Green v Blue Mountains City Council

[2024] NSWLEC 1191

Land and Environment Court

New South Wales

Medium Neutral Citation:

Green v Blue Mountains City Council [2024] NSWLEC 1191

Hearing dates:

Conciliation Conference 2 April 2024

Date of orders:

17 April 2024

Decision date:

17 April 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   The clause 9A variation request, prepared by Cityscape, dated November 2023, is upheld.

(3)   Development consent is granted to Development Application No. X/1957/2022 for the demolition of the existing dwelling and structures, and construction of a new dwelling house and in-ground swimming pool at Lot 29 in Deposited Plan 6665, known as 14 Euroka Road, Glenbrook NSW 2773, subject to the conditions of consent at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – residential dwelling – conciliation conference – agreement between the parties –- orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Blue Mountains Local Environmental Plan 2005, cll 13, 15, 23, 32, 44, 57, 60, 65, 78, 88, 94, 98, 103, 105, Sch 2

Blue Mountains Local Environmental Plan 2015, cl 1.3

Environmental Planning and Assessment Regulation 2021, ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9

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:

NSW Rural Fire Service, Planning for Bushfire Protection, 2019

Community Participation Plan, Blue Mountains City Council, February 2021

Category:

Principal judgment

Parties:

Douglas Malcolm Green (Applicant)
Blue Mountains City Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor)(Applicant)
P Hudson (Solicitor)(Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/289270

Publication restriction:

Nil

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/1957/2022 seeking consent for the demolition of the existing structures and the construction of a two-storey dwelling house with attached garage, alfresco, in-ground pool and associated landscaping (the Proposed Development) at 14 Euroka Road, Glenbrook, legally described as Lot 29 in DP 6665 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 2 April 2024. I presided over the conciliation conference.

3. 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. Amended plans have been prepared by the Applicant which the parties agree resolve the contentions raised by the Respondent in the Statement of Facts and Contentions filed 17 October 2023. The decision agreed between the parties involves the Court upholding the appeal and granting development consent to the development application, subject to conditions.

4. 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.

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

6. 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 the Blue Mountains Local Environmental Plan 2005 (BLEP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note to which I have had regard in setting out my reasons as to how each jurisdictional prerequisite has been satisfied.

7. The Site is identified as “Deferred matter” on the Land Application Map pursuant to the Blue Mountains Local Environmental Plan 2015 (BLEP 2015) which came into force on 21 December 2015. In accordance with cl 1.3 of the BLEP 2015, the provisions of BLEP 2015 do not apply to the Proposed Development. Accordingly, the applicable local environmental plan is the Blue Mountains Local Environmental Plan 2005 (BLEP).

8. The Site is identified as being ‘bushfire prone land’ pursuant to the Bushfire Prone Land Map verified by the Commissioner of the NSW Rural Fire Service for the Respondent’s Local Government Area. Clause 78 of the BLEP relates to consideration of bush fire protection and the Proposed Development is supported by a detailed Bushfire Assessment Report prepared by Building Code and Bushfire Hazard Solutions Pty Ltd dated 18 October 2022 filed with the Class 1 Application at Tab 13. The Bushire Assessment Report makes express reference to the relevant specifications and requirements of Planning for Bushfire Protection (cl 78(2), BLEP) and concludes that the development will provide a reasonable and satisfactory level of bushfire protection in accordance with its recommendations.

9. The Site is zoned Living – Conservation zone pursuant to the BLEP and the Proposed Development is characterised as a “dwelling house” which is permissible with consent pursuant to the Land Use Matrix in cl 32 of the BLEP. Demolition is permissible with consent pursuant to cl 32(3A) of the BLEP.

10. The parties agree that the Proposed Development is consistent with the objectives of the Living – Conservation zone because the Proposed Development provides a built form with a similar scale, character and design quality to other development in the vicinity of the site, while being landscaped in a traditional garden setting. The objectives for the Living-Conservation zone are as follows (cl 23, BLEP):

(a)    To retain and enhance the character of residential areas that are formed by larger allotments and single dwelling houses within a prominent traditional garden setting.

