Carter v Blue Mountains City Council

[2023] NSWLEC 1700

Land and Environment Court

New South Wales

Medium Neutral Citation:

Carter v Blue Mountains City Council [2023] NSWLEC 1700

Hearing dates:

Conciliation conference 17 November 2023

Date of orders:

23 November 2023

Decision date:

23 November 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Leave is granted for the Applicant to rely on amended plan 2102DA01 Issue 3 dated 19 October 2023.

(2) The appeal is upheld.

(3) Development application X/345/2022 for the demolition of the existing garage and construction of a new garage and associated works at 14 Vale Street, Katoomba is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of new garage – conciliation – amended plans – agreement between the parties – orders made

Legislation Cited:

Blue Mountains Local Environmental Plan 2015, cll 5.21, 6.9,

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16,4.55, 8.7, Pt 4

Environmental Planning and Assessment Regulation 2021

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 8.8,8.9, 9.3, 9.4, 13.19

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Blue Mountains Community Participation Plan 2021

Blue Mountains Development Control Plan 2015

Category:

Principal judgment

Parties:

Nicholas Carter (Applicant)
Blue Mountains City Council (Respondent)

Representation:

Counsel:
N Carter (Litigant in person) (Applicant)
K Glanville (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2023/151231

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: The Applicant is appealing the deemed refusal of it development application, X/345/2002 by Blue Mountains City Council pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The development application seeks consent for demolition and construction of new garages located on common property within Lot 1 and Lot 3 of Strata Plan 43210. The works are proposed at 14 Vale Street, Katoomba. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 9 October 2023. That conciliation conference was terminated on 31 October 2023.

3. Following the conciliation conference, the parties continued without prejudice discussions and on 7 November 2023 sought orders for a further conciliation conference. A further conciliation conference was listed for 17 November 2023. I presided over the further conciliation conference. 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 for the development application, as amended, and granting development consent subject to the annexed 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 form this state of satisfaction on the basis that:

1. Owners consent for the development application was given by the Owners Corporation in accordance with the requirements of the Environmental Planning and Assessment Regulation 2021.

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies. As required by s 4.6 of SEPP RH, consideration has been given as to whether the subject site is contaminated, and if it is, that it is satisfied that the land is suitable (or will be after remediation) for the proposed use. The site has historically been used for residential purposes. The council records do not indicate the site has been previously used for a potentially contaminating use. I accept that the site will be suitable for the proposed development.

3. As the development was lodged prior to the 21 November 2022, the former provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) apply: s 13.19 SEPP BC. Chapter 8 of the instrument applies as the site is located with the mapped bounds of ‘Sydney’s Drinking Water Catchment’. Section 8.8 requires that a consent authority must not grant consent to the carrying out of development under Part 4 of the EPA Act on land in the Sydney drinking water catchment unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality. The Respondent has undertaken such an assessment and the parties agree, and I accept, that the requirements of the provision are met. Pursuant to s 8.9 of SEPP BC, Blue Mountains City Council has been delegated concurrence for minor ancillary structures.

4. Pursuant to SEPP BC, the land is located in the Coxs River Sub catchment of the Hawkesbury – Nepean River. Section 9.4 contains specific planning policies and strategies which are matters to be taken into consideration in the determination of a development application: s 9.3 of SEPP BC. In determining the development application, I have had regard to these matters and on the following grounds I am satisfied none warrant the refusal of the development application. Firstly, due to the small scale of the development and that it is replacing an existing similarly sized structure and secondly, that the garage has incorporated flood mitigation measures.

5. The subject site is zoned R3 Medium Density Residential pursuant to the provisions of the Blue Mountains Local Environmental Plan 2015 (LEP 2015). The proposed development is for the purposes of a residential flat building, a use which is permitted with consent in the zone.

6. The site is located immediately south-east of Kingsford Smith Park which is listed in LEP 2015 as a local heritage item. Further, the site is immediately north of the Katoomba South Conservation Area, also listed in LEP 2015. I am satisfied that given the small scale of the development, its location on the site and the distance from the item/conservation area, the development will not have a detrimental impact on their significance.

7. Pursuant to cl 5.21 ‘Flood Planning’ of LEP 2015 consent must not be granted unless the consent authority is satisfied of the matters listed at sub cl (2) of the provision. In determining the required level of satisfaction, the consent authority is required to consider the matters at sub cl (3) of the provision. Having done so I am satisfied the provision is met on two grounds. Firstly, due to the small scale of the development and that it is replacing an existing similarly sized structure and secondly, that the garage has incorporated flood mitigation measures.

8. Clause 6.9 ‘Stormwater Management’ sets out matters about which the consent authority must be satisfied at sub cl (2) of the provision. On similar reasoning to (4), I accept the agreed position of the parties that the required state of satisfaction is met. Additionally, the annexed conditions include conditions directed to stormwater matters at conditions 11, 12, 16 and 17.

9. As required by the Blue Mountains Community Participation Plan 2021, the development application was advertised and notified between 14 March and 28 March 2022. No submissions were received.

10. The Blue Mountains Development Control Plan 2015 (DCP 2015) applies to the site. The statement of facts and contentions notes the compliance of the proposed development with DCP 2015. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

7. The Court notes that:

1. Blue Mountains City Council as the relevant consent authority has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application X/345/2022 (NSW Planning Portal ref PAN-199542), in accordance with the below documentation:

Drawing:	Prepared by:	Dated:
2102DA01  Issue 3	Nicholas M Carter	19/10/2023

2. The amended architectural plans were filed with the Court on 8 November 2023.

8. The Court orders that:

1. Leave is granted for the Applicant to rely on amended plan 2102DA01 Issue 3 dated 19 October 2023

2. The appeal is upheld

3. Development application X/345/2022 for the demolition of the existing garage and construction of a new garage and associated works at 14 Vale Street, Katoomba is determined by the grant of consent subject to the conditions set out in Annexure A.

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 Annexure A (205877, pdf)

Decision last updated: 23 November 2023