Kingsford Property Developments Pty Ltd v Blue Mountains City Council

[2022] NSWLEC 1668

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kingsford Property Developments Pty Ltd v Blue Mountains City Council [2022] NSWLEC 1668

Hearing dates:

25 November 2022

Date of orders:

02 December 2022

Decision date:

02 December 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent's costs thrown away by the amended Development Application referred to in paragraph [14](2)(a)(i), in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $13,000, within 28 days from the date of these orders.

(2) The Applicant’s written request prepared by Think Planners dated 16 August 2022, pursuant to clause 4.6 of the Blue Mountains Local Environmental Plan 2015, to vary the height of buildings development standard in clause 4.3 of the Blue Mountains Local Environmental Plan 2015 is upheld.

(3) The Applicant’s written request prepared by Think Planners dated 16 August 2022, pursuant to clause 4.6 of the Blue Mountains Local Environmental Plan 2015, to vary the floor space ratio development standard in clause 4.4 of the Blue Mountains Local Environmental Plan 2015 is upheld.

(4)   The appeal is upheld.

(5)   Development consent is granted to Development Application No. X/236/2020 for a hotel at 198 – 204 Leura Mall, Leura (Lot 1 in Deposited Plan 201282), subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Blue Mountains Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 4.6, 5.10, 6.9, 6.14, 6.17, 6.19, 6.21, 6.23, 7.1, 7.8

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15
Environment Planning and Assessment Regulation 2000 cl 55, Sch 1
Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Chs 8, 9

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

Texts Cited:

Blue Mountains Development Control Plan 2015

Department of Urban Affairs and Planning and Environment Protection Authority, Managing Land Contamination Planning Guidelines, 1998

Category:

Principal judgment

Parties:

Kingsford Property Developments Pty Ltd (Applicant)
Blue Mountains City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
P Hudson (Solicitor)(Respondent)

Solicitors:
Jaku Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/307840

Publication restriction:

No

Judgment

1. COMMISSIONER: Kingsford Property Developments Pty Ltd (the Applicant) has appealed the refusal by Blue Mountains City Council (the Respondent) of its Development Application No. X/236/2020, made with owner’s consent, seeking consent for development of a hotel including accommodation suites and basement car parking (the Proposed Development) at 198 – 204 Leura Mall, Leura (Lot 1 in Deposited Plan 201282), (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Proposed Development was notified in accordance with the provisions of Blue Mountains City Development Control Plan 2015 (BMDCP) between 13 and 27 May 2020. Eighteen (18) submissions were received in response to the initial notification. A Further Amended development application (DA) was renotified from 13 September 2022 to 4 October 2022. Submissions raised concerns in relation to potential impacts arising from the following as matters:

1. Potential damage to adjoining properties during construction, particularly as a result of the basement and jack hammering;

2. inappropriate use of the site as a motel;

3. the size of the development, and its dominance in relation to the existing Culgoa residence on the Subject Site and its established gardens;

4. the height, bulk and scale of the Proposed Development which was said to be an overdevelopment of the site;

5. the development being inconsistent with the character of the area including in relation to streetscape;

6. the heritage significance of Culgoa, particularly noting the design of the development.

7. the proposed external colours of the Proposed Development which were said to be too dark, not traditional or compatible with Culgoa, and which might be paler to mitigate the apparent bulk of the development;

8. the proposed removal of significant trees that comprise the garden setting, particularly at the rear of the Subject Site;

9. overshadowing of adjoining properties and overlooking from proposed windows;

10. excavation and basement scale which was said to be too large;

11. vehicular safety in relation to entering/exiting the basement car park;

12. traffic safety and flows, with potential impacts on parking on the street;

13. stormwater management;

14. adverse economic impacts on adjoining properties;

15. the development being an undesirable precedent.

4. On 25 November 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions.

5. A site inspection had been undertaken prior to the conciliation conference as part of earlier proceedings, and objector submissions were taken during that view.

6. At the conciliation conference the Parties reached an 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 consent to the Applicant’s Further Amended DA amended development application, subject to conditions, noting that the Amended application proposed the following:

1. maintenance of the Culgoa heritage house as existing with no changes to the rear area as previously proposed;

2. relocating the driveway from the southern side to the northern side to access the basement parking;

3. revising the basement parking plan providing 21 spaces in order to provide excavation clearance to a significant tree identified as tree T6;

4. removing the trees to the northern boundary to facilitate construction of the amended driveway location and so retaining the trees that were proposed previously for removal to facilitate access to the southern driveway, these being trees identified as T2, T3, T4, T5 and T6;

5. revising the landscape design to facilitate the above and updating the deep soil and landscape areas and calculations;

6. revising proposed elevations by lowering the roof height on the main building and changing the fenestration and materials on all buildings as per heritage advice;

7. refining the roofs on the other buildings to reduce their height to as low as possible, including swapping stair and lift locations in the southern eastern corner to facilitate this outcome;

8. moving the location of the proposed reception and office from the north eastern corner of the main building at ground level to the single storey building near the front of the site, and on its southern side;

9. the reception building has also been moved 1.5m to the east and has a covered link to the building to its east and a pergola at its front;

10. revising the location of the accessible rooms;

11. revising materials as per heritage advice.

