Lozanoska v Liverpool City Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Liverpool City Council’s Community Engagement Strategy 2022
Liverpool Development Control Plan 2008

Category: Principal judgment

Parties: Jacky Lozanoska (Applicant)
Liverpool City Council (Respondent)

Representation: Counsel:
Litigant in person (Applicant)
J Garcia, solicitor (Respondent)
Solicitors:
Liverpool City Council (Respondent)

File Number(s): 2025/76981

Publication restriction: No

JUDGMENT

1. COMMISSIONER: The Applicant lodged a development application (DA-15/2024) with Liverpool City Council (the Council) for the demolition of existing structures, subdivision of an existing allotment into two Torrens Title Lots and the construction of two 2-storey semi-detached dwellings. The development is proposed at 80 Green Valley Road, Busby (Lot 1128 DP 224957). The development application was refused. Pursuant to s 8.3(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) the Applicant filed a request for the Council to review their determination to refuse the development application. The request for review was allocated application number RD/55/2025 (the Review Application). Pursuant to s 8.4 of the EPA Act the Council conducted a review of the determination of DA-15/2024 and confirmed the refusal of the development application. The Review Application was refused. The Applicant appeals to the Court against the Councils refusal of the Review Application pursuant to s 8.6(2) of the EPA Act.

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties which was held on 24 July 2025. I presided over the conciliation conference. Prior to 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. This agreed 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 22 July 2025.

3. As the presiding Commissioner, I am satisfied that the decision is one 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). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties' agreed resolution. (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

4. The development application was lodged with the consent of the owners of the land. The Applicant in these proceedings is the registered proprietor of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

5. The development application was notified in accordance with Liverpool City Council’s Community Engagement Strategy 2022 between 17 December 2024 to 27 January 2025. No submissions were received during the notification period.

6. Pursuant to Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) the site is located within the Georges River Catchment and is subject to the provisions of SEPP BC. In deciding whether to grant development consent, the consent authority must consider ss 6.6(1), 6.7(1), 6.8(1) and 6.9(1) in Ch 6 which require consideration of the impacts of development on land located within the Georges River Catchment, which is a "regulated catchment" as defined in Sch 6 - Dictionary to Ch 6 of the SEPP BC.

7. Sections 6.6(2), 6.7(2), 6.8(2) and 6.9(2) in Div 2 of Pt 6.2 of the SEPP BC precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to:

(a) water quality and quantity; (b) aquatic ecology; (c) flooding; (d) recreation and public access; and (e) total catchment management.

5. The Applicant’s development application includes stormwater schematics demonstrating the stormwater will drain to the kerb. On the basis of these stormwater schematics, and the development application as a whole, I accept the agreement of the parties that:

(a) the stormwater plans for the Proposed Development ensure that:

(i) the effect on the quality of water entering a natural waterbody will be beneficial, noting the existing lack of filtration and other treatment mechanisms on the site; and (ii) the impact on water flow in a natural waterbody will be minimised (s. 6.6(2) of the SEPP BC).

(b) the Proposed Development:

(i) keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; (ii) will not have a direct, indirect or cumulative adverse impact on aquatic reserves; (iii) minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and (iv) minimises any adverse impact on wetlands (s. 6.7 of the SEPP BC).

(c) the Proposed Development is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s. 6.8(1) of the SEPP BC). The site is not located within the flood planning area and so is not considered to be flood liable land for purposes of s 6.8(2) of the SEPP BC; (d) the Proposed Development does not affect recreational land use or public access to and from foreshores or natural waterbodies given the Site’s location (s. 6.9 of the SEPP BC); (e) the Proposed Development is not likely to have an adverse environmental impact on any adjacent local government area (s. 6.10 of the SEPP BC); and (f) the Proposed Development is not located within a natural waterbody (s 6.11 of the SEPP BC).

