Glenstone Holdings 3 Pty Ltd ATF 323 Macquarie Rd Unit Trust v Blue Mountains City Council

[2024] NSWLEC 1603

Land and Environment Court

New South Wales

Medium Neutral Citation:

Glenstone Holdings 3 Pty Ltd ATF 323 Macquarie Rd Unit Trust v Blue Mountains City Council [2024] NSWLEC 1603

Hearing dates:

Conciliation conference on 13 September 2024

Date of orders:

27 September 2024

Decision date:

27 September 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The applicant shall pay the respondent’s costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000.00 within 14 days of the date of this order.

(2)   The appeal is upheld.

(3)   Development Application X/1342/2023 for the partial demolition of existing structures, tree removal, and construction of a seniors housing development consisting of four dwellings and associated landscape and drainage works in relation to Lot 1 DP 1090970, being 323 Macquarie Road, Springwood is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7, 8.15

Land and Environment Court Act 1979, s 34

Blue Mountains Local Environmental Plan 2015, cll 5.10, 6.9, 6.23

Environmental Planning and Assessment Regulation 2021, s 38

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.100

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category:

Principal judgment

Parties:

Glenstone Holdings 3 Pty Ltd ATF 323 Macquarie Rd Unit Trust (Applicant)
Blue Mountains City Council (Respondent)

Representation:

Counsel:
G Hugo (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
McKee Legal Solutions (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2024/141520

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal was lodged by the applicant under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and concerns the refusal by Blue Mountains City Council (Council) of development application number X/1342/2023 (DA). The DA, as amended, seeks consent for seniors housing and associated development at Lot 1 in DP1090970 known as 323 Macquarie Road, Springwood (site).

Conciliation and agreement between the parties

2. At the parties’ request, the Court arranged a conciliation conference between them under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 13 September 2024, and at which I presided. At the conference, the parties provided evidence of, and explained, the signed agreement behind the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended to address various contentions, and subject to conditions.

3. 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. The point of attention in this judgement is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties’ agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties’ agreed jurisdictional statement received by the Court on 13 September 2024.

Jurisdiction

State Environmental Planning Policy (Resilience and Hazards) 2021

4. Section 4.6 requires a consent authority to consider whether the site is contaminated and whether there is a need for remediation. The parties advise in the long-term use of the site for residential purposes, a purpose not seen as at risk in regard to contamination. Due consideration has been given to the topic of contamination and there is no reasonable suggestion that the site requires remediation. I am satisfied that the requirements of s 4.6 have been met in this instance.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

5. The site is within the Hawkesbury Nepean Catchment, therefore Ch 6 applies.

6. The first provisions of relevance relate to water quality and quantity. The parties advise of the consideration of each of the provisions of s 6.6(1) and indicate their satisfaction in respect to each of those, as a consequence of the particulars of the proposal. The only finding of satisfaction required of the Court here is in respect to s 6.6(2). The parties assist here also in indicating their agreed direct finding of satisfaction in respect of both of these matters. I can accept the advice of the parties and I am satisfied that development ensures:

• the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and

• the impact on water flow in a natural waterbody will be minimised.

7. Section 6.7 relates to potential aquatic ecology impacts. Again the parties advise of the consideration of each of the matters at s 6.7(2). On the basis of the advice of the parties I am satisfied in regard to each of the relevant provisions at s 6.7(2).

8. Similarly in relation to s 6.9 and the topic of recreation and public access, I am satisfied in relation to the matters listed at s 6.9(2) based on the advice of the parties that the development does not impact recreation and public access, relevantly.

9. The parties have advised of their consideration of other relevant matters under Ch 6 but these do not require jurisidictional findings of the Court.

State Environmental Planning Policy (Transport and Infrastructure) 2021

10. The parties refer me to s 2.100, which seeks to manage the impacts of and from development that is in close proximity to rail corridors. The site is located near a rail corridor. The DA is supported by an Acoustic Report prepared by West & Associates Pty Ltd which the parties advise has considered the relevant requirements. The conditions of consent include a condition requiring compliance with the Acoustic Report. On the basis of the parties advice I am satisfied with respect to s 2.100.

Blue Mountains Local Environmental Plan 2015

11. The site is situated within R2 Low Density Residential zone. Seniors housing is permissible with consent.

12. The site is located within a heritage conservation area and the parties have advised of their relevant consideration under cl 5.10(4).

13. In relation to stormwater and cl 6.9, the parties advise and I accept that as a consequence of the stormwater management plans provided with the application (which include particulars relating to the collection and disposal of stormwater involving both re-use and infiltration provisions), I can be satisfied with respect to each of the matters at cl 6.9(2).

