Feros Group Developments Pty Ltd v Blue Mountains City Council

[2021] NSWLEC 1403

Land and Environment Court

New South Wales

Medium Neutral Citation:

Feros Group Developments Pty Ltd v Blue Mountains City Council [2021] NSWLEC 1403

Hearing dates:

Conciliation conference 22 June 2021, final submission 6 July 2021

Date of orders:

12 July 2021

Decision date:

12 July 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The applicant is granted leave to rely on the amended plans set out in Annexure A.

(2) The applicant is to pay the respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3) The appeal is upheld.

(4) Development application X/846/2019, as amended, for the construction of a two storey seniors housing development comprising in-fill self-care housing containing 9 dwellings, each with 3 bedrooms, attached single car garages, car parking, driveway access from Churchill Street and associated fencing, earthworks, landscaping, stormwater drainage works, landscaping and tree removal at Lot 14 of DP 615001 known as 409-417 Great Western Highway, Springwood is approved subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties

Legislation Cited:

Blue Mountains Local Environmental Plan 2015, cll 2.3, 6.9, 6.23

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7, 8.15, Div 4.8

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Infrastructure) 2007, cl 101

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Feros Group Developments Pty Ltd (Applicant)
Blue Mountains City Council (Respondent)

Representation:

Counsel:
D Le Breton (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/78077

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 refusal of Development Application No. X/846/2019.

2. The development site comprises one allotment of land legally described as Lot 14 DP 615001, with a street address of 409-417 Great Western Highway, Springwood. The proposal is for the construction of a two storey seniors housing development comprising in-fill self-care housing containing 9 dwellings, each with 3 bedrooms, attached single car garages, car parking, driveway access from Churchill Street and associated fencing, earthworks, landscaping, stormwater drainage works, landscaping and tree removal (proposal).

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 22 June 2021, and at which I presided. At the conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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.

Jurisdiction

General

6. 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 outlined jurisdictional matters of relevance in these proceedings, including through provision of jurisdictional notes provided to the Court on 21 June 2021. My consideration of jurisdictional factors is provided below.

Integrated Development

7. Part of the site is mapped as bush fire prone land and so the proposed development is integrated development within the meaning of s 4.46 of the EPA Act. General terms of approval and a bush fire safety authority pursuant to s 100B of the Rural Fires Act 1997 (RFS Act) are required and have been issued and appropriately referenced in proposed consent conditions.

State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)

8. In regard to cl 7(1) of SEPP 55, I have considered whether the land is contaminated and accept the advice on the history of residential use of the site, and see the requirements of cl 7(1) have been satisfied.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

9. The required Certificate has been provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and proposed consent conditions require compliance with this Certificate.

State Environmental Planning Policy (Infrastructure) 2007

10. Given the site is located on the corner of the Great Western Highway (a classified road), cl 101 of State Environmental Planning Policy (Infrastructure) 2007 requires consideration, in particular in regard to subcl (2) which I consider below:

1. Subclause 2(a) – Vehicular access to the site is proposed via Churchill Street, and not via the Great Western Highway.

2. Subclause 2(b) – Council’s development engineering expert provided advice to me during the conference on how it was that the proposal would not adversely affect the safety, efficiency and ongoing operation of the Great Western Highway; because: (1) satisfactory arrangements are now in place in regard to the design and location of the proposal’s access driveway, (2) the development would not result in the emission of smoke or dust, and (3) any increase to the volume and frequency of vehicles using the Great Western Highway would be negligible. I accept this advice and am satisfied in regard to cl 101(2).

11. In regard to Blue Mountains Local Environmental Plan 2015 (BMLEP), I note:

1. The site is located within the R2 Low Density Residential zone and the proposal is permissible under that zone. I have had regard to the zone objectives mindful of cl 2.3(2).

2. The proposal does not breach any other development standards contained in relevant environmental planning instruments.

3. The following additional considerations are relevant to BMLEP:

1. Clause 6.9(2) – Stormwater Management. Council’s development engineering expert also provided advice in regard to the matters set out in clause 6.9(2) of BMLEP in relation to stormwater management, explaining how each of the matters were addressed by the proposal, as amended. Having heard this advice I am satisfied in regard to the matters set out in cl 6.9(2).

2. Clause 6.23 – Essential services. Council’s development engineering expert also provided advice in regard to the matters set out in clause 6.23 of BMLEP in relation to essential services, explaining how each of the relevant services are available or that adequate arrangements have been made to make them available. Having heard this advice I am satisfied in regard to the matters set out in cl 6.23.

Submissions

12. There is a need for me to give consideration to submissions under s 4.15(1)(d) of the EPA Act. Council provided me with a bundle of documents which included lay submissions, providing me the opportunity to review these submissions. Council also explained the consideration undertaken by Council itself in regard to these submissions, which have resulted in numerous amendments to the proposal of a period of time. I am satisfied that the requirement to give consideration to submissions has been met.

Conclusion

13. Based on the material outlined above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. In turn I am required to dispose of the proceedings in accordance with the parties’ decision. I note that I have had no direct regard to the merits of the application in coming to this position.

14. The Court orders:

1. The applicant is granted leave to rely on the amended plans set out in Annexure A.

2. The applicant is to pay the respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development application X/846/2019, as amended, for the construction of a two storey seniors housing development comprising in-fill self-care housing containing 9 dwellings, each with 3 bedrooms, attached single car garages, car parking, driveway access from Churchill Street and associated fencing, earthworks, landscaping, stormwater drainage works, landscaping and tree removal at Lot 14 of DP 615001 known as 409-417 Great Western Highway, Springwood is approved subject to the conditions of consent at Annexure A.

.………………………

P Walsh

Commissioner of the Court

Annexure A (231016, pdf)

Plans (42054075, pdf)

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Decision last updated: 14 July 2021