Land and Environment Court New South Wales Medium Neutral Citation: H D Squared Developments Pty Ltd ATF Leura Development Trust ABN 70 273 715 118 v Blue Mountains City Council [2020] NSWLEC 1227 Hearing dates: Conciliation conference on 10 March 2020 Date of orders: 21 May 2020 Decision date: 21 May 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The applicant is granted leave to rely upon the amended plans and documentation referred to in condition A1 of the conditions of consent at Annexure A to this agreement. (2) The applicant is to pay the respondent's costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $17,700 by 1 November 2020. (3) Appeal upheld. (4) Development application DA X/595/2018 for the construction of a residential flat building comprising 24 units and basement car parking at 43-51 Great Western Highway, Leura is approved subject to the conditions annexed hereto and marked "A". Catchwords: DEVELOPMENT APPLICATION – conciliation conference – residential development – amended plans – 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 Roads Act 1993 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) Texts Cited: Blue Mountains Development Control Plan 2015 Category: Principal judgment Parties: H D Squared Developments Pty Ltd ATF Leura Development Trust ABN 70 273 715 118 (Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: M Staunton (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2018/379203 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the actual refusal of its development application X/595/2018. As amended the development application seeks approval for the construction of 24 apartments within one residential flat building, resembling three connected buildings, over a single level basement car park. The development is proposed at 43-51 Great Western Highway, Leura (Lot 30 and 31 DP 1178632 and Lots 12 and 13 DP 1163732). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 March 2020. I presided over the conciliation conference. 3. Following the conciliation, an agreement under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. The development application was made with the consent in writing of Danny Noumeir who is a director of HD Squared Developments Pty Ltd which is the trustee for the owner of the land, Leura Development Trust in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 (Regulation); 2. The application is an 'integrated' development pursuant to s 4.46 of the EPA Act and s 138 of the Roads Act 1993. Such concurrence has been provided by NSW Transport, Roads and Maritime Services (RMS) by letter of 5 September 2018. On 24 January 2020, Transport for NSW (formerly RMS), confirmed that the concurrence as granted is still applicable to the DA as amended 3. An Acoustic Report prepared by Koikas Acoustics dated 31 March 2020 has been provided to satisfy cl 102 of State Environmental Planning Policy (Infrastructure) 2007. 4. As required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. A Detailed Site Investigation of the land has been prepared by Douglas Partners and dated 9 December 2019. It concludes that the site can be rendered suitable for the proposed development, subject to the waste classification and validation works outlined. These requirements are incorporated into the consent conditions. I am satisfied that the land will be remediated before the land is used for a residential purpose. 5. A Design Verification Statement dated 17 April 2020 has been provided to satisfy cl 28(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development. 6. Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SREP) applies. The subject site is located in the Grose River sub catchment. The general planning considerations contained in cl 5 of the SREP have been considered together with the Stormwater Management Report and accompanying plans prepared by Woollacotts dated 31 March 2020. 7. An updated BASIX dated 31 March 2020 has been provided to satisfy the requirement in Schedule 1 of the Regulation and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 8. On 28 June 2019, the Blue Mountains Local Environmental Plan 2015 (Amendment No. 1) (LEP 2015) was gazetted. There is no savings provision associated with LEP 2015. As a result, the site became zoned R1 General Residential pursuant to LEP 2015 and the provisions of Blue Mountains Development Control Plan 2015 became the applicable controls for the assessment of the proposed development. Development for the purposes of a "residential flat building" is permissible with consent in accordance with the Land Use Table relating to Zone R1 General Residential in LEP 2015. 9. Pursuant to the Height of Buildings Map referred to in cl 4.3 of LEP 2015, the maximum permissible height on the site is 12m. The proposed development, as amended, is compliant with the maximum height. 10. Pursuant to the Floor Space Ratio Map referred to in cl 4.4 of LEP 2015, the maximum permissible floor space ratio for the site is 1:1. The proposed development, as amended at 0.73:1, is compliant with the maximum floor space ratio. 11. The site is not heritage listed or within a heritage conservation area. The following heritage items pursuant to Schedule 5 of LEP 2015 are located less than 100m from the site: 1. Chateau Napier – LA026 (31m East of site), 2. Hillcrest Coachman – LA080 (90m South of site), 3. Alexandra Hotel – LA088 (52m South-West of site), 4. Shop and House – Archaeological Site – LA028 (56m West of site), 5. Leura House – LA004 (94m North-East of site). 1. Consideration has been given as to the effect of the proposed development on the heritage significance of these items pursuant to cl 5.10(5) of LEP 2015. It is considered that any impact will be acceptable. 2. The site is mapped under LEP 2015 as within a Protected Area – Slope Constraint Area. This mapping applies to land that is 20% or greater in slope. The site is heavily modified and currently vacant, with no significant vegetation communities, rock outcrops or escarpments located on the site. The application is also supported by a geotechnical report and a land survey with contours, which demonstrates that, aside from the batters near the south and east boundaries, the site, is generally less than 10% in slope. I am satisfied that the precondition at cl 6.4(3) of LEP 2015 is satisfied by the amended development application. 3. Clause 6.9 of LEP 2015, Stormwater management, applies to the proposed development. I am satisfied that the precondition at cl 6.9(2) of LEP 2015 is satisfied by the amended development application. 4. I have given consideration to the matters listed at cl 6.14(3) of LEP 2015 in deciding to grant development consent for the proposed earthworks ancillary to the development. 5. LEP 2015 at cl 6.17 Consideration of Character and landscape requires the consent authority, prior to the grant of consent, to give consideration to the attributes listed at sub cl (3). In determining the application I have given consideration to the listed matters. 6. LEP 2015 at cl. 6.19 Design Excellence, requires the consent authority, prior to the grant of consent, have regard to the attributes listed at sub cl (4). In determining the application I have given consideration to the listed matters. 7. In deciding to grant development consent for the proposed development I have given consideration to the matters listed at cl 6.21(2) of LEP 2015 in relation to Sustainable resource management. 8. Clause 6.23 of LEP 2015, Essential Services, applies to the proposed development. I am satisfied that the precondition at cl 6.23(1) of LEP 2015 is satisfied by the amended development application. 9. The application was notified in accordance with the relevant development control plan and the submissions have been considered. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition A1 of the conditions of consent at Annexure A to this agreement. 2. The applicant is to pay the respondent's costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $17,700 by 1 November 2020. 3. Appeal upheld. 4. Development application DA X/595/2018 for the construction of a residential flat building comprising 24 units and basement car parking at 43-51 Great Western Highway, Leura is approved subject to the conditions annexed hereto and marked "A". ………………………. D M Dickson Commissioner of the Court Annexure A (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: 21 May 2020