McKenzie v Blue Mountains City Council [2019] NSWLEC 1459

Land and Environment Court New South Wales

Medium Neutral Citation: McKenzie v Blue Mountains City Council [2019] NSWLEC 1459 Hearing dates: Conciliation conference on 23-24 September 2019 Date of orders: 27 September 2019 Decision date: 27 September 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 Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Texts Cited: Blue Mountains Development Control Plan 2015 Category: Principal judgment Parties: David McKenzie (First Applicant) Lynn McKenzie (Second Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: J Reid (Applicants) A Seton (Solicitor) (Respondent)

Solicitors: Crennan Legal Pty Ltd (Applicants) Marsdens Law Group (Respondent) File Number(s): 2019/14178 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against a (partial) refusal of Development Application (DA) X/851/2018 by Blue Mountains City Council (hereafter the Council) for an entertainment wall, enclosed bathroom and three car garage with attached carport on Lot 2 DP 856635, also known as 18-20 Old Bathurst Road, Woodford (hereafter the site). 2. The proposed development relating to the entertainment wall and enclosed bathroom was approved in the partial consent of DA X/851/2018 by Council on 27 November 2018. The structure associated with the garage and carport was however refused as part of this DA. 3. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979) for the refused part of the DA. 4. The Court agreed to a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 23 September 2019. I presided over the conciliation conference. There were no objectors heard at this conciliation. 5. At the conciliation conference, the applicant sought to amend the plans to reduce the height and size of the garage, and amend the landscaping. Based on these amended plans and conditions of consent, 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/851/2018 with conditions. 6. 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/851/2018 under appeal with conditions. 7. 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 Environmental Plan 2015 (BMLEP); and Blue Mountains Development Control Plan 2015 (BMDCP). The parties agree that the amended plans and conditions of consent relate to the merits of the proposal. 8. The parties agree that the relevant provisions of the BMLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The structures on the site are located within the E3 Environmental Management zone and proposed landscaping is within the E2 Environmental Conservation zone. The proposed development is permissible in the respective zones and as proposed is not inconsistent with the zones objectives or relevant development standards. The site is used for residential purposes. 9. The parties agree that the requirements of the BMDCP are complied with, considering the amended plans and conditions of consent. 10. Based on the amended plans and supporting documents to the DA, the contentions are resolved to the satisfaction of the parties. The issues raised by an objector during the notification period are resolved to the parties' satisfaction. 11. I am satisfied that there are no jurisdictional impediments to this agreement and that DA X/851/2018 should be granted for the garage with associated functions and carport based on the amended plans and conditions of consent, as it satisfies the requirements of s 4.15(1) of the EPA Act 1979. 12. 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. 13. The Court orders: 1. The Applicant is granted leave to rely on the following amended plans and documentation: DWG NO. DESCRIPTION PREPARED BY REV DATE 0401.30-020 Site Plan (As amended in red) Plan it Out A 10/08/2018 LP01 Shed Plans and Elevations Moir Landscape Architecture C 23/09/2019 LP00 Cover Sheet Moir Landscape Architecture B 18/09/2019 LP01 Revegetation Plan Moir Landscape Architecture B 18/09/2019 LP02 Details & Schedule Moir Landscape Architecture B 18/09/2019 LP03 Specification Moir Landscape Architecture B 18/09/2019