Land and Environment Court New South Wales Medium Neutral Citation: Leura Bush Store Pty Ltd v Blue Mountains City Council [2023] NSWLEC 1098 Hearing dates: Conciliation Conference held on 13 February 2023 Date of orders: 07 March 2023 Decision date: 07 March 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The Applicant is granted leave to amend the application to rely on the amended plans and documents listed as the relevant plans and documentation in the Conditions of Consent at Annexure A. (2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application in the sum of $8000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the date of these orders. (3) The appeal is upheld. (4) Development Application No. X/1065/2020 for the erection of a part one and two storey 'Health Services Facility' building comprising five consulting rooms with business identification signage, associated car parking, vehicular access and landscaping, at 41 and 47 Parke Street, Katoomba (Lot 18 DP 663852 and Lot C DP 170351), is determined by the grant of approval, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – construction of a health services facility – conciliation conference – agreement between the parties – orders Legislation Cited: Blue Mountains Local Environmental Plan 2015, cll 6.4, 6.9, 6.14, 6.19 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 55, 55AA, 121B Environmental Planning and Assessment Regulation 2021, Sch 6, s 3 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, cl 6.65 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Leura Bush Store Pty Ltd (Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: K Blunden (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Marsdens Law Group (Respondent) File Number(s): 2022/93571 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. X/1065/2020 for the erection of a part one and two storey 'Health Services Facility' building comprising five consulting rooms with business identification signage, associated car parking, vehicular access and landscaping (the proposal) at 41 and 47 Parke Street, Katoomba (Lot 18 DP 663852 and Lot C DP 170351) (the site) by the Blue Mountains City Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 February 2022. 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. 3. 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 4.16 of the EPA Act to grant consent to the development application. 4. There are preconditions to the exercise of power to grant development consent for the proposal. Amended Plans 1. The Environmental Planning and Assessment Regulation 2000 continues to apply to the application, because the application was lodged on 9 December 2020 and not yet determined by the Court on 1 March 2022 (s 3 of Sch 6 to the Environmental Planning and Assessment Regulation 2021). Pursuant to s 3(2) of Sch 6 of the Environmental Planning and Assessment Regulation 2021, a requirement to use the NSW Planning Portal under the 2000 Regulation, cll 55(1), 55AA(2)(d) or 121B(1) does not apply if the development application is subject to proceedings in the Court. 2. The Council, as the relevant consent authority, consented to the amendment of the application. The amended application amended the plans and documents the subject of the application. Planning framework 1. The site is zoned R3 Medium Density pursuant to the Blue Mountains Local Environmental Plan 2015 (LEP 2015). The objectives of the zone, to which regard must be had, are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To consolidate residential opportunities in accessible localities within close proximity to commercial centres and railway stations. • To ensure that residential development contributes to the streetscape and has a scale and character that is consistent with adjoining residential land uses and minimises any adverse impact on the amenity of residents. 1. A small area of the site at the rear is mapped as 'Protected Area – Slope Constraint' under LEP 2015. I accept the Council's submission that the proposal has met the requirements under cl 6.4(3) of LEP 2015. 2. I accept the Council's submission that the proposal is consistent with the matters identified regarding stormwater management under cl 6.9(2) of LEP 2015. 3. I accept the Council's submission that the proposal is consistent with the matters identified regarding earthworks under cl 6.14 of LEP 2015. 4. I accept the Council's submission that the proposal exhibits design excellence under cl 6.19(3) of LEP 2015, having had regard to the matters identified under cl 6.19(4). 5. I accept the Council's submission that the site is suitable for the proposal pursuant to cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. 6. The former provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) as in force immediately prior to 21 November 2022 continue to apply to the application (cl 6.65 of the amended Biodiversity SEPP). Clauses 8.8 and 8.9 of the Biodiversity SEPP are in the following terms: 8.8 Development consent cannot be granted unless neutral or beneficial effect on water quality (1) A consent authority must not grant consent to the carrying out of development under Part 4 of the Act on land in the Sydney drinking water catchment unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality. (2) For the purposes of determining whether the carrying out of the proposed development on land in the Sydney drinking water catchment would have a neutral or beneficial effect on water quality, the consent authority must, if the proposed development is one to which the NorBE Tool applies, undertake an assessment using that Tool. Note— The NorBE Guideline provides information and guidance for consent authorities in the use of the NorBE Tool. 8.9 Development that needs concurrence of Regulatory Authority (1) A consent authority must not grant consent to the carrying out of development under Part 4 of the Act on land in the Sydney drinking water catchment except with the concurrence of the Regulatory Authority. (2) For the purposes of section 3.18(3) of the Act, the matters that are to be taken into consideration by the Regulatory Authority in deciding whether to grant concurrence are— (a) whether the development incorporates Water NSW's current recommended practices and standards, and (b) if the development does not incorporate those practices and standards, whether the alternative practices that relate to the protection of water quality that have been adopted in relation to the development will achieve outcomes not less than those achieved by Water NSW's current recommended practices and standards, and (c) whether the development would have a neutral or beneficial effect on water quality. (3) A consent authority must forward a copy of its determination of a development application that requires the concurrence of the Regulatory Authority to the Regulatory Authority within 10 days after the determination is made. (4) This section does not apply if— (a) the Minister is the consent authority, or (b) the consent authority is satisfied that the proposed development has no identifiable potential impact on water quality. 1. I accept the Council's submission that the Council has carried out an assessment of the proposal and that the cll 8.8 and 8.9 of the Biodiversity SEPP are met. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 10 February 2022 and I am satisfied based on the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. The Applicant is granted leave to amend the application to rely on the amended plans and documents listed as the relevant plans and documentation in the Conditions of Consent at Annexure A. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application in the sum of $8000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the date of these orders. 3. The appeal is upheld. 4. Development Application No. X/1065/2020 for the erection of a part one and two storey 'Health Services Facility' building comprising five consulting rooms with business identification signage, associated car parking, vehicular access and landscaping, at 41 and 47 Parke Street, Katoomba (Lot 18 DP 663852 and Lot C DP 170351), is determined by the grant of approval, subject to the conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court Annexure A (322691, 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: 07 March 2023