Conway v Blue Mountains City Council [2019] NSWLEC 1537

Land and Environment Court New South Wales

Medium Neutral Citation: Conway v Blue Mountains City Council [2019] NSWLEC 1537 Hearing dates: Conciliation conference on 24 October 2019 Date of orders: 05 November 2019 Decision date: 05 November 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [22] 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 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Cases Cited: Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292 Williams v Blue Mountains City Council [2010] NSWLEC 92 Category: Principal judgment Parties: Vashti Elizabeth Conway (Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: I Pickles (Applicant) A Seton (Solicitor) (Respondent)

Solicitors: Yates Beaggi Lawyers Pty Ltd (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/43146 Publication restriction: No

Judgment 1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against Blue Mountains City Council's deemed refusal of Development Application X/1031/2018 seeking approval for a metal clad shed and rainwater tank at 17 Rock Wallaby Way, Blaxland, also known as Lot 1005 DP1160246. 2. The original application before the Court comprised a shed with a length of 18.344m, width of 9.199m, overall height of 3.511m and eave height of 2.7m and a total proposed area of 168.75m². It was not supported by Council in relation to contentions which included: non-compliance with certain statutory prerequisites (see discussion on cl 4.4B of Blue Mountains Local Environmental Plan 2015 ('LEP') below), at odds with the relevant E4 Environmental Living zone objectives in the LEP, bulk and scale, built form articulation and associated visual impact. Earlier contentions in regard to environmental sensitivity, heritage impact and bushfire protection had been resolved following expert input. 3. The matter was listed for hearing in the Court over two days (24-25 October 2019). At the conclusion of the site view on the first day of the hearing, where submissions from objectors were also heard, the matter returned to Court. On commencement of the hearing, I agreed to submissions from the parties for an adjournment (the possibility of which I had foreshadowed to objectors after advice from the parties in regard to their intention). The submissions from the parties indicated that the parties wished the Court to arrange a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ('LEC Act'). It was indicated that there were good prospects for agreement between the parties based on amended plans. 4. Subsequently conciliation was listed for later on the same day (24 October 2019) and I was delegated to preside. At the conciliation conference, the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 5. The agreement involved significant amendments to the original application. The amended plans show a shed dimensioned 9.2m x 10m, with a maximum height at the ridgeline of 3.569m. It was indicated that the shed floor level would be near flush at the lower (entry) level, meaning construction would involve some cut into the higher land to the south and nearest to the neighbours. 6. The parties' decision involved the Court granting leave for the amendment of the application, upholding the appeal and granting development consent to the development application, as amended, subject to conditions. 7. 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. 8. A first question is in regard to the Court's powers in regard to the amendment of a development application. This power is found at cl 55(1) of the Environmental Planning and Assessment Regulation 2000 ('Regulation'). It allows a development application to be "amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined". The power of a consent authority under the Regulation is available to the Court under s 39(2) of the LEC Act. In this instance I exercise this power mindful of the agreement of the parties to its use and the "beneficial" and "facultative" intentions of the provision at cl 55(1) (Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292 [7]-[10]). 9. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties advised that the proposal had been properly made and there were no jurisdictional considerations that would prevent the Court determining the appeal in accordance with the agreement. 10. A particular point of attention was cl 4.4B of the LEP which applies to the development site given its E4 Environmental Living zoning under the LEP. The clause's objective is to "prescribe the maximum size of land on which development is to be located for larger lots in response to the environmental capacity of the land", in short a "principal development area" or "PDA" (as described in the LEP) for such larger lots. Subclause 3 provides as follows: Development consent must not be granted for development on a lot to which this clause applies that has an area of at least 4,000 square metres unless the consent authority is satisfied that: (a) the development will be located within a principal development area (the PDA) that complies with this clause, and (b) the PDA will be appropriately sited on the lot, and (c) the development will be screened from view from outside the lot by the retention of existing vegetation or the planting of native vegetation on the lot. 1. Subclause 4 then goes on to describe certain prerequisites. 