Ferris v Blue Mountains City Council
[2023] NSWLEC 1391
•25 July 2023
Land and Environment Court
New South Wales
Medium Neutral Citation: Ferris v Blue Mountains City Council [2023] NSWLEC 1391 Hearing dates: Conciliation Conference 5 July 2023 Date of orders: 25 July 2023 Decision date: 25 July 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to development application number X/2020/2022, seeking consent for alterations and additions to facilitate a health services facility at Lot B in Deposited Plan 339476, also known as 1 Boorea Street, Blaxland, subject to the conditions of consent at Annexure 'A'.
Catchwords: DEVELOPMENT APPEAL – alterations and additions to an existing dwelling house to facilitate a health services facility – conciliation conference – agreement between the parties – orders
Legislation Cited: Blue Mountains Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 6.9, 6.17
Environmental Planning and Assessment Act 1979, ss 4.16, 8.7
Environment Planning and Assessment Regulation 2021
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport & Infrastructure) 2021, ss 2.59, 2.60
Texts Cited: Blue Mountains Development Control Plan 2015
Standards Australia/Standards New Zealand, AS/NZS 2890. 1:2004 Australian/New Zealand Standard Parking Facilities Part 1: Off-street car parking, 2004
Category: Principal judgment Parties: Renee Ferris (Fist Applicant)
Ken Ferris (Second Applicant)
Evan Ferris (Third Applicant)
Blue Mountains City Council (Respondent)Representation: Counsel:
Solicitors:
G Visentin (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)
McKees Legal Solutions (Applicant)
Pikes & Verekers Lawyers (Respondent)
File Number(s): 2023/75805 Publication restriction: No
Judgment
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COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application X/2020/2022 for alterations and additions to an existing dwelling house to facilitate a health services facility (the Proposed Development) at 1 Borea Street Blaxland legally described as Lot B in DP 339476 (the Site).
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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 5 July 2023. I presided over the conciliation conference which commenced on site where the parties and the Court had the benefit of hearing from a number of objectors. Relevantly, the development application had been notified by the Respondent in accordance with the EPA Act from 6 January 2023 to 20 January 2023 and four written submissions were received a copy of which was filed with the Court.
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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 and granting development consent to the development application subject to conditions.
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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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
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The Respondent council has considered the matters raised in the submissions received during the notification period and the oral submissions provided by the objectors at the conciliation conference. The submissions relate primarily to site suitability, visual impact, traffic and landscaping concerns.
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As a result of the conciliation conference, the Proposed Development has been amended by the Applicant to include the following:
Increasing the width of the garden bed on the boundary adjoining 3 Boorea Street by 435mm to 1620mm.
Replacing the planting proposed in the garden bed adjoining 3 Boorea with a row of Blueberry Ash, providing generous canopy to the parking area.
The landscape proposal has been amended to provide for an advanced Lemon Myrtle at the south-west of the site which compensates for the removal of the Turpentine tree referred to as T14.
The proposal has been amended to provide two Banksia integrifolia at the south of the Site, improving the landscape outcome and providing additional habitat.
The car parking area has been amended to increase the width of the car spaces to be compliant with Australian Standard 2890.1.2004 “Off Street Car Parking”.
The amended swept paths show that the car park, as amended, allows for vehicles to enter and exit safely in a forward motion.
To ensure that the carpark is compliant with the Blue Mountains Development Control Plan Part E2.2.3.
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The Respondent acknowledges that the amended development application, as detailed above at [6], has sought to address the concerns raised by the objectors as well as the matters contained within the Respondent’s Statement of Facts and Contentions filed 31 March 2023.
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The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
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There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be as set out in a joint jurisdictional note and the parties explained how the jurisdictional prerequisites have been satisfied. I have considered the joint jurisdictional note and include a relevant summary to detail my reasons for being satisfied that each jurisdictional prerequisite has been satisfied.
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A BASIX Certificate is required for a BASIX building however the Proposed Development does not satisfy the definition of a BASIX building which is defined in the Environmental Planning and Assessment Regulation 2021, Sch 7 Dictionary, as follows:
a building that contains at least 1 dwelling, but does not include the following—
(a) hotel or motel accommodation,
(b) a boarding house, hostel or co-living housing that—
(i) accommodates more than 12 residents, or
(ii) has a gross floor area exceeding 300 square metres.
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I am satisfied that no BASIX certificate is required pursuant to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 because the Proposed Development is not for a dwelling and is therefore not considered a BASIX building.
