COMMISSIONER: These proceedings are an appeal to the Land and Environment Court of NSW (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Modification Application DA-392/2020/A (Modification) lodged with the Respondent on 21 December 2022, which seeks to modify the original development consent DA-392/2020 pursuant to section 4.55(1A) of the EPA Act.
The legal address of the subject land is Lot 915 in Deposited Plan 2475 being the whole of the land at 10 Ninth Avenue Austral in the Local Government Area of the City of Liverpool (Site).
Consent was granted to the original development application DA/392/2020 on 19 November 2021 (DA) as a deferred commencement approval. Works approved (subject to satisfaction of the deferred commencement conditions) included:
1. subdivision of 1 lot into 42 residential lots;
2. tree removal;
3. civil works and servicing;
4. creation of roads;
5. temporary onsite detention basin facilities to be carried out in 3 stages.
The Modification before the Court seeks consent to modify the DA as follows:
1. deletion of the deferred commencement conditions as they have been satisfied; and
2. update the lot numbering and staging configuration.
An amended subdivision plan has been prepared to reflect the updated lot numbering and staging for the proposed development: see plan below: Plan of Proposed Subdivision of Lot 915 in DP 2475 at Ninth Avenue Austral dated 11 May 2022 by North Western Surveys - tab 6 of the s 34 Agreement Bundle.
The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 26 June 2023, 11 and 21 July 2023. The parties filed a s 34 Agreement on 27 July 2023 , and a final (amended) s 34 Agreement on 30 August 2023 (s 34 Agreement). 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 the Court noting that the Respondent consented to the Applicant amending its Modification pursuant to s 113(4) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), and in accordance with the documents and plans referred to in par [31(2)] below, upholding the appeal and approving the Modification pursuant to s 4.55(1A) of the EPA Act subject to conditions in Annexure A.
The following documents have been filed to provide additional detail for the proposed development and to resolve the deferred commencement conditions:
1. Notice of Requirements prepared by Sydney Water has been provided to resolve deferred commencement Condition 1;
2. Amended Salinity Management Plan prepared by Sydney Environmental Group dated 9 February 2023 to resolve deferred commencement Condition 2;
3. Amended Civil Engineering Plans by North Western Surveys Pty Ltd dated May 2023 have been prepared to provide additional detail and resolve the deferred commencement Condition 3 which include:
1. The ocean guard has been replaced with details of the proposed tree pits;
2. street names have been included on Roads 1, 2 and 3;
3. plans detailing levels for the development to the west and the need for the retaining wall to facilitate drainage;
1. details of indicative building footprints and trees for retention;
2. details of kerb ramps to complete the footpath network at the intersections;
3. details of street lighting within the streetscape (including investigation of appropriate locations and specifications); and
4. details of pot sizes for street tree planting.
1. Traffic calming design measures have been included in the Amended Civil Engineering Plans and Traffic Plan by North Western Surveys Pty Ltd dated 26 June 2023 to resolve amended deferred commencement Condition 4 (tab 20 of the s 34 Agreement Bundle);
2. Owners consent from Greater Sydney Parklands dated 6 May 2023 has been provided to the Respondent to resolve deferred commencement Condition 5 (tab 16 of the s 34 Agreement Bundle);
3. An Amended Ecologist Advice by First Field Ecology Pty Ltd dated 14 April 2023, and Biodiversity Mapping Overlayed on Subdivision Plans by North Western Surveys Pty Ltd dated 12 April 2023 have been prepared to resolve deferred commencement Condition 8 (tabs 4 and 2 of the s 34 Agreement Bundle); and
4. The Amended Civil Engineering Plans by North Western Surveys Pty Ltd dated May 2023 to show the substation location and associated easements/restrictions on Lot 9 on the Plan Number 209 Services Plan and Plan Number 903 Lot Calculation/Landscaping Plan. The Applicant also provided correspondence with Endeavour Energy to resolve deferred commencement Condition 9 (tab 2 of the s 34 Agreement Bundle).
