Aesthete No. 9 Pty Limited v Blue Mountains City Council (No 2) [2024] NSWLEC 1550

Land and Environment Court New South Wales

Medium Neutral Citation: Aesthete No. 9 Pty Limited v Blue Mountains City Council (No 2) [2024] NSWLEC 1550 Hearing dates: 24-25, 31 August 2022; 27 October 2022; 3 November 2022; 1 December 2022; 22 March 2023; 18 May 2023; 20-22 December 2023; 23 January 2024; 27 February 2024; 8 March 2024; 28 March 2024 Date of orders: 09 September 2024 Decision date: 09 September 2024 Jurisdiction: Class 1 Before: Adam AC Decision: The Court orders: (1) The appeal is upheld. (2) Modification application SM/45/2015B to modify the development consent granted for subdivision of 54 Luchetti Avenue, Hazelbrook in SM/45/2015A in regard to a number of engineering and vegetation management changes is approved subject to conditions in Annexure A. (3) The Applicant is to file: (a) the revised version of the Vegetation Management Plan approved by the Respondent under Condition 7 of the development consent. (b) the amended Cut and Fill Plan under Condition 1B of the development consent. Catchwords: APPEAL – modification application – deemed refusal – 21-lot residential Torrens title subdivision and associated infrastructure work – Bush Fire Safety Authority (BFSA) – requirement to maintain site as an Inner Protection Area (IPA) – Vegetation Management Plan (VMP) – revision of VMP – protection of environment during construction phase of subdivision – future individual lots to meet IPA requirements – are building envelopes to be levelled and batters provided prior to sale – public positive covenant under s 88E of the Conveyancing Act 1919 – conditions – Council to approve the revised VMP Legislation Cited: Biodiversity Conservation Act 2016 Conveyancing Act 1919, s 88E Environmental Planning and Assessment Act 1979, s 4.15 Land and Environment Court Act 1979, ss 13(6), 34, 34C Blue Mountains Local Environmental Plan 2015, cl 1.2 Environmental Planning and Assessment Regulation 2021, s 113 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 [2023] NSWLEC 1711 Aesthete No. 9 Pty Limited v Blue Mountains City Council [2024] NSWLEC 1222 MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 Winifred West Schools Ltd v Wingecaribee Shire Council [2024] NSWLEC 1799 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 Texts Cited: Blue Mountains City Council, Vegetation Management Plan Guide (February 2016) Blue Mountains Development Control Plan 2015 Category: Principal judgment Parties: Aesthete No. 9 Pty Limited (Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: A Pickles SC and F Amirbeaggi (Solicitor) (Applicant) T Cork (Solicitor) (Respondent)