6. The requirements of SEPP BC are met by the amended development application.
7. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The Respondent and the Applicant agree, and I accept, that the site has a long history of residential use with no known records of contaminating activity being conducted on the site. This history is detailed in the Statement of Environmental Effects (SEE). Conditions 71 and 182 in Annexure A ensure that any new information which arises during demolition or construction works that has the potential to alter previous conclusion about site contamination must be immediately notified in writing to the certifier and the Council. I find that s 4.6(1) of SEPP RH is satisfied.
8. The amended development application provides BASIX Certificate 1316702M_04, dated 4 July 2025, as required pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulations).
9. The site is zoned R2 – Low Density Residential pursuant to Liverpool Local Environmental Plan 2008 (LEP 2008). The development is for the purpose of semi-detached dwellings and subdivision and is permissible in the zone subject to development consent. As required by cl 2.3 of LEP 2008 in granting consent to the development application I have given consideration to the objectives of the zone.
10. Demolition works are permissible with consent under cl 2.7 of LEP 2008.
11. The development application does not comply with the development standard at cl 4.1 ‘Lot size’ in LEP 2008. The minimum lot size applying to the site is 300 sqm. Proposed Lot 1 is compliant with the standard at 300 sqm, however proposed Lot 2 has a proposed area of 295sqm, thus varying the standard. The development application seeks a variation to the development standard through cl 4.6 of LEP 2008. The development application is accompanied by a written request to vary the standard. I have read the written request prepared by Fineline Planning & Design May 29, 2025, and in accordance with cl 4.6 of LEP 2008, I am satisfied that:

(a) The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the lot size control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2008). I find that the objectives of the lot size standard are met, notwithstanding the variation to the standard for the reasons detailed in the written request which I adopt. (b) I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2008). In particular, I find that the reasons articulated in written request in relation to minor quantum of the variation, the lack of adverse impacts arising from the variation, and the conformance of the development with the existing and future character. (c) The states of satisfaction required by cl 4.6 of LEP 2008 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the lot size control.

12. The development application is compliant with the height and floor space ratio development standards at cll 4.3 and 4.4 of LEP 2008.

13. There are no other relevant jurisdictional matters or development standards in LEP 2008 that constrain or prevent the granting of development consent.

14. Liverpool Development Control Plan 2008 (DCP 2008) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2008. In determining the development application, I have considered the provisions of the development control plan s 4.15(1) of the EPA Act.

15. 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)).

16. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

17. The Court notes that:

18. Liverpool Council as the relevant consent authority has, pursuant to s 37 of the EPA Regulation, consented to the following amendments to the development application:

| Approved plans | | Project No | Plan number | Revision number | Plan title | Drawn by | Date of plan | | RU ­ 22206 | SD­01J | J | 2­Lot Torrens title Subdivision | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | SD­ 02J | J | Subdivision Plan | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DD­ 01J | J | Demolition Plan | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­ 02J | J | Erosion and Sediment Control | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­03J | J | Site Plan | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­07J | J | Proposed Ground Floor Plan | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­08J | J | Proposed First Floor Plan & Part Roof | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­09J | J | Upper Roof Plan | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­10J | J | Front Elevation ­ North | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­11J | J | Rear Elevation ­ South | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­12J | J | Side Elevation 1 ­ West | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­13J | J | Side Elevation 2 ­ East | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­14J | J | Section 1 | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­15J | J | Section 2 | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­16J | J | Section 3 | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | DA­17J | J | Doors and Window Schedule | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | L­01J | J | Landscape Plan | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | L­02J | J | Landscape Schedule | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | L­03J | J | Landscape Details | Condor Designs Pty Ltd | 02/07/25 | | RU ­ 22206 | D-01J | J | Details | Condor Designs Pty Ltd | 02/07/25 | | Approved documents | | Document title | Certificate number | Prepared by | Date of document | | Waste Management Plan | ­ | Condor Designs Pty Ltd | 14/07/2025 | | BASIX Certificate | 1396640M_04 | Paul & David Consulting Pty Ltd | 04/07/2025 | | Acoustic Assessment | Project no. PL1066720 | Stantec Australia Pty Ltd | 28/05/2024 |

Orders

7. The Court orders that:

8. The appeal is upheld,

9. The review of determination RD-55/2024 is determined by approving development application DA-15/2024 which seeks consent for the demolition of existing structures, subdivision of an existing allotment into two Torrens Title Lots and the construction of two 2-storey semi-detached dwellings at 80 Green Valley Road, Busby subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (641 KB, pdf)

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