Land and Environment Court New South Wales Medium Neutral Citation: Bio-Building Design Pty Ltd Architects v Blue Mountains City Council [2023] NSWLEC 1124 Hearing dates: Conciliation Conference 16 and 17 March 2023 Date of orders: 22 March 2023 Decision date: 22 March 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development Application No. X/1094/2021 for the construction of a part 1, part 2 storey dwelling house and associated structures on the land at 40 Wilson Street, Wentworth Falls, is determined by the grant of consent subject to the conditions of consent annexed hereto and marked "A". Catchwords: DEVELOPMENT APPEAL – residential development flood planning – slope constrained site - conciliation conference – agreement between the parties - orders Legislation Cited: Blue Mountains Local Environmental Plan 2015, cll 4.3, 4.4A, 5.10, 5.21, 6.1, 6.4, 6.8, 6.9, 6.12, 6.14, 6.17, 6.21, 6.23, Sch 5 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979, ss 34, 34AA, 39 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.65, 8.5, 8.8, 8.9 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy Amendment (Water Catchments) 2022 Texts Cited: NSW EPA, Managing Land Contamination Planning Guideline (August 1998) Category: Principal judgment Parties: Bio-Building Design Pty Ltd ACN 67 002 764 196 (Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: A Seton (Solicitor)(Respondent) Solicitors: Litigant in person (Applicant) Marsdens Law Group (Respondent) File Number(s): 22/226408 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA X/1094/2021 for construction of a part 1, part 2 storey split-level dwelling house with a carport, deck and water tanks on a vacant allotment (the Proposed Development) at 40 Wilson Street, Wentworth Falls legally described as Lot 5 Section B in DP 3497 (the Site). 2. The Applicant was represented by its sole director, John Van der Have. 3. The Class 1 Application was filed on 2 August 2022 and the Applicant was granted leave to amend the development application and to rely upon amended plans and documents in the proceedings on 30 September 2022. 4. The proceedings had been listed previously for a conciliation conference and hearing pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 16 and 17 November 2022. In preparation for this previous listing, the following evidence was prepared and filed to consider and address the Respondent's Amended Statement of Facts and Contentions (ASOFAC) filed 7 October 2022: 1. Joint expert report of the parties' planning experts, Mr Alex Williams for the Respondent and Ms Vivienne Katsanos for the Applicant, filed 26 October 2022; 2. Joint expert report of the parties' engineering experts, Ms Katharine Hawken for the Respondent, and Mr Stuart Brown for the Applicant, filed 26 October 2022; and 3. Individual expert report of the Respondent's heritage expert, Dr Senthil Kasiannan filed 25 October 2022. 1. It was agreed by the parties' engineering experts that Contention 1 (Effluent Disposal) was capable of resolution subject to conditions of consent, and that Contention 2 (Stormwater Management and Overland Flow) was capable of resolution subject to amendments to the stormwater design and further modelling. 2. It was agreed by the parties' planning experts that Contention 3 (Architectural Design and Character) was capable of resolution with amendments to the architectural plans. 3. The previous conciliation conference and hearing dates of 16 and 17 November 2022 were vacated by the Court on 10 November 2022 to enable the Applicant to provide amended plans and documents responding to the agreements reached in the joint expert reports. The matter was then listed for a conciliation conference and hearing on 16 and 17 March 2023. 4. The Applicant, pursuant to a Notice of Motion, was granted further leave to amend the Proposed Development and to rely upon amended plans and documents in the proceedings on 3 February 2023. 5. The Respondent filed a Further Amended Statement of Facts and Contentions (FASOFAC) on 6 March 2023. While Contention 1 was considered to be resolved, concerns remained in Contentions 1 and 2 (as renumbered) relating to the stormwater and architectural design of the Proposed Development. A new contention was also raised (being Contention 3) in relation to the Respondent's uncertainty as to how building height had been depicted on the amended architectural plans. 6. The Court granted leave for further joint expert reports to be prepared in relation to the outstanding contentions particularized in the FASOFAC. 7. The parties engaged in without prejudice discussions which led to an agreement as to the resolution of Contentions 2 (Architecture Design and Character) and 3 (Height – Insufficient Information) firstly via proposed conditions of consent and the provision of additional information in relation to the depiction of building height of the plans. The amendments required by the proposed conditions were then formally made in a further set of architectural plans prepared by the Applicant dated 14 March 2023 and listed in the Notations below. 8. A joint expert report of the parties' stormwater/flooding engineers was filed on 13 March 2023, in which a resolution of Contention 1 (Stormwater Management and Overland Flow) subject to conditions of consent was agreed between the experts. 9. The Respondent filed updated Draft/Proposed Conditions of Consent incorporating those conditions agreed between the engineering experts on 15 March 2023. 10. I presided over the conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 16 and 17 March 2023. 11. 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 upholding the appeal and granting development consent to the development application subject to agreed conditions. 