Land and Environment Court New South Wales Medium Neutral Citation: Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 1178 Hearing dates: Conciliation conference on 5 April 2019 Date of orders: 16 April 2019 Decision date: 16 April 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: See orders at [12] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Aesthete No. 9 Pty Limited (Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) Solicitors: Yates Beaggi Lawyers Pty Ltd (Applicant) T Cork, McPhee Kelshaw (Respondent) File Number(s): 2018/122321 Publication restriction: No Judgment 1. COMMISSIONER: Aesthete No.9 Pty Limited (the Applicant) has appealed the decision of Blue Mountains City Council (the Respondent) to refuse its application modify development consent S/45/2015, granted for the subdivision of land from one lot into seventeen lots (the development consent) at Lot 1 in DP 9581000 in Hazelbrook (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court's jurisdiction. 3. These proceedings are determined pursuant to the provisions of s 4.55(2) of the EP&A Act. 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which has been held on 5 April 2019, and I have presided over the conciliation conference. 5. 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 involved the Court upholding the appeal and granting consent to the Applicant's modification application, subject to conditions. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties' decision if the Parties' decision is a decision that the Court could have made in the proper exercise of its functions. The Parties' decision involves the Court exercising the function under s 4.55 of the EP&A to grant consent to the modification application. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties identified the jurisdictional prerequisites of relevance in these proceedings to be: 1. the provisions of s 4.55(2) of the EP&A Act which require that a consent authority, or the Court on appeal,: 1. is satisfied that the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified (if at all); 2. consult with the relevant Minister, public authority or approval body (within the meaning of Div 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent; 3. has notified the application in accordance with s 4.55(2)(c)(i) and s 4.55(2)(c)(ii) of the EP&A Act; 4. has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be; 1. the provisions of s 4.55(3) of the EP&A Act, which require that a consent authority, or the Court on appeal,: 1. in determining an application for modification of a consent, must take into consideration such of the matters referred to in s 4.15(1) of the EP&A Act as are of relevance to the development the subject of the application; and 2. take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. 1. The Parties have explained how the jurisdictional prerequisites have been satisfied, as follows: 1. in relation to the requirements of s 4.55(2)(a) of the EP&A Act,: 1. the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted because: 1. the development consent that is the subject of the modification application in this appeal was for a residential subdivision of one lot into seventeen lots, on a site of an areas of 3.25Ha, with associated draining and civil works; 2. under the modification application, the consent would remain a consent for a residential subdivision, on a site with an area of 3.25Ha, with associated draining and civil works, although the subdivision would be for the subdivision of one lot into twenty-one lots; 3. the essence of the development consent as originally granted would remain substantially the same, from the both quantitative and qualitative perspectives, notwithstanding the increased intensity of development that would result from the modification to the layout of lots at the western end of the Subject Site; 1. the consent as originally granted has not previously been modified; 1. in relation to the requirements of s 4.55(2)(b) of the EP&A Act, the Parties confirmed that the NSW Rural Fire Service (RFS) has been consulted in relation to conditions imposed as a consequence of a concurrence issued by it and through the provision of general terms of approval. They further confirmed that the requirements of s 4.55(2)(b) of the EP&A Act had been satisfied through the issue of an authority by the NSW RFS following the provision of a bushfire assessment report that had been prepared by a suitably qualified bushfire consultant; 2. in relation to the requirements of s 4.55(2)(c) of the EP&A Act, the Parties confirmed that the modification application had been appropriately notified in accordance with the provisions of this section; 3. in relation to the requirements of s 4.55(2)(d) of the EP&A Act, the Parties advised that one submission received in response to the notification of the proposed modification application, and that this had been considered by them in reaching their agreement in this appeal. 4. in relation to the provisions of s 4.55(3) of the EP&A Act, the Parties confirmed that: 1. consideration had been given to the matters referred to in s 4.15(1) of the EP&A Act, and they were satisfied that the provisions of that section had been satisfied, including in relation to the potential impacts of the proposed development, in particular in relation to ecology and stormwater. They added that these potential impacts had been assessed by experts as acceptable, or had been made the subject of amended conditions of consent, attached hereto at Annexure 'A', and that these were acceptable to the Parties; 2. the reasons given by the consent authority for the grant of the consent that the Applicant seeks to modify have been taken into consideration, including the zoning of that part of the Subject Site that is the subject of the modification application, and which had been changed since the original grant of consent . The Parties agreed that these had facilitated resolution of contentions in relation to the modification application. 1. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(2) of the EP&A Act have been so satisfied. 2. I am further 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, for reasons provided at [8] and [9]. 3. 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. 4. The Court orders: 1. the appeal is upheld; 2. approval is granted for the modification of development application S/45/2015 (dated 15 April 2017) as set out conditions of consent attached as Annexure 'A'. …………………………….. M Chilcott Commissioner of the Court Annexure A ********** 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: 04 June 2019