Fragar v Blue Mountains City Council

[2024] NSWLEC 1802

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fragar v Blue Mountains City Council [2024] NSWLEC 1802

Hearing dates:

Conciliation Conference held 17 October 2024

Date of orders:

13 December 2024

Decision date:

13 December 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld;

(2) The Applicant’s written request prepared by Council Approval Group dated 6 November 2024 pursuant to clause 4.6 of the Blue Mountains Local Environmental Plan 2015 (“BMLEP”) to vary the minimum lot size for dual occupancies development standard in clause 4.1B of BMLEP is upheld.

(3) Development Consent is granted to Development Application No. X/1040/2023 for the removal of trees, demolition of a garage, additions and alterations to existing dwelling, construction of a detached dual occupancy, and a one into two lot Torrens title subdivision resulting in one dwelling on each lot of land at 15 Edwin Lane, Katoomba, is approved, subject to the conditions of consent at Annexure “A”.

(4) The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendments pursuant to section 8.15(3) if the Environmental Planning and Assessment Act 1979 in the agreed sum of $3,500 payable within 21 days of the orders being made.

Catchwords:

DEVELOPMENT APPEAL – dual occupancy – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Blue Mountains Local Environmental Plan 2015 (Amendment No 16)

Blue Mountains Local Environmental Plan 2015 (Amendment No 22)

Blue Mountains Local Environmental Plan 2015, Pt 2, cll 1.8A, 4.1, 4.1B, 4.3, 4.4, 4.6, 5.10, 5.21, 6.9, 6.23, Sch 5

Environmental Planning and Assessment Regulation 2021, ss 23, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.13

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Texts Cited:

Blue Mountains Community Participation Plan 2021

NSW Department of Planning and Environment, Managing Land Contamination Planning Guidelines

Category:

Principal judgment

Parties:

Lauren Fragar (Applicant)
Blue Mountains City Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor)(Applicant)
P Hudson (Solicitor)(Respondent)

Solicitors:
Storey and Gough Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/181719

Publication restriction:

No

Judgment

1. 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 No. X/1040/2023 seeking consent for the removal of trees, demolition of a garage, additions and alterations to existing dwelling, construction of an attached dual occupancy, and a one into two lot subdivision resulting in one dwelling on each lot of land (Proposed Development) at 15 Edwin Lane, Katoomba (the Site).

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 has been held on 17 October 2024 and adjourned to 22 November 2024 by which time the parties filed an agreement pursuant to s 34 of the LEC Act. I presided over the conciliation conference.

3. Since the s 34 conference, the Applicant has sought to amend the Proposed Development as follows:

1. Amended architectural plans which delete built form over the existing stormwater culvert and convert the dual occupancy into a detached rather than attached dual occupancy (with consequential amendments to the design of the exterior and interior of the proposed new dwelling);

2. Amended BASIX Certificate;

3. Clause 4.6 Variation Request seeking to justify the contravention of the minimum lot size development standard in cl 4.1B of the Blue Mountains Local Environmental Plan 2015 (BMLEP);

4. Statement of Heritage Impact.

4. The parties are satisfied that the amended development application satisfactorily addresses the Respondent’s contentions in the Statement of Facts and Contentions filed 5 July 2024, subject to the agreed conditions.

5. 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.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

8. 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 the terms of cl 4.6 of the BMLEP to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note.

9. The Applicant is the owner of the Site and has provided her written consent to the lodgment of the development application (Tab 1 of Class 1 Application), as required by s 23(1) of the Environmental Planning and Assessment Regulation 2021.

10. No submissions were received by the Respondent following notification in accordance with the Blue Mountains Community Participation Plan 2021 to surrounding properties of:

1. the Proposed Development for a period of 14 days from 8 September 2023 until 22 September 2023; and

2. the amended application as detailed at [3] from 28 October 2024.

11. The Site is mapped as being within the ‘Hawkesbury-Nepean Catchment’, a regulated catchment under the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). Accordingly, the Proposed Development must satisfy the jurisdictional prerequisites contained in chapter 6 of the BC SEPP. The Court is satisfied that the Proposed Development satisfies the terms in ss 6.6, 6.7, 6.8, 6.9, 6.10 and 6.13 of the Biodiversity and Conservation SEPP for the reasons set out in the letter prepared by the Council Approval Group dated 6 November 2024 provided by the parties with the jurisdictional note.

12. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) the consent authority must be satisfied that the site is suitable for the proposed use in terms of contamination. The land is not listed on the Council’s potentially contaminated land register and none of the activities that may cause contamination, listed in Table 1 of Planning NSW’s Managing Land Contamination Planning Guidelines, are being or are known to have been carried out on the site. The Site is currently used for residential purposes, comprising a detached dwelling house and the Proposed Development does not propose a change of use, the Site is regarded as suitable for the Proposed Development and use.

13. On 1 October 2023 the State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings) came into force and repealed the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). Nonetheless, s 4.2 ‘Savings and transitional provisions’ of SEPP Sustainable Buildings relevantly states as follows:

“(1) This policy does not apply to the following—

(a)    a development application submitted on the NSW planning portal but not finally determined before 1 October 2023…”

14. In circumstances where this development application was lodged on 22 August 2023, the provisions of SEPP BASIX continue to apply and the Applicant relies on an updated BASIX Certificate dated 6 November 2024.

15. The Site is situated within Zone R2 – Low Density Residential pursuant to the provisions of the BMLEP and development for the purposes of “Dual Occupancies” is permitted with consent.

16. The maximum permissible height of buildings on the Site is 6.5 metres (cl 4.3(2) of the BMLEP) and the Proposed Development complies with this development standard by proposing a maximum height of 6.325 metres.

17. A floor space ratio (FSR) development standard of 0.35:1 applies to the Site (cl 4.4(2) of the BMLEP) and the Proposed Development complies with this development standard by proposing an FSR of 0.3143:1 for proposed Lot 1 and 0.2455:1 for proposed Lot 2.

18. Pursuant to the Lot Size Map referred to in cl 4.1(2) of the LEP, the size of any lot resulting from a subdivision of land is not to be less than 720m2. However, cl 4.1B of the LEP relates to minimum lot sizes for dual occupancies and applies to land within Zone R2.

19. In relation to a dual occupancy (detached) proposed on land within Zone R2 Low Density Residential, the table identifies a minimum lot size of 1,100m2 whereas the Site has an area of 727.2m2, this represents a shortfall of 327.8m or 33.9%.

20. On 10 May 2024, Blue Mountains Local Environmental Plan 2015 (Amendment No 16) came into force and amended clause 4.1B of the LEP. The amending instrument did not initially contain a savings provision. However, on 13 September 2024, Blue Mountains Local Environmental Plan 2015 (Amendment No 22) came into force and amended cl 1.8A ‘Savings provisions relating to development applications’ by inserting subclause (4) as follows:

“(4) A development application made, but not finally determined, before the commencement of Blue Mountains Local Environmental Plan 2015 (Amendment No 16) must be determined as if that plan had not commenced.”

21. In circumstances where Blue Mountains Local Environmental Plan 2015 (Amendment No 22) did not itself contain a savings provision, pursuant to clause 1.8A(4) the amendments made by Blue Mountains Local Environmental Plan 2015 (Amendment No 16) do not apply to the development application.

22. Clause 4.1B of the BMLEP relevantly states as follows:

“(2)   Development consent may be granted to development on a lot in a zone specified in the table to this clause for a purpose specified in the table if the area of the lot is equal to or greater than the area listed beside that zone in the table.

(3)    Despite subclause (2), development consent may be granted to development on a lot with an area of at least 720 square metres in a zone specified in the table for the purpose of a dual occupancy (attached) if the development will include one dwelling with a gross floor area not exceeding 100 square metres.

(4)    Land specified in the table may, with development consent, be subdivided for the purposes of dual occupancies to create a lot of a size that is less than the minimum size shown on the Lot Size Map for the land if—

(a)    development consent has been granted for a dual occupancy or a single development application proposes both the subdivision of the land and the erection of a dual occupancy on the land, and

(b)    each dwelling will be erected on a separate lot.”

23. Clause 4.1B(4) of the BMLEP then gives the power to subdivide a dual occupancy to create a lot of a size that is less than the minimum size of 720m2 shown on the Lot Size Map for the land.

24. The Applicant relies on a cl 4.6 written request prepared by Sam Down, Town Planner at Council Approval Group dated 6 November 2024, seeking to justify the contravention of the minimum lot size development standard in cl 4.1B(2) of the BMLEP.

25. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.1B of the BMLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the BMLEP namely that compliance with the development standard is unreasonable or unnecessary in the circumstance because the Proposed Development remains consistent with the objectives of the particular standard at p 15. Further, the written request adequately addresses that there are sufficient environmental planning grounds to justify the contravention of the development standard at p 25.