14. In relation to cl 6.23 and essential services parties advise that water supply, electricity, sewage, stormwater drainage and vehicular access are already available. I accept this advice and am satisfied in regard to the matters at cl 6.23(4).

Notification

15. The development application was placed on public exhibition and one submission was received, which has been considered by Council.

Conclusion

16. Based on the above reasoning, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

17. 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 proposal generally.

Notation

18. The Court notes that Blue Mountains City Council as the relevant consent authority has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the description of the development application DA Number X/1342/2023 to be “Part demolition of existing structures, tree removal, and construction of a seniors housing development consisting of four dwellings and associated landscape and drainage works” and also agreed to plans and documents amendments listed below:

Reference/DWG No	Title/Description	Date			Prepared By
Reference/ DWG No	Title/Description	Revision	Prepared by			Date
Architectural Plans:
DA-0001	Cover	E	Integrated Design Group			04/09/2024
DA-0002	Site analysis	C	Integrated Design Group			30/08/2024
DA-0003	Area Calculations	G	Integrated Design Group			30/08/2024
DA-0004	BASIX Commitment	C	Integrated Design Group			04/09/2024
DA-0100	Site Plan	J	Integrated Design Group			04/09/2024
DA-0200	Demolition Plan	I	Integrated Design Group			30/08/2024
DA-0201	Cut and Fill Plan	C	Integrated Design Group			30/08/2024
DA-1100	Ground Floor Plan	M	Integrated Design Group			04/09/2024
DA-1102	First Floor Plan	I	Integrated Design Group			30/08/2024
DA-1103	Roof Plan	G	Integrated Design Group			30/08/2024
DA-1104	Sub-Floor Plan	E	Integrated Design Group			30/08/2024
DA-2000	Elevations 01	H	Integrated Design Group			30/08/2024
DA-2001	Elevations 02	H	Integrated Design Group			04/09/2024
DA-3000	Sections 01	E	Integrated Design Group			04/09/2024
DA-3001	Sections 02	E	Integrated Design Group			04/09/2024
DA-3002	Sections 03	E	Integrated Design Group			04/09/2024
DA-6201	Window Schedule	A	Integrated Design Group			06/09/2024
DA-9100	Shadow Diagrams	E	Integrated Design Group			30/08/2024
DA-9300	Finishes Schedule	D	Integrated Design Group			30/08/2024
DA-9400	Eye of the Sun Diagrams	D	Integrated Design Group			04/09/2024
Landscape Plans:
LA 01	Cover Sheet	8	Vertical Tree Management & Consultancy			03/09/2024
LA 02	General Layout	8	Vertical Tree Management & Consultancy			03/09/2024
LA 03	Planting Plan	8	Vertical Tree Management & Consultancy			03/09/2024
LA 04	Plants’ Schedule	8	Vertical Tree Management & Consultancy			03/09/2024
LA 05	Plants’ Palette	8	Vertical Tree Management & Consultancy			03/09/2024
LA 06	Standard Details	8	Vertical Tree Management & Consultancy			03/09/2024
Stormwater Management Plans
Sheet 1  of 8	Title Page & General Notes	A-06	Broadcast Engineering & Environmental Consultants			04/09/2024
Sheet 2 of 8	Site Drainage Plan 01	A-06	Broadcast Engineering & Environmental Consultants			04/09/2024
Sheet 3 of 8	Site Drainage Plan 02	A-06	Broadcast Engineering & Environmental Consultants			04/09/2024
Sheet 4 of 8	Rainwater Tank + Infiltration Detail	A-06	Broadcast Engineering & Environmental Consultants			04/09/2024
Sheet 5 of 8	OSD Tank Details	A-06	Broadcast Engineering & Environmental Consultants			04/09/2024
Sheet 6 of 8	Easement Line Long-Section	A-06	Broadcast Engineering & Environmental Consultants			04/09/2024
Sheet 7 of 8	S3qm	Broadcast Engineering & Environmental Consultants
Sheet 8 of 8	Output Summary	Broadcast Engineering & Environmental Consultants
DocumentName				Date	Prepared By
Arboricultural Impact Assessment & Tree Protection Plan v6.1				Vertical Tree Management & Consultancy
BASIX Certificate No. 1409088M_03				06/09/2024	Dartecha Design

Orders

19. The Court orders:

1. The applicant shall pay the respondent’s costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000.00 within 14 days of the date of this order.

2. The appeal is upheld.

3. Development Application X/1342/2023 for the partial demolition of existing structures, tree removal, and construction of a seniors housing development consisting of four dwellings and associated landscape and drainage works in relation to Lot 1 DP 1090970, being 323 Macquarie Road, Springwood is determined by the grant of consent subject to the conditions set out in Annexure A.

P Walsh

Commissioner of the Court

Annexure A

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Decision last updated: 27 September 2024