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The State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) applies to the Site and s 4.6 of the Resilience and Hazards SEPP nominates matters that must be considered in relation to the contamination of land before the development application is determined. The parties explain that the Site and the broader area have a long history of use as a dwelling house and there is no known or likely potential of previous use of the Site that would give rise to the potential for contamination. It is also relevant that no significant ground disturbance will occur as part of the Proposed Development.
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Pursuant to an agreed condition of consent (Condition 2), a maximum of three health care professionals are to operate on the Site at any one time, with the upper floor level to be used for administrative and storage purposes associated with the approved use, namely a “health services facility”. Consent is sought by the Applicant for a “health services facility” and the parties explain that permissibility of the Proposed Development is satisfied pursuant to the provisions of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) in accordance with the zoning of the Site. The Site is zoned R2 Low Density Residential (R2 zone) under the Blue Mountains Local Environmental Plan 2015 (BMLEP) and a “health services facility” is not a permissible land use in the R2 zone according to the Land Use Table of the BMLEP however, a “health services facility” is expressly permissible in the R2 zone with consent pursuant to s 2.60 of the SEPP Transport and Infrastructure. The R2 zone is included in the definition of a “prescribed zone” in the SEPP Transport and Infrastructure, s 2.59 and development for the purpose of health services facilities may be carried out by any person with consent on land in a prescribed zone pursuant to s 2.60.
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The proposed development maintains the residential aesthetic of the current dwelling and provides facilities or services for the residents. The development is provided within a residential scale building and incorporates building design, siting and layout elements that reflect the prevailing and desired future character of the local area. The Court is satisfied that the parties have had regard to the R2 zone objectives, as required by cl 2.3(2) of the BMLEP and that they agree that the Proposed Development provides no inconsistencies with the zone objectives which are as follows:
“● To provide for the housing needs of the community within a low density residential environment.
● To enable other land uses that provide facilities or services to meet the day to day needs of residents.
● To promote residential development in locations that are accessible to services and facilities
● To ensure that development maintains and improves the character of residential areas in a manner that minimises impacts on existing amenity and environmental quality.
● To allow a range of non-residential land uses that are consistent with the predominant scale and height of adjoining buildings and do not unreasonably detract from the amenity of adjacent residents.”
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The Proposed Development complies with maximum height of buildings development standard of 8m (cl 4.3, BMLEP).
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The Proposed Development complies with the maximum floor space ratio development standard of 0.35:1 (cl 4.4, BMLEP).
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In relation to stormwater management, the objective of cl 6.9 of the BMLEP is to avoid the adverse impacts of urban stormwater on land on which development is located and on adjoining properties, native bushland and receiving waters. Engineering Plans prepared by Fairlight Consulting Engineers, Issue G, dated 28 June 2023 and filed on 6 July 2023 show a minimisation of impacts of urban stormwater and I have formed the requisite state of satisfaction required by cl 6.9(2) of the BMLEP.
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I am satisfied that the Respondent has considered the matters relating to character and landscape listed in cl 6.17(3) and that the Proposed Development meets the objective of cl 6.17 of the BMLEP to promote design that is consistent with or enhances the established character of the buildings, gardens and streetscapes of the villages in the Blue Mountains. The parties explain that they agree that the Proposed Development maintains the residential aesthetic of the current dwelling, is provided within a residential scale building and incorporates building design, siting and layout elements that reflect the prevailing and desired future character of the local area. The landscape plan prepared by Bio-Building Design, dated 30 June 2023 provides garden settings that establish a standard of presentation that is comparable with adjacent dwellings and the immediate landscape setting.
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For these reasons, 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.
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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.
Notations:
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The Court notes:
That the Respondent as the relevant consent authority has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant's amending Development Application X2020/2022 in accordance with the plans and documents listed below:
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| Swept Path Analysis Amended Carpark Layout | Traffic & Safety Solutions Pty Ltd | Sheet 10/10 | A | 20.05.2023 |
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The amended plans and documents have been filed with the Court on 6 July 2023.
Orders:
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The Court orders:
The appeal is upheld.
Development consent is granted to development application number X/2020/2022, seeking consent for alterations and additions to facilitate a health services facility at Lot B in Deposited Plan 339476, also known as 1 Boorea Street, Blaxland, subject to the conditions of consent at Annexure 'A'.
E Espinosa
Commissioner of the Court
Annexure A
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Decision last updated: 25 July 2023
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