7. 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of Blue Mountains Local Environmental Plan 2015 (BMLEP):

1. the Proposed Development is permissible with development consent in the R1 General Residential Zone under cl 2.3 of BMLEP and the Parties agree, and I am satisfied, that the Applicant’s Further Amended DA is permissible within the R1 zoning of the Subject Site and can be approved having regard to the objectives of the R1 zone;

2. the Height of Buildings (HoB) Map referred to in cl 4.3(2) of BMLEP provides a maximum permissible HoB on the Subject Site of 8m. The Proposed Development has a proposed maximum height of 8.98m, and the Applicant has provided a written request prepared under cl 4.6 of BMLEP seeking to vary the HoB standard, in relation to which the Parties agree, and I am satisfied, that for the reasons provided within the request, which I adopt, that request has adequately addressed the following matters required to be demonstrated (cl 4.6(4)(a)(i) of BMLEP) that:

1. compliance with the HoB development standard is unreasonable or unnecessary in the circumstances of the case as required under cl 4.6(3)(a) of BMLEP, as the development achieves the objectives of the standard notwithstanding the non-compliance, noting that objectives are:

•“ to ensure that the bulk of development is not excessive and relates well to the local context;

•to protect privacy and the use of private open space in new development or on adjoining land;

•to nominate heights that will provide a transition in built form and land use intensity;

•to ensure an appropriate height transition between new buildings and heritage items.”

2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in cl 4.3 of BMLEP as required under cl 4.6(3)(b) of BMLEP, including:

•the non-compliance is a function of the Site’s topography and the requirement to provide a sloped gable roof design consistent with the existing heritage item on the Site, rather than a flat roof;

•the additional height proposed also allows larger areas of landscaping and reduced areas of site coverage to ensure a suitable design response to the Subject Site context, including the heritage item on the Site;

•these reasons are consistent with achievement of the objects of the EP&A Act, including that they will oB standard promote the orderly and economic use and development of land, promote the sustainable management of built and cultural heritage and promote good design and amenity of the built environment.

3. approval of the Proposed Development will be in the public interest because it is consistent with the objectives of cl 4.3 of BMLEP and the objectives for development in Zone R1 General Residential under BMLEP as required under cl 4.6(4)(a)(ii) of BMLEP.

3. the Floor Space Ratio Map referred to in cl 4.4(2) of BMLEP provides a permissible floor space ratio (FSR) for development on the Subject Site is 0.4:1 and the Proposed Development has an FSR of 0.44:1 and the Applicant has provided a written request prepared under cl 4.6 of BMLEP seeking to vary the FSR standard, in relation to which the Parties agree, and I am satisfied, that for the reasons provided within the request, which I adopt, that request has adequately addressed the following matters required to be demonstrated (cl 4.6(4)(a)(i) of BMLEP) that:

1. compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case as required under cl 4.6(3)(a) of BMLEP as the development achieves the objectives of the standard notwithstanding the non-compliance, noting that objectives are:

•“to ensure that development is compatible with the bulk, scale and character of existing and future surrounding development,

•to provide for a built form that is compatible with the role of the town and major centres”

2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in cl 4.4 of BMLEP as required under cl 4.6(3)(b) of BMLEP, including:

•the design of the Proposed Development has had particular regard to the heritage item on the Subject Site and the non-compliance with the FSR development standard ensures that the proposed building’s bulk and scale is consistent with the desired future character of the area; and

•compliance with the FSR development standard would require removal of hotel rooms which not justified in circumstances where the Proposed Development has been designed to be responsive to both the heritage item on the Site and the character of the locality;

•these reasons are consistent with achievement of the objects of the EP&A Act, including that they will promote the orderly and economic use and development of land, promote the sustainable management of built and cultural heritage and promote good design and amenity of the built environment.

