12.22 prepared by Ground Ink Landscape Architects, which provide additional landscaping, particularly to the eastern end of the cul de sac to prevent light spill onto the neighbouring property.
1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP (Resilience and Hazards) 2021). The Respondent previously assessed the proposed development under the former State Environmental Planning Policy No. 55 - Remediation of Land and determined that the Site is suitable for industrial uses and that further investigation of land contamination was not required. Given there are no changes to the approved use in the Modification Application, the former determination satisfies s 4.6 of the SEPP (Resilience and Hazards) 2021.
2. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP (Transport and Infrastructure)). Section 2.118 of this SEPP (Transport and Infrastructure) applies as the Modification will share a frontage of a shared driveway that adjoins a classified road being Gurner Avenue. The parties agree that the requirements of this section are met.
3. Precincts SEPP
1. The Modification (as amended) satisfies the zone objectives of the IN2 Light Industrial Zone as set out in s 2.1 of Part 2 of the Precincts SEPP.
2. The subdivision was approved as part of the DA and as the modified development remains a subdivision the Modification satisfies s 2.6 of Part 2 of the Precincts SEPP.
3. Consent for the demolition of the existing structures was approved by the DC and therefore the modification satisfies s 2.7 of Part 2 of the Precincts SEPP.
4. There is no minimum lot size under s 4.1 of Part 4 of the Precincts SEPP and therefore the Modification satisfies this section.
5. Consent to clear the existing vegetation was provided as part of the DC and therefore the Modification satisfies s5.9 of Part 5 of the Precincts SEPP.
6. The Modification will not impact any aspect of European Heritage and therefore satisfies s 5.10 of the Precincts SEPP.
7. Council determined as part of the original DC that the necessary public infrastructure is available or can be made available when required. The Modification does not alter the required infrastructure and therefore the Modification satisfies Part 6 of the Precincts SEPP.
1. Liverpool Growth Centres Development Control Plan 2021 (DCP)
1. The DCP is relevant to the proposed Modification insofar as the temporary access arrangements to Roads 1 and 2 of the Indicative Layout Plan ('ILP') in Schedule 1 of the DCP apply to the development. Access to the proposed development will temporarily be via a shared driveway.
2. Once the public road network is developed (i.e. Roads 1 and 2 in the ILP), the shared driveway will be extinguished and access to and from the subject site will be by private road.
3. The amended Modification more consistently satisfies the ILP and therefore satisfies cl 2.2 of Pt 2 of the DCP.
4. The following relevant clauses of the DCP are also satisfied by the Modification as set out in the table below:
Control Comment
Part 2 - Precinct Planning Outcomes
2.2 Indicative Layout Plan (ILP) The development as modified would improve
compliance with the ILP in that the location of the two cul-de-sac heads would more accurately align with the ILP.
2.3.1 Flooding N/A - The site is not flood affected.
2.2 Water Cycle Management A Stormwater Management Plan accompanies this application and confirms the development as modified will continue to comply with Council's stormwater quantity and quality standards.
2.3.3 Salinity and Soil Management The modifications do not alter the previous assessment of salinity and soil management.
2.3.4 Aboriginal and European Heritage The modification do not alter the previous assessment of heritage issues.
2.3.5 Native Vegetation and Ecology The modifications have no impact on vegetation or ecology.
2.3.6 Bushfire Hazard Management The modifications will not impact the bushfire threat to the site or surrounding properties, noting that no change is proposed to the approved vegetation removal and no changes have been made to adjacent vegetation since DA approval.
2.3.7 Site contamination The modifications have no bearing on contamination.
2.3.8 Development on/adjacent to gas & electricity easements The modifications will not impact upon the electricity easement which affects the site.
2.3.9 Noise The modifications will not alter the noise environment.
2.4 Demolition The modifications have no bearing on demolition.
2.5 CPTED The modification will improve CPTED outcomes by creating a more regular lot layout without battle-axe handles.
2.6 Earthworks No significant changes to the approved earthworks are proposed.
Part 6 - Employment Lands
6.2.1 Lot Subdivision Notwithstanding the modified layout, the development will continue to comply by creating regular shaped allotments with suitable vehicular access and good sight lines.
6.2.3 Battle-axe lots Compliance will be improved by removing battle-axe allotments.
6.3 Landscape Design The modifications will not impact street tree planting as required under the existing consent conditions.
6.3.2. Landscaping of Car Parking Areas Car parking areas and landscaping will be considered as part of DAs for buildings in future.
6.3.4 Communal Areas Control applies to buildings only.
6.4.5 Ancillary buildings, storage and service areas No buildings are proposed.
6.4.6 Development adjacent to residentially zoned land The modified layout will enable better outcomes in terms of the interface with the residential land to the east in that greater building setbacks will be possible.
6.5 Ecologically sustainable development Water cycle management has been addressed in the stormwater management report accompanying this application. Compliance with Council's standards has been achieved.
6.7.1 Vehicular access Suitable access is proposed as part of the modifications. The accompanying Traffic Impact Assessment confirms the relevant standards can be achieved.
6.7.2 Parking Parking to be provided under future DAs for buildings.
6.8 Waste Management Waste to be considered under future DAs for buildings.
6.9 Safety and surveillance Surveillance to be considered under future DAs for buildings.
Schedule 1 Austral and Leppington Precincts
2.1 Precinct Planning - ILP The development as modified would improve compliance with the ILP in that the location of the two cul-de-sac heads would more accurately align with the ILP.