Deferred commencement conditions 6 and 7 of the DA have been resolved following receipt of written approval from Water NSW and NSW Rural Fire Services (NSW RFS).
The parties have reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. On this basis, the parties seek the orders set out in par [4] of the s 34 Agreement by approving the Modification subject to the conditions in Annexure A.
As the Modification is the subject of Court proceedings, and as the plans were amended subsequent to the commencement of proceedings, the amended plans are not required to be lodged on the NSW Planning Portal (cl 3 (1)(c) and (2), Pt 1, Sch 6 to the EPA Regulation).
The parties agree that the relevant jurisdictional requirements to enable the Court to make the orders sought in the s 34 Agreement in the proper exercise of its functions are set out below.
1. Section 4.55(1A)(b) of the EPA Act requires the Court to be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally modified (if at all).
1. Relevantly the Respondent does not contend that the Court could not be satisfied that the development to which the consent as modified relates is not substantially the same development as the development for which consent was originally granted.
2. Though the manner in which judicial decisions have interpreted the test in s 4.55(2)(a) (which is the same as s 4.55 (1A)(b)) may guide the meaning of the provision, they are not a substitute for the text of the legislation. The test remains as stated in the statutory provision that the modified development "is substantially the same development" as the originally approved development (Arrage v Inner West Council [2019] NSWLEC 85 at [18]-[19]).
3. The text of s 4.55(1A)(b) calls for a comparison between the development as proposed to be modified and the development as originally approved. That comparison may be done as a quantitative and qualitative assessment and may include an assessment of the impacts. That comparison is undertaken below.
4. The quantitative changes can be summarised as follows:
1. There is no change to the number of approved subdivided lots. The Modification still seeks the subdivision of 1 lot into 42 lots, including 41 residential lots and 1 lot for future public reserve.
2. There is however a change to the lot numbering and staging configuration as in the amended subdivision plan.
1. The qualitative changes can be summarised as follows:
1. There is no change to the road pattern, lot dimensions and lot area.
2. There is the addition of a 'no stopping' area along Toffler Place (half road).
3. Additional information and reports provided on the plans in support of the approved development in satisfaction of the Deferred Commencement Conditions.
1. The proposed modifications do not result in transformation of the DA.
1. Based on the above, the Court can be satisfied that the development to which the consent as modified relates is substantially the same development as development for which consent was originally granted.
Section 4.55(1A)(c)(i) relates to consultation with the relevant Minister, public authority or approval body in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of approval proposed to be granted by the approval body. This is not relevant as no such condition was imposed on the DA.
Section 4.55(1A)(c)(ii) relates to notification. The Modification is not required to be notified under the Respondent's Community Participation Plan dated 2019.
Section 4.55(1A)(d) refers to any submissions made in accordance with this Act or the regulations. No submissions were received as the Modification is not required to be notified under the Respondent's Community Participation Plan dated 2019.
Section 4.55(3) requires the Court to take into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the proceedings.
Rural Fires Act 1997:
1. The Site in the Modification is identified as 'bushfire prone land' and requires a bushfire safety authority under section 100B of Rural Fires Act 1997 from the NSW RFS. On 17 October 2022, NSW RFS reissued their General Terms of Approval in support of the proposed development subject to conditions. These conditions have been included in Annexure A.
State Environmental Planning Policy (Transport and Infrastructure) 2021:
1. Section 4.6 relates to zone SP2 Infrastructure. This section applies to the Modification as the Site is zoned part R2 Low Density Residential, RE1 Public Recreation and Part SP2 Infrastructure Local Road under Appendix 4 of the State Environmental Planning Policy (Precinct - Western Parkland City) 2021 (Western City Parklands SEPP). The amended civil plans in the Modification identify that the part of the Site zoned SP2 Infrastructure remains as a 'road' as zoned and approved per the DA. Therefore the considerations of s 4.6 have been satisfied as the Modification does not seek to vary the scope of the Site nor the proposed use of it.