(b)   To enhance the landscape character and setting along roads of heritage significance where the road forms a visually significant entrance to a village or a linkage/pathway between major visitor destinations.

(c)   To ensure development, including development within adjoining road reserves, retains the prominence of landscape elements and traditional garden settings.

(d)   To ensure that established gardens are retained or landscape settings are re-established as part of any development of land, including development involving major alterations and additions.

(e)   To allow for a limited range of non-residential land uses where these are conducted in association with a predominantly residential land use and are consistent with the retention of a residential character based on a landscape or open space setting.

11. The Site adjoins land in another zone, namely, C4 Environmental Living pursuant to the BLEP 2015. The objectives of the adjoining C4 Environmental Living Zone are as follows:

To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

To ensure that residential development does not have an adverse effect on those values.

To preserve and re-establish native bushland in those areas that exhibit a predominantly bushland character, where consistent with the protection of assets from bush fire.

To ensure that the form and siting of buildings are appropriate for, and harmonise with, the bushland character of the locality.

12. Accordingly, and pursuant to cl 13 of the BLEP, the Court is satisfied that the development complies with the Living – Conservation zone objectives and that the Proposed Development is permissible within the zone. Further, the Court is satisfied that the Proposed Development will not compromise adjoining land from achieving the objectives of Zone C4 Environmental Living and will not result in adverse impacts to development on that land.

13. The parties agree that the Proposed Development has been assessed in accordance with the provisions that apply to the land, as specified within Pt 2 of Sch 2 of the BLEP (cl 15, BLEP).

14. The Proposed Development does not comply with the building height and height at eaves development standards in cl 1(1) in Sch 2, Pt 2, Div 1 of BLEP, or the exceptions in cl 1(2) in Sch 2, Pt 2, Div 1 of BLEP. The Applicant relies on a written request prepared by Cityscape, dated November 2023, pursuant to cl 9A of BLEP, seeking an exception to the development standard (Written Request).

15. Pursuant to cl 9A(3) of the BLEP development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant for development consent has demonstrated that—

(a)  compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b)  there are sufficient environmental planning grounds to justify the contravention of the development standard.

16. The maximum building height permissible according to BLEP Sch 2, Pt 2, Div 1, cl 1 for development not within a Protected Area – Escarpment Area, is 6.5m with a maximum height at eaves of 4.5m. The development proposes a building height of 7.659m and an eaves height of 5.6m

17. The parties agree and the Court would be satisfied pursuant to cl 9A(3) that the compliance with the development standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the development standard.

18. The Court is satisfied that the applicant’s written request seeking an exception to the height development standard in the BLEP has adequately demonstrated, at pages 11 to 19, that compliance with the development standard is unreasonable or unnecessary in the circumstances because the underlying reasons, performance measures or objectives for the development standard provided in subcll (2)(a)-(b) of Sch 2, Part 2, Div 1 are achieved notwithstanding the non-compliance with the standard.

19. The Court is satisfied that the applicant’s written request seeking an exception the height development standard in the BLEP has adequately demonstrated at pages 20 to 24 that there are sufficient environmental planning grounds to justify the contravention of the development standard because of the various existing Site conditions.

20. Pursuant to BLEP Sch 2, Pt 2, Div 1, cl 2(2)(b), a maximum building width of 15m is permitted. The development as amended proposes a compliant maximum building width of 15 m.

21. Pursuant to BLEP Pt 2, Div 1, cl 3(2), the permissible site coverage for the development is 312.5m². The development proposes a site coverage of 333.40m². According to BLEP Pt 2, Div 1, cl 3(3):

(3) Consent may be granted for development that does not comply with the maximum site cover in subclauses (1) and (2), but only where the development includes measures designed by a suitably qualified person to improve stormwater management, such as infiltration measures and detention systems, that demonstrate that the development has a beneficial effect on stormwater quality, quantity and flow characteristics.

22. The stormwater management proposed provides a beneficial effect on stormwater quality, quantity and flow characteristics, and the increased site coverage is acceptable in the circumstances.

