Aesthete No.9 Pty Limited v Blue Mountains City Council [2023] NSWLEC 1711

Land and Environment Court New South Wales

Medium Neutral Citation: Aesthete No.9 Pty Limited v Blue Mountains City Council [2023] NSWLEC 1711 Hearing dates: 24-25, 31 August 2022; 17 October 2022; 3 November 2022; 1 December 2022; 22 March 2023; 18 May 2023 Date of orders: 24 November 2023 Decision date: 24 November 2023 Jurisdiction: Class 1 Before: Adam AC Decision: The Court orders: (1) The parties are directed to address the matters raised in this judgment and provide to the Court an agreed set of modified conditions that will form Annexure A, and a consolidated set of conditions that will form Annexure B in Word format on or before close of business on 15 December 2023. An electronic copy of any relevant documents referred and attached to the consent is to be provided to the Court on or before close of business on 15 December 2023. (2) The Applicant is directed to submit a revised version of the Vegetation Management Plan (VMP), and to provide an electronic copy of the same, to the Court before close of business on 15 December 2023. (3) The parties are directed to provide by 15 December 2023 either an agreed submission or competing submissions on the resolution of Condition 10 (refer to [295] of the judgment). (4) Liberty to reapply if Order (1) is not met. Catchwords: APPEAL – modification application – deemed refusal – 21-lot residential Torrens title subdivision and associated infrastructure work – whether proposed development substantially the same as that originally approved – site is bush fire prone – bush fire safety authority (BFSA) issued – whole site to be managed as an Asset Protection Zone (APZ) and categorised as an Inner Protection Area (IPA) – whether implementation of requirements specified in BFSA compatible with maintaining the bushland character and biodiversity of the site – redesigned drainage system – whether all of drainage system should be constructed by Applicant before subdivision certificate is issued – how many trees can be retained – requirement for vegetation management plan (VMP) – when should VMP be prepared – conditions Legislation Cited: Biodiversity Conservation Act 2016, s 1.5 Blue Mountains Local Environmental Plan 1991, cll 6.3, 10.5, 34.1, Sch 3 Blue Mountains Local Environmental Plan 2015, cll 1.4, 1.8A, 2.6, 4.1E Blue Mountains Local Environmental Plan 2015 (Amendment No 8) Conveyancing Act 1919, s 88E Environmental Planning and Assessment Act 1979, ss 79C, 91, 102 (repealed); 4.15, 4.46, 4.55, 8.9 (current) Land and Environment Court Act 1979, ss 34, 34C Rural Fires Act 1997, ss 100B, 100F, 100G Standard Instrument (Local Environmental Plans Amendment (Land Use Zones) Order 2021 State Environmental Planning Policy No 1—Development Standards Uniform Civil Procedure Rules 2005, rr 36.16, 36.17 Cases Cited: Aesthete No.9 Pty Limited v Blue Mountains City Council [2017] NSWLEC 1199 Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 1178 Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 81 Aesthete No 9 Pty Limited v Blue Mountains City Council [2022] NSWLEC 1603 Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No.3) [2015] NSWLEC 75 Arrage v Inner West Council [2019] NSWLEC 85 BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Carstens v Pittwater Council (1999) 111 LGERA 1 Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Texts Cited: Blue Mountains Development Control Plan 2015 Franks, A & Franks, S 2011, Nest boxes for wildlife: A practical guide. Corrected edn. Bloomings Books Macquarie Dictionary, online NSW Rural Fire Service, Community Resilience Practice Notes 1/12, March 2012 ('Establishment of Easements for the Purpose of Asset Protection Zones') NSW Rural Fire Service, Planning for Bush Fire Protection 2006 NSW Rural Fire Service, Planning for Bush Fire Protection 2019 NSW Rural Fire Service, Standards for Asset Protection Zones, February 2014 Category: Principal judgment Parties: Aesthete No.9 Pty Limited (Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) T Cork (Solicitor) (Respondent)