State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP):
1. Pursuant to s 4.6 of the Resilience and Hazards SEPP a consent authority must be satisfied that appropriate consideration has been given to whether the Site is contaminated, the suitability of the Site to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so. The Applicant prepared a Preliminary and Detailed Site Investigation Report prepared by North Western Surveys Pty Ltd dated 31 March 2020 as part of the DA. The report concluded that the Site is considered to be suitable for the proposed development following the remediation of identified contamination outlined in the report (Tab 23 of the s 34 Agreement Bundle). This remains the case for the Modification.
State Environmental Planning Policy (Biodiversity and Conservation) 2021:
1. Chapter 2 relates to the clearing of vegetation in non-rural areas and applies to the Site as it is land within the 'City of Liverpool' Local Government Area pursuant to s 2.3.
2. The proposed development involves earthworks and road construction along the southern boundary, installation of catch drain and filter, installation of underground drainage and removal of vegetation along the southern boundary of the Site.
3. The majority of the Site is mapped as being bio-certified. For the parts of the Site that are not, the Applicant has prepared the following documentation in support of the proposed development:
1. A biodiversity mapping overlayed on the subdivision plan dated 12 April 2023 which identities lot 36 on the Biodiversity Values map (Tab 3 of the s 34 Agreement Bundle);
2. Amended Ecology Advice prepared by First Field Environmental dated 14 April 2023 (Amended Ecology Advice) (Tab 4 of the s 34 Agreement Bundle); and
3. Amended Civil Plans that identify the scope of the proposed works (Tab 2 of the s 34 Agreement Bundle).
1. The Amended Ecology Advice concludes that the proposed road reserve will not encroach upon RE1 designated land in Lot 36 or the mapped biodiversity values.
Western City Parklands SEPP:
1. Appendix 4 of the Liverpool Growth Centres Precinct Plan (Precinct Plan) of the Western Parkland City SEPP applies to the Site, pursuant to:
1. Section 1.2: the proposal is consistent with the aims of the precinct plan.
2. Section 2.2: the Site is zoned part R2 Low Density Residential, part RE1 Public Recreation and part SP2 Infrastructure (Local Road) as shown on the Land Zoning Map. The Modification is consistent with the objectives of the R2 Zone as established by the Land Use Table, specifically to provide for the housing needs of the community within a low-density residential environment.
3. Section 2.6: the Site is permitted to be subdivided under this plan, but only with development consent.
4. Section 2.7: refers to demolition of a building or work that may be carried out only with development consent. Management of operational waste materials have been prepared and provided as part of the Modification. Waste Management Plan prepared by North Western Surveys Pty Ltd filed 11 December 2022 (Tab 6 of the Class 1 Application).
5. Appendix 4 of the Precinct Plan identifies the development standards of lot size and density. The parties agree:
1. The applicable lot size is 300m2, and the lot sizes remain at 300m2 or in excess thereof;
2. In accordance with the Residential Density Map the minimum density is 15 lots/ha and as the proposal is providing 18.3 lots/ha it complies (cl 4.1B);
3. The Proposed Subdivision Plan prepared by North Western Surveys Pty Ltd dated 11 May 2023 and Density Plan prepared by North Western Surveys Pty Ltd dated 13 July 2023 (Tabs 6 and 21 of the s 34 Agreement Bundle) details compliance with the applicable lot size and density.
1. Section 5.9 refers to the preservation of trees and vegetation. The clearing of vegetation in the proposed development is consistent with this provision, with trees located within Lot 36 mapped with biodiversity values are to be retained. The Applicant has provided a Tree Removal Plan (Plan 103) in the Amended Civil Plans prepared by North Western Surveys Pty Ltd dated May 2023 (Tab 2 of the s 34 Agreement Bundle) and an Amended Ecology Advice prepared by First Field Environmental dated 14 April 2023 (Tab 4 of the s 34 Agreement Bundle).
