Land and Environment Court New South Wales Medium Neutral Citation: Todarello v Blue Mountains City Council [2019] NSWLEC 1043 Hearing dates: Conciliation conference on 30 January 2019 Date of orders: 07 February 2019 Decision date: 07 February 2019 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [17] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Blue Mountains Local Environmental Plan 1991 Blue Mountains Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Local Government Act 1993 Roads Act 1993 Category: Principal judgment Parties: Antonio Todarello (First Applicant) Maria-Theresa Todarello (Second Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: G George (Applicant) Solicitors: Reimer Winter Williamson Lawyers (Applicant) T Cork, McPhee Kelshaw (Respondent) File Number(s): 2017/358563 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the deferred commencement partial consent by Blue Mountains City Council of Development Application (DA) X/1109/2015, which seeks the removal of unauthorised works including hardstand, new water treatment systems (waste and stormwater), and an increase in existing retail/supply/display areas on Lot 9 DP 656879, also known as 731-733 Great Western Highway, Faulconbridge (the site). 2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to s 4.16 of the EPA Act 1979. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 30 January 2019. I have presided over the conciliation conference. There were no objections raised by third parties at this conciliation. 4. Following the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA X/1109/2015 with conditions. 5. Under s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to the DA with conditions. 6. The parties stated that there were no jurisdictional impediments to the making of this agreement. They identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: EPA Act 1979, specifically Part 4, Division 4.11, ss 4.65 to 4.70 (existing use); Environmental Planning and Assessment Regulation 2000 (EPA Reg 2000), specifically clls 39 to 46; Roads Act 1993, specifically s 128 (concurrence); Local Government Act 1993 (LG Act 1993), specifically s 68; Blue Mountains Local Environmental Plan 2015 (BMLEP 2015), specifically cl 1.8A (savings provision); and Blue Mountains Local Environmental Plan 1991 (BMLEP 1991), specifically cl 6.4 for slope constraints areas and cl 6.9 as it relates to the new waste water and stormwater management systems, respectively. 7. The proposed development has the benefit of existing use, pursuant to Part 4, Division 4.11, s 4.65 of the EPA Act 1979. The development under appeal is located on land associated with the existing use, pursuant to cl 42 of the EPA Reg 2000. 8. The site is adjacent to a classified road, and therefore pursuant to s 128 of the Roads Act 1993, any works associated with this road require the Roads and Maritime Services (RMS) concurrence. RMS issued concurrence for the DA on 17 December 2915. 9. The site is located within the E3 Environmental Management zone, according to the BMLEP 2015. The DA was submitted 30 October 2015, therefore benefits from the savings provisions in cl 1.8A of the BMLEP 2015, and assessed pursuant to the provisions of BMLEP 1991. 10. The parties agreed the extent the concrete pad at the rear of the site, as shown in the sketch plan attached to the conditions of consent, which is sufficient to allow proper functioning of the site and in particular truck movements. Swept path analysis indicates that the areal extent of the concrete pad will allow truck movements and unloading of materials associated with the existing use. The dimension of the pad, as agreed, also allows landscaping along the rear of the site, defined as 'Area B' in the conditions of consent. The adjustment to the concrete pad is therefore consistent with the requirements as set out in cl 41(2) of the EPA Reg 2000. 11. The parties have agreed landscaping in areas defined as 'A', 'B', 'C' and 'D', which satisfies the objectives of the E3 zone and requirements of cl 6.7 of the BMLEP 1991. Further to this, the conditions of consent require an amended landscape plan to show the agreed areas and design of landscaping that achieve the objectives as specified in the consent. 12. The proposed new waste water management system with onsite treatment/holding and pump out of waste at regular intervals, is agreed by the parties to satisfy the requirements of cl 6.4 of the BMLEP 1991 (and BMLEP 2015), and also satisfies cl 7.17(3)(e), to reduce potential impact to adjoining properties. In addition, the parties explained that the new stormwater management system satisfies cl 6.9 of the BMLEP 1991. The location of these water management systems does not compromise the landscaping objectives of the conditions of consent or the zone objectives. The parties agree that the proposed waste water management system requires approval, pursuant to s 68 of the LG Act 1993, identified as a condition of consent. 13. The parties specified that all works as agreed, including extent of the concrete pad and landscaped areas, and design of water management systems are contained within the site, consistent with the requirements for existing use rights, pursuant to the EPA Act 1979. 14. The parties agreed a site plan is required as a condition of consent to show all agreed works. 15. I am therefore satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act 1979. 16. 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 1979 to dispose of the proceedings in accordance with the parties' decision. 17. The Court orders: 1. The Appeal is upheld. 2. Development consent is granted in respect of development application X/1109/2015 (dated 28 October 2015) on the conditions set out in document that is attached to this agreement and marked "BMCC 1". 3. No cost orders are made. ………………………. S Bish Commissioner of the Court BMCC 1 ******** 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. Decision last updated: 11 February 2019