Willoughby v Blue Mountains City Council [2019] NSWLEC 1033

Land and Environment Court New South Wales

Medium Neutral Citation: Willoughby v Blue Mountains City Council [2019] NSWLEC 1033 Hearing dates: Conciliation conference on 17 December 2018 Date of orders: 29 January 2019 Decision date: 29 January 2019 Jurisdiction: Class 1 Before: Morris AC Decision: See orders at [8] below Catchwords: DEVELOPMENT APPLICATION: dwelling house; character Legislation Cited: Blue Mountains Local Environmental Plan 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Mark Willoughby (First Applicant) Michelle Willoughby (Second Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: S Nash (Applicants)

Solicitors: Grassi & Associates (Applicants) A Seton, Marsdens Law Group (Respondent) File Number(s): 2018/168969 Publication restriction: No

Judgment 1. COMMISSIONER: Development Application No. X/878/2017 was lodged by the applicants with Blue Mountains City Council on 13 September 2017 seeking consent for demolition of existing site improvements and construction of a 2 storey dwelling house with attached two car garage and a detached three car garage with loft studio to the rear. The council refused consent on 1 December 2017. 2. The applicant submitted an application for review under s 8.2 of the Environmental Planning and Assessment Act 1979 on 30 April 2018. That application included amended plans which deleted the detached three vehicle garage and loft space; provided further detail regarding floor to ceiling height for the dwelling and further detailed landscape plan. The council refused that application on 1 June 2018. This appeal is filed under the provisions of s 8.7 against that determination. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 December 2018. I have presided over the conciliation conference. 4. 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. The decision agreed upon is to uphold the appeal and grant consent to the application. The agreement was based on amended plans and additional information. Those plans and details were agreed by the experts to address the contentions in the case. 5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 6. I have formed this state of satisfaction because the details now before the Court allow proper assessment of the proposal and, based on the advice of the council's experts, the issues raised in the contentions in the case have been resolved. That is achieved through the redesign of the dwelling to ensure its character is reflective of the character of the locality and therefore consistent with the provisions of relevant provisions of the Blue Mountains Local Environmental Plan 2005. 7. 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. 8. The Court orders: 1. The Applicant is granted leave to rely on the following amended plans: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. X/878/2017, for the demolition of the existing dwelling house and construction of a two (2) storey dwelling house with attached two car garage at 26 Barnet Street, Glenbrook (Lot 37 DP 6497) subject to the conditions of consent annexed hereto and marked "A". ……………………….. Sue Morris Acting Commissioner of the Court Annexure A s34 Plans