2. Section 5.10 refers to heritage conservation. The Site is not mapped within a heritage conservation area, nor does it contain or is it adjacent to heritage items. However, the Site lies within the Gandangara Local Aboriginal Land Council jurisdiction. As such, the Applicant had prepared and submitted as part of the DA, an Aboriginal Due Diligence Assessment Report prepared by RPS Group dated 23 March 2020 which concluded that the site is not mapped as an Aboriginal archaeological significant area, and there are no perceived threats to Aboriginal cultural heritage on the Site. (Tab 24 of the s 34 Agreement Bundle). This remains the case for the Modification given the proposed development does not seek to vary the scope of the development nor proposed use.
3. Section 6.1 relates to the availability of public utility infrastructure and consent cannot be granted unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available and adequate arrangements have been made to make that infrastructure available when required. In response to this clause, the DA included the below documentation and correspondence has been had with Sydney Water:
1. Sheet 201 'Services Plan' of the Amended Civil Plans denotes the existing and proposed service connections for the Site (Tab 2 of s 34 Agreement Bundle).
2. The Applicant has provided correspondence from Sydney Water dated 8 December 2021 included in Tab 4 of the Class 1 Application. Sydney Water has confirmed allocating and servicing 33 lots by Sydney Water wastewater infrastructure that is scheduled to be commissioned by 2022-2023 and the remaining 8 lots to be serviced by 2026. Sydney Water will review the Notice of Requirements (NOR) on a regular (six monthly interval) basis to check the progress of works for the proposed development. As a result, a Notice of Requirements is not required at this time.
3. Accordingly, Water NSW has reviewed the proposal and considers that the deferred commencement conditions related to Water NSW have been satisfied.
Section 4.55(3) of the EPA Act also required the consent authority to take into consideration the reasons given by the consent authority for the grant of the DA that is sought to be modified (included in Tab 25 of the s 34 Agreement Bundle). The reasons detailed in the Respondent's Delegated Assessment Report in relation to the DA identifies the grant of consent, subject to the imposition of the deferred commencement conditions which the Applicant now seeks to remove having undertaken the provision of further information as required by those conditions. The Modification does not seek to vary any essential element of the reasons for the grant of the consent of the DA.
The parties have agreed on conditions of consent, and agree that the conditions of consent are lawful having regard to the provisions of s 4.17 of the EPA Act and relevant legal principles.
The parties consider that the approval of the Modification does not result in any contravention of the EPA Act, any environmental planning instrument or the EPA Regulation. As such the Court may exercise its function under ss 4.55(1A) and 4.17 of the EPA Act and approve the Modification.
The terms of the decision set out in the parties s 34 Agreement represent a decision the Court can make in the proper exercise of its functions.
I accept the reasons setting out the jurisdictional requirements, and shall approve the Modification in accordance with s 34(3) of the LEC Act and ss 4.55(1A) and s 4.17 of the EPA Act.
I was not required to, and have not made, any merit assessment of the issues that were originally in dispute between the parties.
I also accept that the Modification has minimal environmental impact in accordance with s 4.55(1A)(a) of the EPA Act, as the Modification simply updates the lot numbering and staging to reflect the procedural nature of the DA. Much of the documentation set out in par [31] below has been provided to satisfy the deferred conditions of consent in the DA.
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.
The Court notes that:
1. The Respondent, Liverpool City Council, as the relevant consent authority, agrees that the information provided by the Applicant as set out in par [9] above and [31(2)] below satisfies the deferred conditions of consent in DA 392/2020, and that DA 392/2020 is now operable.