23. Pursuant to BLEP Pt 2, Div 2, cl 2, the development application has been accompanied by a detailed landscaping plan which demonstrates the matters set out in subcl (2) and includes the information in subcl (3).

24. The parties agree that the cl 44(4) of the BLEP is applicable and that the Proposed Development is designed and sited so as to have no adverse environmental impact pursuant to this provision.

25. In relation to site disturbance and erosion control, the terms of cl 56 of the BLEP need to be satisfied. The Proposed Development seeks to limit disturbance by siting the development in the already cleared areas located in the front and central sections of the Site (BLEP, cl 56(1)) and the Proposed Development is supported by a Sediment and Erosion Control Plan which provides for suitable sediment and erosion control measures to be implemented throughout the construction phase (BLEP, cl 56(3)). Accordingly, development consent may be granted because the terms of cl 56 of the BLEP are satisfied.

26. Stormwater management is dealt with by Ch 9 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) and cl 57 of the BLEP.

27. Chapter 9 of the Biodiversity and Conservation SEPP is titled Hawkesbury-Nepean River and remains applicable to the Proposed Development notwithstanding its subsequent repeal. Chapter 9 seeks to protect the environment of the Hawkesbury-Nepean River system by ensuring that the impacts of the future land uses are considered in a regional context. The Proposed Development is consistent with the aim under s 9.2 of the Biodiversity and Conservation SEPP for the following reasons:

It does not generate significant new stormwater volumes or pollutants;

It will connect to existing trunk drainage systems that suitably manage stormwater from the surrounding suburban area;

It provides a development that responds suitably to the sites limited flood risks; and

It proposes to manage potential erosion and sedimentation risks during the construction phase through the implementation of sedimentation plans.

28. The development application is supported by stormwater plans prepared by ACOR, Issue D, dated 26 February 2024. The Court is satisfied that the development application meets the requirements of the Biodiversity and Conservation SEPP and that the development incorporates effective measures to manage stormwater run-off for the life of the development pursuant to the matters listed in cl 57(1) of the BLEP.

29. Clause 60 of the BLEP requires the consideration of character and landscape. The parties agree that the Proposed Development has been designed in consideration of the existing character and landscape, giving regard to scale and massing, materials and finishes, roof form and windows, and siting of the development. The parties agree, and the Court is satisfied, that development is consistent with and enhances the established character and streetscape of the surrounding area pursuant to the considerations listed in cl 60(1).

30. The Proposed Development is supported by amended landscape plans which comply with the requirement of cl 65(2) of the BLEP. The parties agree, and the Court is satisfied that, the landscape plans demonstrate the matters listed at cl 65(1) of the BLEP.

31. The development is supported by flood modelling prepared by ACOR Consultants which informed the stormwater plans to ensure that the development will not:

(a)    adversely impede the flow of flood waters on that land or on land in its immediate vicinity, or

(b)    imperil the safety of persons on that land or on land in its immediate vicinity, or

(c)    aggravate or be likely to result in erosion, siltation or the destruction of vegetation, or

(d)    cause any adverse effect on the water table of the land or of the land in its immediate vicinity.

32. Accordingly, the parties agree and the Court is satisfied that the development satisfies the requirements of cl 88(1) of the BLEP regarding land subject to inundation.

33. As the Site is already provided with all the required services and infrastructure to support urban development, the terms of cl 94 of the BLEP are satisfied and no additional servicing would be required as a result of the Proposed Development.

34. Vehicle access is provided directly via a modified gravel driveway that is located on the existing driveway alignment from Euroka Road, satisfying cl 98 of the BLEP regarding access to land from a public road.

35. As required by cl 103 of the BLEP regarding privacy for dwelling houses and granny flats, the Proposed Development provides generous side setbacks and a single-storey scale, which together with the perimeter fencing and landscaping, will ensure that the visual privacy of residents of buildings on adjoining allotments is not significantly impacted and direct views into the principal private open spaces or habitable rooms are effectively screened.

