Land and Environment Court New South Wales Medium Neutral Citation: Fragar v Blue Mountains City Council [2022] NSWLEC 1455 Hearing dates: Conciliation conference 22, 23 August 2022 Date of orders: 1 September 2022 Decision date: 01 September 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld (2) Development consent is granted to Development Application No X/1528/2021 for the construction of a new dwelling house attached to the existing dwelling house (resulting in a dual occupancy (attached)), 2 lot Torrens title subdivision, tree removal and landscaping works on the land at 52 South Street, Katoomba, subject to the conditions annexed hereto and marked 'A'. Catchwords: DEVELOPMENT APPLICATION– proposed new dwelling attached to exiting dwelling – alterations to existing dwelling – subdivision – amended plans – agreement between the parties – orders made. Legislation Cited: Blue Mountains Local Environmental Plan 2015 cll 2.6, 4.1, 4.1B, 6.9, 6.14, 6.17, 6.21, 6.23 Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000 cl 55 Land and Environment Court Act 1979 ss 34, 34AA State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 Category: Principal judgment Parties: Loren A Fragar (Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: C Gough (Solicitor) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Storey & Gough (Applicant) Marsdens Law Group (Respondent) File Number(s): 2022/75415 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal by the Applicant against the actual refusal of their development application (X/1528/2021) by Blue Mountains City Council. The Applicant filed a Class 1 Application, appealing the refusal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). As amended the development application seeks consent for the construction of a new single storey, 3-bedroom dwelling attached to an existing single storey, 3-bedroom dwelling (resulting in a dual occupancy (attached) development). The development application also proposes an associated 2 lot Torrens title subdivision, tree removal and landscaping works. The development is proposed at 52 South Street, Katoomba (Lot 6 DP 8371). 2. The appeal was subject to conciliation on 22 August 2022, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided at the conciliation conference. As a result of the discussions at the conciliation amended plans and documentation were prepared and agreement was reached between the parties. That agreed decision is that the appeal is upheld, the development application is approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act. 3. 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 below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 4. 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). I have formed this state of satisfaction for the following reasons: 1. The development application was made with the consent of the owner of the subject site. 2. The development application was notified to adjoining owners and advertised in the local paper for the period of 1 – 15 October 2021. Three submissions were received by the Respondent. Further, at the commencement of the matter on site a resident addressed the Court outlining their concerns. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either the amendment to the application or through the imposition of conditions of consent. 3. The development application is accompanied by a BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) came into force on 1 March 2022. SEPP RH transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) to the new instrument. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of SEPP RH. The Statement of Environmental Effects notes that there is no indication of previous uses that would cause contamination in Council's records or filling of site which would increase the risk of contamination. I have considered whether the land is contaminated in accordance with s 4.6 SEPP RH and I accept that the site will be suitable for the proposed development. 5. The proposed development is subject to the provisions of the Blue Mountains Local Environmental Plan 2015 (LEP 2015). Pursuant to LEP 2015 the subject site is zoned R2 Low Density Residential. Development for the purpose of dual occupancies is a permitted use in the zone. In determining the development application, I have given consideration to the zone objectives. 6. Pursuant to cl 2.6 of LEP 2015 subdivision is permitted with consent. 7. The site is mapped as having a minimum lot size of 720m², as such the Torrens title subdivision of the lot under cl 4.1(3) of LEP 2015 is not permitted. The proposed development relies on the exception at cl 4.1B(3) of LEP 2015 which allows for subdivision for the purposes of dual occupancy development in the R2 Low Density Residential zone where the original lot is 720m² and one of the dwellings has a gross floor area less than 100m². The proposed development complies with this development standard. 8. The proposed development complies with the development standards for height and floor space ratio in LEP 2015. 9. Pursuant to cl 6.9: Stormwater of LEP 2015 I am required to be, and I am, satisfied that the development consent addresses the matters listed at sub cl (2). 10. In determining whether development consent should be issued I have considered the matters at cl 6.14: Earthworks of LEP 2015 and I am satisfied none warrant the refusal of the development application. 11. Clause 6.17 of LEP 2015 requires the consent authority to consider a number of factors directed to determining whether the development is consistent with or enhances the character and landscape of the locality. I am satisfied that the proposed development, as amended, will be consistent with the character of the locality. In determining the development application, I have considered the matters at cl 6.17(3) of LEP 2015. 12. I note that cl 6.21: Sustainable Resource Management requires the consent authority to consider whether the development application achieves a list of ecologically sustainable development practices. I am satisfied, by reference to the submitted BASIX certificate that these factors are met for water reduction and energy conservation. 13. In determining the development application, I am satisfied that the services listed at cl 6.23(1) that are essential for the development are available. Further I am satisfied that the creation of an additional lot is capable of being serviced by reticulated sewer and potable water: cl 6.23(2) of LEP 2015. 1. 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. 2. 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. 3. In making the orders, the Court also notes that: 1. Blue Mountains City Council, as the relevant consent authority for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW), agrees to the Applicant amending development application no. X/1528/2021 to rely upon the following plans and documents; Document Prepared by: Drawing No Issue Date Proposed Site Context Plan The Approvals Group DA-002 Revision U 23.08.2022 Proposed Site Plan The Approvals Group DA-004 Revision U 23.08.2022 Demolition Plan The Approvals Group DA-008 Revision U 23.08.2022 Existing Dwelling Alterations The Approvals Group DA-009 Revision U 23.08.2022 Proposed Ground Floor Plan Pre-Adaptation The Approvals Group DA-012 Revision U 23.08.2022 Proposed Loft Floorplan The Approvals Group DA-013 Revision U 23.08.2022 Proposed Adaptable Floor Plan Post Adaptation The Approvals Group DA-014 Revision U 23.08.2022 Proposed Roof Plan The Approvals Group DA-015 Revision U 23.08.2022 Proposed Subdivision The Approvals Group DA-016 Revision U 23.08.2022 Proposed Elevations The Approvals Group DA-017 Revision U 23.08.2022 Proposed Elevations and Sections The Approvals Group DA-018 Revision U 23.08.2022 Proposed Waste Management Plan The Approvals Group DA-019 Revision U 23.08.2022 Schedule of Finishes and Glazing The Approvals Group DA-021 Revision U 23.08.2022 Job No. 220801 Landscape Plan Botanica - Narelle Sonter LP.01/A Revision A August 2022 Sheet 1 of 1 1. The amended plans and documents referred to above were lodged on the NSW Planning Portal by the Applicant on 23 August 2022. 1. The Court orders that: 1. The appeal is upheld 2. Development consent is granted to Development Application No X/1528/2021 for the construction of a new dwelling house attached to the existing dwelling house (resulting in a dual occupancy (attached)), 2 lot Torrens title subdivision, tree removal and landscaping works on the land at 52 South Street, Katoomba, subject to the conditions annexed hereto and marked 'A'. ………………… D M Dickson Commissioner of the Court Annexure A (293218, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2022