Redbank United Pty Ltd v Blue Mountains City Council [2023] NSWLEC 1295

Land and Environment Court New South Wales

Medium Neutral Citation: Redbank United Pty Ltd v Blue Mountains City Council [2023] NSWLEC 1295 Hearing dates: 17 and 18 June 2021; 8 July 2021 Date of orders: 19 June 2023 Decision date: 19 June 2023 Jurisdiction: Class 1 Before: Adam AC Decision: The Court orders: (1) The appeal is dismissed. (2) Development application no. X/391/2020 for the erection of a single dwelling house and associated carport; installation of a 20,000 litre rainwater tank; construction of a driveway: construction of a vehicular access road on the unformed and unconstructed public road, including a watercourse crossing; clearing of trees and other vegetation and earthworks to facilitate the development of Lot 7 and the public road at 11-17 Surrey Street, Bullaburra, NSW 2784 is determined by refusal of consent. (3) The exhibits are retained. Catchwords: APPEAL – deemed refusal – application for construction of single dwelling and detached carport with driveway to road to be constructed by Applicant on road reserve – need to take into account aims of Plan (cl 1.2) of the Blue Mountains Local Environmental Plan 2015 – importance of Special Local Provisions of the Blue Mountains Local Environmental Plan – did the Contentions address 'real' issues - information requested by Respondent and required in order to make assessment not, or inadequately, provided – was the calculation of the area of vegetation to be impacted by the proposed development correct – was the area of vegetation to be cleared such as to trigger entry into the Biodiversity Offsets Scheme (BOS) – was a Biodiversity Assessment Report (BDAR) required - can deficiencies in data availability be satisfied by deferred commencement conditions and operational conditions Legislation Cited: Biodiversity Conservation Act 2016, Sch 6, ss 6.10, 7.2, 7.7 Biodiversity Conservation Regulation 2017, Pt 6, cl 7.2 Blue Mountains Local Environmental Plan 2015, cll 1.2, 2.1, 3.7, 4.6, 6.8, 6.9, 6.10, 6.14, 6.17, 6.23, 7.2 Civil Procedures Act 2005, s 56 Environmental Planning and Assessment Act 1979, ss 4.14, 8.7 Environmental Protection and Biodiversity Conservation Act 1979 (Cth) Land and Environment Court Act 1979, ss 34, 34AA Sydney Regional Environmental Plan No 20 –Hawkesbury – Nepean River (No 2-1997), cll 3, 4, 6, Pt 2 Water Management Act 2000 Cases Cited: Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Doyle v Hornsby Shire Council [2015] NSWLEC 1576 Doyle v Hornsby Shire Council [2018] NSWLEC 45 Doyle v Hornsby Shire Council [2020] NSWLEC 1155 Texts Cited: Blue Mountains Development Control Plan 2015 Matthew F. Adkins, "A burning issue: using fire to accelerate tree hollow formation in Eucalyptus species" (2006) 69 Australian Forestry 107-113 P Gibbons and D B Lindenmayer, Conserving Hollow-dependant fauna in Timber-production Forests, Environmental Heritage Monograph Series No. 3 (1997, NSW National Parks and Wildlife Service, Sydney) Rachelle Carritt, National Tree Hollows: Essential for Wildlife, Conservation Management No 5 (1999, NSW National Parks and Wildlife Service, Sydney) Category: Principal judgment Parties: Redbank United Pty Ltd (Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: J Doyle (Solicitor) (Applicant) A Seton (Solicitor) (Respondent)