12. 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. 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. 13. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 14. 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 the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note which I have considered and set out the relevant parts which form part of my reasons below. 15. Chang Kyun Son and Yonhee Kim are the registered proprietors of the Site and their consent dated 2 July 2021 to the lodgment of the development application is evident on the Land Use Application form filed with the Class 1 Application. 16. The Applicant has provided an updated BASIX Certificate dated 13 March 2023 as required by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 17. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires a consent authority, before granting consent to the carrying out of any development on land, to: 1. Consider whether the land is contaminated, and 2. If the land is contaminated, to be satisfied that the land is suitable in its contaminated state for the purpose of which the development is proposed to be carried out, or, 3. If the land requires remediation to make it suitable, to be satisfied that the land will be remediated before the land is used for the relevant purpose. 1. The FASOFAC notes at par 30 on page 5, that the Site is not listed on the Respondent's potentially contaminated land register and none of the activities that may cause contamination (listed in Table 1 of Managing Land Contamination Planning Guideline) are being or are known to have been carried out on the Site. I am satisfied that no further investigation as to contamination or remediation is required. 2. The version of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) in force to 20 November 2022 applies to the Proposed Development pursuant to the savings provision in s 6.65 of SEPP Biodiversity and Conservation in relation to the amendments effected by State Environmental Planning Policy Amendment (Water Catchments) 2022, which commenced on 21 November 2022. The Site is within the Sydney Drinking Water Catchment pursuant to the Drinking Water Catchment Map referred to in s 8.5 of SEPP Biodiversity and Conservation. 3. Section 8.8 of SEPP Biodiversity and Conservation provides that a consent authority must not grant consent to the carrying out of development 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, and furthermore that the consent authority must undertake an assessment using the NorBE Tool to determine whether the carrying out of such development would have such an effect. 4. The Court is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality because a Supplementary Joint Engineering Report (Water Quality) prepared by Mr Koebsch and Ms Hawken filed 16 March 2023 considers the MUSIC model layout provided by Ocean Protect and Civil Plans by Samana Blue Engineering Rev A dated 30 January 2023 in order to reach the agreed expert conclusion that "a neutral or beneficial effect on water quality will be achieved by the proposed water management regime shown". 5. I also note that proposed Condition of Consent number 33 requires additional water quality modelling to be prepared to confirm that the proprietary treatment device has been designed for the correct contributing landscaped area and that a neutral or beneficial effect on water quality is still being achieved which is intended to further confirm the effect of the proposed development that has been established by the plans and documents before the Court. 6. The function of granting concurrence under s 8.9 of SEPP Biodiversity and Conservation is delegated to the Respondent for development comprising dwelling houses. The Respondent is prepared to grant concurrence as required by this provision, however, the Court as consent authority in Class 1 proceedings has the function of the Respondent pursuant to s 39 of the LEC Act. 7. There are a number of jurisdictional prerequisites contained in provisions of the Blue Mountains Local Environmental Plan 2015 (BLEP) 8. In relation to zoning and permissibility of the Proposed Development, the Site is situated within Zone C4 Environmental Living and Zone C2 Environmental Conservation pursuant to the BLEP, with the Proposed Development isolated to that part of the Site in Zone C4 Environmental Living. Development for the purpose of a dwelling house is permissible with consent in Zone C4 Environmental Living. 9. The Site is subject to a maximum height of buildings of 5.5m pursuant to the Height of Buildings Map referred to in cl 4.3 of the BLEP. I am satisfied that the Proposed Development does not exceed 5.5m height of building development standard as evidenced by the spot levels on Drawing 01 dated 14 March 2023. 10. Clause 4.4A of BLEP provides a development standard for site coverage and landscaping. The Proposed Development complies with the requirements of this cl as shown on Drawing 10 dated 14 March 2023. 11. The Site is in the flood planning area which attracts the jurisdictional prerequisite provisions in cl 5.21 of the BLEP. The Court is satisfied as to the matters listed in cl 5.21(2) of the BLEP and considers the matters in cl 5.21(3) of the BLEP on the basis of the Flood Impact Assessment filed on 3 February 2023. 12. The Site is partly environmentally sensitive land for the purposes of cl 6.1 of the BLEP. The Court is satisfied as to the relevant matters listed in cl 6.1(2) of the BLEP on the basis of the amended plans, documents accompanying the development application and proposed conditions of consent. 