2. The Respondent, Liverpool City Council, as the relevant consent authority, has agreed under sections 113(1) and 113(4) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-392/2022/A to rely upon the documents as follows:
No Document Date
Summary of Applicant's response to the Respondent's Statement of Facts and Contentions filed on 2 February 2023 April 2023
Amended Civil Plans prepared by North Western Surveys Pty Ltd
Plan 101 Rev D Sediment & Erosion Control Plan 12/04/23
Plan 102 Rev A Sediment & Erosion Control Notes 18/02/22
Plan 103 Rev D Tree Removal Plan 12/04/23
Plan 201 Rev B Services Plan 3/03/23
Plan 301 Rev B Cut Fill Depth Plan 3/03/23
Plan 302 Rev B Cut Fill Sections 3/03/23
Plan 303 Rev A Cut Fill Depth Plan - Lots 3-16 3/03/23
Plan 304 Rev A Cut Fill Sections - Lots 3-16 3/03/23
Plan 401 Rev D Proposed Civil Works 3/03/23
Plan 501 Rev C Typical Road Cross Sections & Details 3/03/23
Plan 502 Rev C Road Longitudinal Sections Ninth Ave & Browns Road 3/03/23
Plan 503 Rev C Road longitudinal Sections Farady, Toffler, Sparkes & Wanyuwa 3/03/23
Plan 504 Rev C Road Cross Sections Ninth Avenue Sheet 1 of 2 3/03/23
Plan 505 Rev C Road Cross Sections ninth Avenue Sheet 2 of 2 3/03/23
Plan 506 Rev C Road Cross Sections Browns Road Sheet 1 of 5 3/03/23
Plan 507 Rev C Road Cross Sections Browns Road Sheet 2 of 5 3/03/23
Plan 508 Rev C Road Cross Sections Browns Road Sheet 3 of 5 3/03/23
Plan 509 Rev C Road Cross Sections Browns Road Sheet 4 of 5 3/03/23
Plan 510 Rev A Road Cross Sections Browns Road Sheet 5 of 5 3/03/23
Plan 511 Rev C Road Cross Sections Sparkes Crescent Sheet 1 of 3 3/03/23
Plan 512 Rev C Road Cross Sections sparkes Crescent Sheet 2 of 3 3/03/23
Plan 513 Rev C Road Cross Sections Sparkes Crescent Sheet 3 of 3 3/03/23
Plan 514 Rev C Road Cross Sections Faraday Street Sheet 1 of 2 3/03/23
Plan 515 Rev C Road Cross Sections Faraday Street Sheet 2 of 2 3/03/23
Plan 516 Rev C Road Cross Sections Toffler Place 3/03/23
Plan 517 Rev C Road Cross Sections Wanyuwa Drive 3/03/23
Plan 518 Rev A Parklands Fenc
e Detail 2/03/23
Plan 601 Rev C Kerb Returns 1-3 3/03/23
Plan 602 Rev C Kerb Returns 4-6 3/03/23 May 2023
Plan 603 Rev C Kerb Returns 7-8 3/03/23
Plan 604 Rev A Browns Road-Ninth Avenue Intersection Concept Plan 3/03/23
Plan 701 Rev B Pre-Development Catchment Plan 3/03/23
Plan 702 Rev B External Post-Development Catchment Plan 3/03/23
Plan 703 Rev B Internal Post-development Catchment Plan 3/03/23
Plan 704 Rev C Drainage Longitudinal Sections Line 1 3/03/23
Plan 705 Rev C Drainage Longitudinal Sections Line 2, 3 & 4 3/03/23
Plan 706 Rev C Drainage Longitudinal Sections Line 5, 6, 7 & 8 3/03/23
Plan 707 rev C Drainage Longitudinal Sections Line 9, 10 & 11 3/03/23
Plan 708 Rev C Drainage Longitudinal Sections Line 12, 13, 14 & 15 3/03/23
Plan 708 Rev A Drainage Longitudinal Sections Temporary Line A, B, C, D & E 3/03/23
Plan 709 Rev A Drainage Longitudinal Sections Temporary Line A, B, , D & E 3/03/23
Plan 710 Rev B Basin Catchment Plan 3/03/23
Plan 710 Rev B Basin Typical Details 3/03/23
Plan 712 Rev A Level Spreader Detail 3/03/23
Plan 713 Rev A Silt Trap Details 3/03/23
Plan 714 Rev A Silt Trap Details 3/03/23
Plan 715 Rev A Future Raingarden Details 3/03/23
Plan 716 Rev A Future Raingarden Details 3/03/23
Plan 717 Rev A Future Raingarden Details 3/03/23
Plan 718 Tree Pit Typicals & Details in-Road Treatment Sheet 1 of 3 3/03/23
