Land and Environment Court New South Wales Medium Neutral Citation: Villar v Blue Mountains City Council [2019] NSWLEC 1129 Hearing dates: Conciliation conference on 22 March 2019 Date of orders: 02 April 2019 Decision date: 02 April 2019 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [13] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders Legislation Cited: Blue Mountains Local Environment Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) Texts Cited: Blue Mountains Development Control Plan 2015 Category: Principal judgment Parties: Diego Villar (Applicant) Blue Mountains City Council (Respondent) Representation: Solicitors: D Briggs, DG Briggs & Associates (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent) File Number(s): 2018/315571 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal by Blue Mountains City Council (hereafter the Council) of Development Application (DA) X/1285/2017, which seeks to construct attached dual occupancy dwellings, and subsequent Torrens title subdivision of one lot into two lots, each containing a dwelling house, on Lot 4 DP 1228784, also known as 7 Nightingale Drive, Blaxland. 2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (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 22 March 2019. I presided over the conciliation conference. There were no objections heard at this conciliation, although it is acknowledged that two submissions were received by the respondent during the notification period. The issues raised by these objectors, that relate to design and amenity impacts, were addressed by the parties in consideration of the proposed development. 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. This decision is to uphold the appeal and grant consent to DA X/1285/2017 with conditions. 5. Pursuant to 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 DA X/1285/2017 under appeal with conditions. 6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: Blue Mountains Local Environment Plan 2015 (BMLEP 2015); Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SREP 1997); and Blue Mountains Development Control Plan 2015 (BMDCP 2015). 7. With regards to the BMLEP 2015, the parties have assessed that the proposed development does not contravene any development standards and specifically resolves the contentions as follows: 1. Clause 2.3 - the site is located within an R2 Low Density Residential zone. The proposed dual occupancy development with Torrens title subdivision is permissible in the zone and is not inconsistent with the zone objectives. 2. Clauses 4.3 and 4.4 – based on the further supporting information, the proposed development complies with height and floor space ratio (FSR) standards. 3. Clause 6.17 – the compliance with height, FSR and minimum lot size together with amended plans to address presentation to the street and adjoining developments provides a development consistent with the established character of the area, and which satisfies the objectives for character and landscape. 1. The parties agree that there is no inconsistency with the BMLEP 2015 and the SREP 1997. 2. Based on the amended plans and supporting documents, the contentions that relate to the controls as specified in the BMDCP 2015 are resolved to the satisfaction of the parties, specifically for private open space (F1.1.1), solar access (F1.1.4), adaptability (3.3.2), excavation and water quality (B2.4 B3.2.2, and C6.1.3) as they relate to dual occupancy dwellings. 3. The potential for amenity impacts raised by adjoining neighbours have been considered and addressed to the satisfaction of the parties through screening and reduction in door openings to adjoining properties. There are no adverse amenity impacts as a result of the proposed development that do not satisfy the standards and controls of the BMLEP 2015 and BMDCP 2015, respectively. 4. I am satisfied that there are no jurisdictional impediments to this agreement and that the DA based on the amended plans with supporting documents and provided for in the conditions of consent, satisfies the requirements of s 4.15(1) of the EPA Act 1979. 5. 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. 6. The Court orders: 1. The Applicant is granted leave to rely on the following amended plans: Document Prepared by: Drawing No Issue Date Site Analysis Plan Villar Architect DA1702-01 F 7/02/2019 Site & Floor Plans Villar Architect DA1702-02 F 7/02/2019 Concept Cut & Fill Plan; Erosion & Sediment Control Plan Villar Architect DA1702-03 F 7/02/2019 Elevations & Sections Plan Villar Architect DA1702-04 G 25/02/2019 Area Calculations, GFA Calculations & BASIX commitments Villar Architect DA1702-05 G 25/02/2019 Driveway Plan & Cross Sections Villar Architect DA1702-06 D 6/12/2018 Post Adaptation Plan Villar Architect DA1702-07 E 21/02/2019 Plan of subdivision GB Meyer & Associates Surveyors 2-17/9 - 27/02/2019 1. The appeal is upheld. 2. Development Application No. X/1285/2017, for the construction of an attached dual occupancy and subsequent Torren title subdivision to create 2 lots each containing a dwelling house, on the land at 7 Nightingale Drive, Blaxland (Lot 4 DP 1228784) subject to the conditions of consent annexed hereto and marked "A". ………………………. Sarah Bish Commissioner of the Court Annexure A (309 KB, pdf) ********** 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 April 2019