13. The Site contains land mapped as "Protected Area – Slope Constraint Area" on the Natural Resources – Land Map referred to in cl 6.4 of the BLEP. The Court is satisfied as to the matters listed in cl 6.4(3) of the BLEP based on the plans and documents submitted with the development application and the proposed conditions of consent. In particular, to comply with cl 6.4(3)(d) of the BLEP the Applicant relies on the Geotechnical Report dated 17 March 2023 prepared by JL Geotechnical and filed 17 March 2023 relied on by the Applicant and which satisfies the requirement that the soil characteristics and structural elements of the land are suitable for the Proposed Development. 14. The Site contains land mapped as "Protected Area – Riparian Land" and "Protected Area – Watercourses" on the Riparian Lands and Watercourses Map referred to in cl 6.8 of BLEP. The Respondent has considered the matters in cl 6.8(3) of the BLEP in its merit assessment of the Proposed Development. The Court is satisfied that the Proposed Development is designed, sited and will be managed to avoid any significant adverse environmental impact as required by cl 6.8(4)(a) of the BLEP based on the plans and documents submitted with the development application and the proposed conditions of consent. 15. The Court is satisfied as to the matters listed in cl 6.9(2) of the BLEP relating to stormwater management based on the plans and documents submitted with the development application and the proposed conditions of consent. 16. The Site contains land mapped as "Protected Area – Escarpment" on the Scenic and Landscape Values Map referred to in cl 6.12 of the BLEP. The Court is satisfied as to the matters listed in cl 6.12(3) of the BLEP based on the plans and documents submitted with the development application and the proposed conditions of consent and because there is no proposal to clear any native vegetation. 17. The Court is satisfied pursuant to cl 6.23 of the BLEP, that the relevant essential services will be available to the development when required based on the plans and documents submitted with the development application, and also the proposed conditions of consent. Specifically, in relation to cll 6.23(1)(c) and 6.23(4) of the BLEP, the Proposed Development will be connected to a reticulated sewer system by means of a private sewer line. 18. There are a number of provisions in the BLEP which a consent authority must consider during a merit assessment. I am satisfied that the Respondent has considered these provisions as follows: 1. Heritage conservation, cl 5.10. The Site is partly located within the Jamison Valley Heritage Conservation Area (HCA) and also abuts Item No. WF027, being an item of local heritage significance identified in Schedule 5 of BLEP. The Respondent has taken into consideration the possible impacts of the development on the heritage significance of the HCA and heritage item, and the Respondent is satisfied that there will be no such impact provided the agreed conditions of consent are imposed. 2. Earthworks, cl 6.14. The Respondent has considered the matters listed in cl 6.14(3) of BLEP in its assessment of the development application. 3. Character and Landscape, cl 6.17. The Respondent has considered the matters listed in cl 6.17(3) of BLEP in its assessment of the development application. 1. Sustainable Resource Management, cl 6.21. The Respondent has considered the matter raised in cl 6.21(2) of BLEP in its assessment of the development application. 1. 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. 2. 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. Notations: 1. The Court notes that: 1. pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000 that the development application is amended as agreed by the Respondent to rely on the following amended plans and document: Document Prepared By Drawing No Issue Date Proposed Site Analysis Plan Bio-Building Design Pty Ltd - B 14/03/2023 Proposed Site Plan & Sediment Control Fence Detail Bio-Building Design Pty Ltd 01 B 14/03/2023 Proposed Concept Stormwater Plan Bio-Building Design Pty Ltd 02 B 14/03/2023 Proposed Ground Floor Plan Bio-Building Design Pty Ltd 03 B 14/03/2023 Proposed Lower Ground Floor Plan Bio-Building Design Pty Ltd 04 B 14/03/2023 Proposed Section AA Bio-Building Design Pty Ltd 05 B 14/03/2023 Proposed Sections BB & CC Bio-Building Design Pty Ltd 06 B 14/03/2023 Proposed Northern & Southern Elevations Bio-Building Design Pty Ltd 07 B 14/03/2023 Proposed Eastern & Western Elevations Bio-Building Design Pty Ltd 08 B 14/03/2023 Proposed Carport Plan, Section & Elevations Bio-Building Design Pty Ltd 09 B 14/03/2023 Proposed Site Coverage Calculations Bio-Building Design Pty Ltd 10 B 14/03/2023 Proposed Landscape Concept Plan Bio-Building Design Pty Ltd 11 B 14/03/2023 Proposed Concept Landscape Plant List Bio-Building Design Pty Ltd 12 B 14/03/2023 Proposed Construction & Waste Management Plan Bio-Building Design Pty Ltd 13 B 14/03/2023 Proposed Front Perspective View Bio-Building Design Pty Ltd 14 B 14/03/2023 Document Prepared By Date BASIX Certificate No. 1218331S_05 Bio-Building Design Pty Ltd 13 March 2023 Geotechnical Report JL Geotechnical 17 March 2023 1. The amended plans and documents have been filed with the Court on 16 March 2023 except the Geotechnical Report which was filed with the Court on 17 March 2023. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development Application No. X/1094/2021 for the construction of a part 1, part 2 storey dwelling house and associated structures on the land at 40 Wilson Street, Wentworth Falls, is determined by the grant of consent subject to the conditions of consent annexed hereto and marked "A". ………………………. E Espinosa Commissioner of the Court Annexure A (281998, 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: 22 March 2023