Plan 719 Rev A Tree Pit Typicals & Details in-Road Treatment Sheet 2 of 3 3/03/23
Plan 720 Rev A Tree Pit Typicals & Details in-Road Treatment Sheet 3 of 3 3/03/23
Plan 721 Rev A Street Tree Typicals & Details in-Road Treatment Sheet 1 of 2 3/03/23
Plan 722 Rev A Street Tree Typicals & Details in-Road Treatment Sheet 2 of 2 3/03/23
Plan 801 Rev B Retaining Walls Plan & Details Sheet 1 of 3 3/03/23
Plan 802 Rev B Retaining Walls Plan & Details Sheet 2 of 3 3/03/23
Plan 803 Rev B Retaining Walls Plan & Details Sheet 3 of 3 3/03/23
Plan 901 Rev A Signage & Linemarking Plan 3/03/23
Plan 902 Rev A Vehicle Swept Path Plan 3/03/23
Plan 903 Rev C Lot Calculation & Landscaping Plan 3/03/23
Biodiversity Mapping Overlayed on Subdivision Plans prepared by North Western Surveys Pty Ltd 12 April 2023
Amended Ecology Advice prepared by First Field Environmental 14 April 2023
Amended Salinity Management Plan prepared by Sydney Environmental Group 9 February 2023
Amended Subdivision Plan prepared by North Western Surveys Pty Ltd 11 May 2022
Concept Stormwater Management Plan Report for 20 Ninth Avenue prepared by North Western Surveys 13 March 2023
Catchment Plan prepared by Diversi Creative Engineering Solutions 20 August 2021
Certified Lighting Design prepared by Sylvania Schreder 27 July 2022
Aerial Map November 2022
Music Link Report 1 March 2023
Sheet List prepared by North Western Surveys Pty Ltd 3 March 2023
Drain models - electronic files 2023
Building Envelope for Lot 9 prepared by North Western Surveys 23 May 2023
a. Letter from Endeavour Energy dated 13 March 2023;
b. Summary of Environmental Report prepared by Endeavor Energy dated 14 February 2023; 2023
c. Safety Design Report prepared by Ara Electrical dated 14 February 2023; and
d. Reticulation, Duct, Trench and Easement Plans Prepared by Ara Electrical dated 19 March 2023.
Owners Consent prepared by Greater Sydney Parklands 6 May 2023
Letter from North Western Surveys Pty Ltd providing additional flooding information for lot 3 and lot 16 23 June 2023
Explanatory Statement prepared by North Western Surveys Pty Ltd 26 June 2023
Drains Models - electronic files 26 June 2023
Traffic Plan prepared by North Western Surveys Pty Ltd 26 June 2023
Density Plan prepared by North Western Surveys Pty Ltd 13 July 2023
Traffic Impact Statement prepared by Winning Traffic Solutions April 2020
Preliminary and Detailed Site Investigation Report prepared by North Western Surveys Pty Ltd 31 March 2020
Aboriginal Due Diligence Assessment Report prepared by RPS Group 23 March 2020
Assessment report of DA-392/2020 2021
[2]
The modifications to Development Consent DA-392/2020 are set out in tracked changes in Annexure B.
The Court Orders:
1. The appeal is upheld.
2. Modification Application DA-392/2022/A is approved in accordance with Plan of Proposed Subdivision by North Western Surveys, Plan 1 of 5 dated 11 May 2022, to modify the existing conditions in development consent DA-392/2020 including reduced earthworks and removal of works from non-bio certified areas, adjustments to the collector road and amendments to the lot numbering and staging configuration at 10 Ninth Avenue, Austral, being the whole of the land in Lot 915 Deposited Plan 2475 subject to the conditions of consent in Annexure A.
[3]
Architectural plans
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Decision last updated: 12 September 2023