Land and Environment Court of New South Wales CITATION : Heasman v Blue Mountains City Council [2006] NSWLEC 115 Applicant: Ronald Heasman PARTIES : Respondent: Blue Mountains City Council FILE NUMBER(S) : 11039 of 2004 CORAM: Roseth SC KEY ISSUES: Development Application - Subdivision :- ecological issues connected with stormwater runoff DATES OF HEARING: 12/12/2005, 13/12/2005, 21/12/2005 and 10/03/2006 DATE OF JUDGMENT: 03/10/2006 Applicant: LEGAL REPRESENTATIVES: Mr C McEwen, SC, Mr S Berveling, barrister Respondent: Mr T Cork, solicitor of McPhee Kelshaw JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 10 March 2006 11039 of 2004 Ronald Heasman v Blue Mountains City Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by the Blue Mountains City Council (the council) of a development application to subdivide the land under community title into 46 lots (43 residential lots and 3 community lots) and to erect a dwelling on 42 of the residential lots, on lots 1, 2 and 4 DP 593545, known as 21 Stuarts Road, Katoomba. The site 2 The site is between Stuarts and Wellington Roads, west of Burrawang Street, about 1.8km from the Katoomba train station. It has an area of 12.49ha and contains bushland, disused pasture, a dam and a watercourse. The site slopes down from Stuart Road to form a valley at the centre through which a watercourse runs in a southeasterly direction. The watercourse is an unnamed tributary of Kedumba Creek, which is 200m to the east of the site. 3 Adjoining the site to the northwest and south is low-density suburban development. The Katoomba Golf Course lies to the south of the site. The proposal 4 The applicant proposes to subdivide the land under community title into 46 lots (43 residential lots and 3 community lots) and to erect a dwelling on 42 of the residential lots. The development is divided into three sections: Precincts A, B and C. Lot A8 is a residential lot of 5,032m2, which is proposed for a six-lot subdivision but presented as a single lot because of the uncertainty of access from Burrawang Road. The applicant indicated that when that access becomes available, it intends to lodge a development application reinstating the original six-lot subdivision. Relevant planning controls 5 Local Environmental Plan 4 (LEP 4) zones the site Residential 2(a1), a zone that permits subdivision and detached dwellings. The minimum allotment size is 700m2 for ordinary allotments and 1,100m2 for hatchet shaped allotments. The minimum frontage is 18.5m. 6 Local Environmental Plan 1991 (LEP 91) zones the site Environmental Protection. LEP 91 identifies land with a slope in excess of 33% as Protected Area – Environmental Constraints Area. 7 Local Environmental Plan 2005 (LEP 05) zones the site Living Bushland conservation and Environmental Protection – General Zone. The LEP designates part of the site Protected Area – Slope Constraint Area, Protected Area – Ecological Buffer Area, and Protected Area – Water Supply Catchment. LEP 05 was made after the lodgement of the development application. It contains a savings clause to the effect that the LEP needs to be considered as if it were exhibited but not made. 8 The Blue Mountains Better Living Development Control Plan (the Better Living DCP) also affects the site. The issues 9 The council tendered its second revised Statement of Issues containing 17 issues. However, after the applicant deleted several allotments (thus increasing the width of buffer zones), agreed to various additional conditions and changed the location and nature of stormwater treatment devices, the experts were able to reach agreement on all issues. While this did not lead to consent orders, the council nevertheless agreed that the proposal meets all its objections and requirements. The objectors' concerns 10 The Court heard the evidence of Ms M Walker, who lives at 15 Narrow Neck Road at the intersection with Stuart Road, said that her main concern was the additional traffic using the intersection, which is already dangerous. Mr M Nguyen, an engineer with the council submitted evidence to the effect that · The intersection is unsafe; · There are currently 12 peak hour vehicle trips at the intersection. As a result of the development this will increase to 27. · The intersection should be upgraded. 11 Condition 66 of this consent requires the applicant to undertake the upgrading works. The applicant accepts the condition. 12 Mr W. Piper and Mrs Piper, who own 49 and 51 Stuart Road and live in one of the properties, said that their main concern was the closeness (about 2m) of the dwellings on the allotments abutting their rear yard. The applicant offered to preserve a minimum distance of 6m between dwellings and the rear fence on all allotments (with one justifiable exception) where the proposed development abuts an existing allotment. The requirement is reflected in Condition 3A. The expert witnesses 13 The Court heard the evidence of five experts, of whom one was appointed by the Court. · Mr M Ball, a town planner retained by the applicant; · Ms N Cavanagh, a town planner employed by the council; · Mr P Mehl, a consulting civil engineer retained by the applicant; · Dr P Bacon, a natural resource scientist retained by the council; and · Mr R Morse, an environmental scientist appointed by the Court, 14 As I indicated above, discussions between the experts led to complete agreement between them. The agreement is reflected in the amended drawings as well as in the conditions of consent. 15 The parties appeared before me on 10 March 2006 stating that there were no outstanding issues and that I should make orders in chambers approving the application. Orders 1. The appeal is upheld. 2. Development application subdivide the land under community title into 46 lots (43 residential lots and 3 community lots) and to erect a dwelling on 42 of the residential lots on lots 1, 2 and 4 DP 593545, known as 21 Stuarts Road, Katoomba is determined by the granting of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 28, A, J, K, L and M. __________________ Dr John Roseth Senior Commissioner 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.