2. Subclause 5 then provides exclusionary provisions as follows: Despite subclause (3)(a), development consent may be granted to development on land to which subclause (3) applies that will not be located within a PDA that complies with this clause if: (a) the lot was created before the commencement of this Plan, and (b) the development is ancillary or incidental to a dwelling house that was erected before 27 December 1991, and (c) any vegetation that is required to be cleared is not located on environmentally sensitive land, and (d) the clearing of vegetation will be carried out on an area of less than 50 square metres, and (e) the total area of land that is required to be cleared and is outside the PDA is no more than 5% of the notional development area. 1. The parties provided evidence that each of the provisions at cl 4.4B(5) (a)-(e) of the LEP are satisfied. First, the parties evidenced the dates the lot was created and the date of the LEP commencement which showed that the lot was created prior to the commencement of the LEP. Second, the Council advised there was no doubt that the dwelling on the lot had been created well before 27 December 1991, notwithstanding more recent renovations. These first two points were indicated as matters of fact by the parties and are accepted. Third, the Joint Expert Report of the Planners ('JERP') in this matter, filed in the Court on 12 September 2019, says that the area to be cleared is not located on environmentally sensitive land (See JERP, p20, [3.1.2]). Fourth, the area to be cleared of vegetation was agreed as less than 50m², a finding agreed as obvious from the amending plans and survey which located existing vegetation. Fifthly, the JERP also indicated the land to be cleared is no more than 5% of the notional development area (ibid, p20, [3.1.5]). 2. There is a further point in regard to the LEP's cl4.4B(5)(b). First I note that proposed condition 16 of the consent provides as follows: "The shed is to be used as storage for a private car collection and other domestic equipment, including gardening tools. The building must not be used for habitable, commercial or industrial purposes, or adapted for use as such, without the prior consent of Council." 1. This condition relates to a point raised in objections from residents (heard at the on-site view prior to the matter turning to conciliation under s34 of the LEC Act). This point was in regard to whether the private car collection which would be stored in the shed was in fact associated with the existing tenants of the dwelling house occupying the lot. At the view, there was commentary from the applicant that the lot owner (rather than the tenant or occupant) was the owner of the private car collection that would be stored in the shed. It was submitted by the objector that, as such, the development would not in fact be "ancillary or incidental to a dwelling house". I note the submissions from the parties that development consents associate with the land (rather than owners or tenants as they may change over time), and further that the shed was also intended to be used for "domestic equipment, including gardening tools". I am satisfied that the development for which consent is proposed is ancillary or incidental to a dwelling house. 2. A further matter, relating to suggested encumbrances on the subject land, which was suggested in submissions from an objector to have the potential to constrain power, related to a prior decision of the Court relating to the land, which it was suggested I review. In Williams v Blue Mountains City Council [2010] NSWLEC 92 ('Williams v Blue Mountains'), Biscoe J made reference to objector concerns in regard to visual impact (see for example [11], [29]-[33], [40]). Having reviewed what I saw as the pertinent findings, I see no constraint on power to grant consent, nor in regard to merits, in Williams v Blue Mountains. I note that Justice Biscoe's commentary at [30], referencing a restriction on the use of the land, was in regard to subdivision (ie rather than development on already subdivided land such as is proposed here). 3. Further in regard to jurisdiction, the parties advise that: 1. The proposal is permissible on the site and complies with development standards contained in the LEP. 2. In regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, Council has undertaken an assessment of the site considering whether the land is contaminated and found that, given the site history, no requirements in regard to remediation were appropriate. It was indicated that Council was satisfied in regard to cl 7(1) and I am satisfied that the question of contamination is adequately considered. 1. At the conciliation conference, the parties worked through the objector submissions (in particular the matters heard during the site view referenced above). I am satisfied that there has been consideration given to these submissions mindful of the requirements of s 4.15(1)(d) of the EPA Act. 2. I note Council's earlier concerns in regard to the zone objectives, and I too have had regard to zone objectives in this consideration as required under cl 2.3(2) of the LEP. Firstly, it is clear there is no jurisdictional requirement for an application to conform with zone objectives for a positive determination. But I note that Council also advises that with the now understood reduced height of the shed and in particular its scaling back in size, Council was satisfied that all its concerns in regard to the proposal were now met. 3. Council indicated to me its policies in regard to notification for applications amended after the initial notification (Blue Mountains Development Control Plan Part H3). I have reviewed this provision and in this regard I am satisfied that the amendments provides for a development of a lesser impact and that it addresses what were impacts associated with the original proposal. Therefore there was no requirement under the DCP for the amendments to be notified. 4. I agree with the advice of the parties that the parties' decision is a decision that the Court could make in the proper exercise of its functions. As such, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. I note that in coming to this decision, I was not required to give consideration to the overall merits of the proposal, and no such consideration has been given. 5. The Court orders: 1. The Applicant is granted leave to rely on the following amended plans and additional documentation: DWG NO. DESCRIPTION PREPARED BY REV DATE 34 374 Plan of Detail, Levels & Contours Over Part of Lot 1005 in DP 1160246 17 Rock Wallaby Way, Blaxland Freeburn Surveying 00 08/10/2019 A01 Site Plan Kleyn Creations B October 2019 A02 Part Site Plan Kleyn Creations B October 2019 A03 Floor Plan Kleyn Creations A October 2019 A04 Sections Kleyn Creations A October 2019 A05 Elevations Kleyn Creations A October 2019 DOCUMENT DESCRIPTION PREPARED BY DATE Bushfire Assessment Statement Building Code & Bushfire Hazard Solutions 06/05/2019 Aboriginal Cultural Heritage Due Diligence Assessment Kayandel Archaeological Services August 2019