26. The Site is located within the Grimley Estate Heritage Conservation Area (K170) (Grimley Estate HCA) under Schedule 5, Part 2 of BMLEP 2015 and consent is sought pursuant to the terms of cl 5.10 of the BMLEP. The Applicant relies on a Statement of Heritage Impact prepared by Council Approval Group dated 6 November 2024 which confirms that the Proposed Development will not have an unacceptable impact on the heritage significance of the Grimley Estate HCA.

27. Flood planning is deal with in cl 5.21 of the BMLEP which sets out matters about which a consent authority much be satisfied in relation to development proposed on within the flood planning area prior to the granting of development consent.

28. The Court, having considered the matters in cl 5.21(3) and the Flood Impact Assessment prepared by MBR Consulting Engineers dated 24 October 2024, is satisfied that the development:

1. is compatible with the flood function and behaviour on the land, and

2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

4. incorporates appropriate measures to manage risk to life in the event of a flood, and

5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

29. Regarding stormwater management, cl 6.9 of BMLEP 2015 sets out matters about which a consent authority must be satisfied prior to the grant of development consent. The Court, having considered the matters in cl 6.9(2) and the amended stormwater plans is satisfied that the development:

1. incorporates best practice water sensitive urban design principles, and

2. is designed to maximise the use of water permeable surfaces on the land having regard to groundwater levels and the soil characteristics affecting on-site infiltration of water, and

3. includes, if practicable, on-site stormwater retention for reuse as an alternative supply to mains water, groundwater or river water, and

4. avoids any adverse impacts caused by stormwater runoff on adjoining properties, native bushland and the receiving natural environment by ensuring that—

1. the quality of surface water or groundwater leaving the site is not reduced in the short or long term, and

2. the quantity and flow characteristics of stormwater leaving the site is not adversely altered, and

3. stormwater treatment and disposal methods achieve adequate filtration, absorption, dissipation and scour protection, and

5. integrates stormwater management measures into the landscape so as to provide a neutral or beneficial effect on environmental and water quality protection, stormwater retention and detention, flood mitigation, landscaping, public open spaces and recreational and visual amenity.

30. Clause 6.23 of the BMLEP sets out matters which the consent authority must be satisfied for a development to the provision of essential services including supply of water, electricity, management of sewage, stormwater and vehicular access. The Site already benefits from services essential for the development which can be extended to service the Proposed Development.

31. Vehicular access to the existing dwelling is proposed as part of the DA, and the existing vehicular access will be utilised by the proposed new dwelling.

32. 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. I adopt the reasons given by the parties as set out in this judgment.

33. 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:

34. The Court notes:

1. Blue Mountains City Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application DAX/1040/2023 in accordance with the documents listed below (“the Amended Application”):

1.	Architectural Plans prepared by Council Approval Group, Revision 20	6 November 2024
2.	Plan of Proposed Subdivision prepared by Vince Morgan Surveyors	22 October 2024
3.	Landscape Concept Plan prepared by Earth Matters Consulting	16 October 2024
4.	Stormwater Concept Plans prepared by MBR Consulting Engineers, Revision D	29 October 2024
5.	Flood Impact Assessment prepared by MBR Consulting Engineers, Issue C	24 October 2024
6.	BASIX Certificate No. 1396126S_06	6 November 2024
7.	Clause 4.6 variation request prepared by Council Approval Group	6 November 2024
8.	Statement of Heritage Impact prepared by Council Approval Group	6 November 2024

Orders:

35. The Court orders:

1. The appeal is upheld;

2. The Applicant’s written request prepared by Council Approval Group dated 6 November 2024 pursuant to clause 4.6 of the Blue Mountains Local Environmental Plan 2015 (“BMLEP”) to vary the minimum lot size for dual occupancies development standard in clause 4.1B of BMLEP is upheld.

3. Development Consent is granted to Development Application No. X/1040/2023 for the removal of trees, demolition of a garage, additions and alterations to existing dwelling, construction of a detached dual occupancy, and a one into two lot Torrens title subdivision resulting in one dwelling on each lot of land at 15 Edwin Lane, Katoomba, is approved, subject to the conditions of consent at Annexure “A”.

4. The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendments pursuant to section 8.15(3) if the Environmental Planning and Assessment Act 1979 in the agreed sum of $3,500 payable within 21 days of the orders being made.

E Espinosa

Commissioner of the Court 

Annexure A

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Decision last updated: 13 December 2024