Conway v Blue Mountains City Council

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…