4.2 Development near/or on electrical easements The modifications will not impact upon the electricity easement which affects the site.
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Section 4.55 of the EPA Act:
1. The Amended Modification Application satisfies s 4.55(2)(a) as the proposed modified development will be substantially the same as the approved development in the original development consent, when considered in both a quantitative and qualitative context. The amendments relate to lot number, lot size and road layout and minor changes to the civil works required as part of the subdivision. The modified proposal remains an industrial subdivision.
2. The Modification was notified to both TransGrid and Endeavour Energy. No comments were received. It follows that the application satisfies section 4.55(2)(b) of the EPA Act.
3. The Modification was notified by Council and therefore s 4.55(2)(c) is satisfied.
4. The Council has considered the submissions made in respect of the Modification and therefore s4.55(2)(d) is satisfied.
5. Section 4.55(3) of the EPA Act provides:
In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
1. The parties consider that the amended Modification is substantially the same as the DC development, and that the approval of the amended Modification does not result in any contravention of the EPA Act, any environmental planning instrument or the EPA Regulation.
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:
1. Owner's consent to the Modification was given pursuant to s 4.12 of the EPA Act and s 98(1)(b) of the EPA Regulation.
2. The Modification was notified between 17 August and 31 August 2022 in accordance with Council's Community Engagement Strategy 2022. There was one objector. The Objector made oral submissions on Site on 8 November 2022, and the Modification was subsequently amended to take into account the Objector's submissions regarding 'light spill' as the trucks turn in the turning head of the cul de sac. The Objector owns the adjoining land which is zoned R2 Low Density Residential. The turning head and cul de sac was moved further into the allotment to provide for additional landscaping to prevent 'light spill' onto the future development on the Objector's land. The parties have considered the Objector's submission and amended the Modification accordingly.
3. There is no requirement under Council's Community Engagement Strategy 2022 to renotify the amendments to the Modification.
4. The Modification complies with the aims pursuant to the provisions of the Precincts SEPP found in Appendix 4 Liverpool Growth Centres Precinct Plan (Precinct Plan), Part 4 of the Precincts SEPP, and the aims set out in s 1.2 are:
1.2 Aims of Precinct Plan
The aims of this Precinct Plan are as follows -
……
(d) to provide for multifunctional and innovative development that encourages employment and economic growth,
……
(f) to provide for sustainable development,
(g) to promote pedestrian and vehicle connectivity.
1. The proposed development in the Modification complies with the objectives of the IN2 Light Industrial zoning as set out in Part 2 of the Precincts SEPP:
Zone IN2 Light Industrial
1 Objectives of zone
• To provide a wide range of light industrial, warehouse and related land uses.
• To encourage employment opportunities and to support the viability of centres.
• To minimise any adverse effect of industry on other land uses.
• To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.
1. In applying the test in s 4.55(2) of the EPA Act (having regard to Horseshoe Properties Pty Ltd v Tweed Shire Council [2021] NSWLEC 1507 and Arrage v Inner West Council [2019] NSWLEC 85) I am satisfied that the amended Modification is substantially the same development as the DC from both a qualitative and quantitative perspective:
1. From a quantitative perspective the Modification relates to the same Site, the allotments are reduced in number from 16 to 14, and each allotment will be subject to an 88B instrument providing access for each lot with respect to the future private road as set out in [9] above together with the Traffic Statement by PDC Consultants dated 8.12.22 regarding vehicular manoeuvring on the Site.
2. From a qualitative perspective the Modification provides a superior subdivision pattern including a more appropriate interface between the zoning of the Site as IN1 Light Industrial and the adjoining R2 Low Density Residential. The Modification also provides additional landscaping, particularly to the eastern end of the cul de sac, to prevent light spill onto the neighbouring property which is zoned R2 Low Density Residential.
3. The Applicant is not required to lodge the Amended Modification on the NSW planning portal pursuant to s 113(6) of the EPA Regulation.
4. The Modifications plans, drawings and documents listed in Annexure A were filed in the Court on 17 March 2023.
1. The agreed amendments to the Modification have met the jurisdictional pre-requisites as set out above.
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 s 34 Agreement between the parties, I was not required, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The Court notes that Liverpool City Council, as the relevant consent authority, has agreed under s 113(1) of the EPA Regulation 2021 to the Applicant amending its Modification Application DA-966/2020/A to DA-966/2020 to incorporate the plans, drawings and documents listed in Appendix 1, and the amendment to the conditions of consent as listed in Appendix 2, which have been consolidated into Annexure A.
The Court orders:
1. The appeal is upheld.
2. Modification Application No. DA-966/2020/A modifying Development Application DA-966/2020 by reducing the number of approved lots from 16 to 14, with subsequent amendments to the road and subdivision layout, stormwater infrastructure, and earthworks to lower the retaining walls on the western boundary, in relation to 140 Gurner Avenue, Austral NSW 2179 being Lot 17 in Deposited Plan 1210621, subject to conditions in Annexure A is approved.
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Annexure A
Appendix 1
Appendix 2
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Decision last updated: 24 March 2023