36. The State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 continues to apply to the Development Application by operation of s 4.2(1)(a) of the State Environmental Planning Policy (Sustainable Buildings) 2022. The Development Application is supported by BASIX Certificate No. 1345840S_02 issued by Building and Energy Consultants Australia, dated 18 March 2024. This certificate confirms that:

1. the Proposed Development passes the BASIX requirements;

2. the requirement in s 27 of the Environmental Planning and Assessment Regulation 2021 is satisfied;

3. the development achieves a 5.6 star NatHTERS rating; and

4. meets the requirements of cl 105 of the BLEP regarding energy efficiency.

37. The Site and 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, satisfying the requirement of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

38. The Development Application was notified by Council to nearby properties in accordance with the EPA Act and the Community Participation Plan from 2 December 2022 to 16 December 2022. One submission was received which raised issues in relation to the following:

1. Concern about removing existing vegetation and replacement by a fence and the impact of this on privacy for the occupants of 16 Euroka road.

2. Noted the storm drain in the front of the garden at 14 Euroka Road.

3. Noted an inconsistency on the survey relating to the roof materials of the dwelling at 16 Euroka Road.

4. Concern about how asbestos will be removed.

5. Impact of the length of the southern wall on the amenity and privacy of the dwelling at 16 Euroka Road.

6. Concern regarding stormwater management.

7. Concern regarding the impact of the dwelling on the existing streetscape character.

39. The Proposed Development, as amended, has addressed the concerns raised in the submission by way of an amended landscape plan which provides appropriate vegetation, amended stormwater plans informed by flood modelling which appropriately deals with stormwater and flooding concerns, and amended architectural plans that provide for an appropriate dwelling in terms of bulk, scale and character. The appropriate removal of asbestos is provided for within Council’s conditions as agreed by the parties.

40. 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.

41. 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:

42. The Court notes:

1. That the Respondent as the relevant consent authority has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending Development Application No X/1957/2022 in accordance with the plans and documents listed below:

1. Clause 9A Variation Request, prepared by Cityscape, dated November 2023;

2. BASIX Certificate 1345840S_02, prepared by Building Energy Consultants Australia, dated 18 March 2024;

1. Architectural Plans, prepared by GUD Studio, Issue F, dated 24 February 2024:

Drawing No.	Drawing Title
DA010	Cover page
DA100	Survey and Site Analysis
DA150	Site/Roof Plan
DA205	Basement Floor Plan
DA210	Ground Floor Plan
DA300	Elevations
DA350	Elevations
DA400	Sections
DA405	Sections
DA470	Sections
DA500	Window and Door Schedule
DA505	Window and Door Schedule
DA540	Area Schedule
DA550	Shadow Diagrams
DA570	Construction Management Plan
DA800	Finishes Schedule
DA810	Height Study

4. Landscape Plans prepared by Paul Scrivener Landscape, Issue G, dated 5 March 2024:

Drawing No.	Drawing Title
1 of 4	Landscape Site Plan
2 of 4	Details Levels Plan
3 of 4	Planting Plan
4 of 4	Detail Plan

5. Engineering Plans prepared by ACOR, Issue D, dated 26 February 2024:

Drawing No.	Drawing Title
C1	Cover Sheet & Notes
C2	Impervious Area Summary
C3	Stormwater Management Plan – Sheet 1 of 2
C4	Stormwater Management Plan – Sheet 2 of 2
C5	Stormwater Management Details – Sheet 1 of 2
C6	Stormwater Management Details – Sheet 2 of 2
C7	Water Quality Report
C8	Erosion & Sediment Control Plan
C9	Erosion & Sediment Control Notes & Details
C10	Site Excavation Plan

Orders:

43. The Court orders:

1. The appeal is upheld.

2. The clause 9A variation request, prepared by Cityscape, dated November 2023, is upheld.

3. Development consent is granted to Development Application No. X/1957/2022 for the demolition of the existing dwelling and structures, and construction of a new dwelling house and in-ground swimming pool at Lot 29 in Deposited Plan 6665, known as 14 Euroka Road, Glenbrook NSW 2773, subject to the conditions of consent at Annexure ‘A’.

E Espinosa

Commissioner of the Court

**********

Annexure A

Decision last updated: 18 April 2024