3. approval of the Proposed Development will be in the public interest because it is consistent with the objectives of cl 4.4 of BMLEP and the objectives for development in Zone R1 General Residential under BMLEP, as required under cl 4.6(4)(a)(ii) of BMLEP;

4. the provisions of cl 5.10 of BMLEP in relation to heritage conservation applies to the Proposed Development, and in relation to this:

1. the Proposed Development is on land on which a heritage item is located and also within the vicinity of land on which other heritage items are located and land that is within a heritage conservation area (the Leura South Heritage Conservation Area);

2. under cl 5.10(4) of BMLEP, a consent authority, or the Court on appeal, must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the Proposed Development on the heritage significance of the item or area concerned; and

3. the Parties advise, and I am satisfied, that the Applicant’s Amended DA has been prepared such that it is response the Parties’ consideration of the effect of the Proposed Development on the heritage significance of the heritage item on the Subject Site and the Leura South Heritage Conservation Area, including matters identified by the Parties’ respective heritage experts and reports prepared buy those experts;

4. I am further satisfied that the Applicant’s Further Amended DA will not have an adverse effect on the heritage significance of the heritage item on the Site or any other heritage item in the vicinity of the Site, or on the Leura South Heritage Conservation Area; and

5. approval of the Applicant’s Further Amended DA is consistent with the provisions of cl 5.10 of BMLEP;

5. in relation to the provisions of cl 6.9 of BMLEP concerning stormwater management which apply to the Proposed Development the Parties agree, and I am satisfied, that the Applicant’s Further Amended DA incorporates best practice water sensitive urban design principles, avoids any adverse impacts caused by stormwater runoff on adjoining properties by addressing the matters for consideration in cl 6.9(d), and 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;

6. in relation to the provisions of cl 6.14 of BMLEP concerning earthworks which applies to the Proposed Development, the Parties agree, and I am satisfied, that the matters for consideration in cl 6.14(3) have been considered and satisfactorily addressed by the Applicant’s Further Amended DA;

7. in relation to the provisions of cl 6.17 of BMLEP concerning consideration of character and landscape, and which apply to the Proposed Development, the Parties agree, and I am satisfied, that the Applicant’s Further Amended DA has addressed the matters for consideration in cl 6.17(3) by ensuring that the scale and massing of the Applicant’s proposed hotel building, the use and materials/colours, the building form and design, the location, the impacts on amenity, the capacity and the garden setting are all acceptable and consistent with the provisions of cl 6.17 of BMLEP;

8. in relation to the provisions of cl 6.19 of BMLEP concerning design excellence which apply to the Proposed Development, the Parties agree, and I am satisfied that the Applicant’s Further Amended DA exhibits design excellence, having regard to the matters set out in clause 6.19(4) of BMLEP;

9. in relation to the provisions of cl 6.21 of BMLEP concerning sustainable resource management which apply to the Proposed Development, the Parties agree, and I am satisfied that the matters identified in cl 6.21(2) have been considered such that the Proposed Development includes ecologically sustainable development practices in relation to energy, water and waste management in particular;

10. in relation to the provisions of cl 6.23 of BMLEP concerning essential services, which apply to the Proposed Development, the Parties agree, and I am satisfied, that all services that are essential to the development are available or adequate arrangements have been made to make them available when required, including in relation to suitable vehicular access;

11. in relation to the provisions of cl 7.1 of BMLEP concerning development in villages, and which apply to the Proposed Development, the Parties agree, and I am satisfied, that the Applicant’s Further Amended DA is consistent with the objectives for development within the Leura Precinct, and more specifically on land identified as being within “Leura Precinct R1- LE03” in the Built Character Map referenced in cl 7.8(3) BMLEP, which are:

1. to promote the tourism role of Leura village,

2. to accommodate a diverse mix of dwellings and retail and other business-related services that service the local community as well as visitors,

3. to maintain and enhance the historically distinctive pattern of detached cottages that are surrounded by gardens and freestanding garages by conserving existing trees that provide visually significant streetscape features and ensuring that landscaping complements and extends the established pattern of tall canopy trees that are located primarily alongside property boundaries,

4. to promote high levels of residential amenity for both future residents and existing neighbouring properties,

5. to promote new buildings that are consistent or compatible with the scale, bulk and architectural character of existing houses and cottages,

6. to encourage restoration of traditional architectural forms and details for existing early 20th century cottages and houses,

7. to provide on-site parking that does not dominate the street frontage and that is integrated with the design of surrounding garden areas.

2. in relation the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), the Parties advise, and I am satisfied, that:

1. pursuant to the provisions of s 4.6(1) of SEPP R&H the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development;

2. the Parties advise, and I am satisfied, that the Subject Site is not listed on 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.

3. further, the Applicant has submitted a Phase 1 Preliminary Environmental Site Assessment dated 11 April 2019; and

4. on the basis of the Applicant’s Phase 1 report and the historical use of the Subject Site, I am satisfied that the provisions of cl 4.6 of SEPP R&H have been addressed and the land is suitable for the Proposed Development;

3. In relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C)

1. the provisions of Ch 8 (Sydney drinking water catchment) of SEPP B&C apply to development on the Subject Site, and in relation to this:

1. the Subject Site is situated within the Sydney Drinking Water Catchment pursuant to the Drinking Water Catchment Map referred to in s 8.5 of the SEPP B&C, and accordingly, the Applicant’s Further Amended DA requires the concurrence of WaterNSW pursuant to the policy’s s 8.9;

1. the Further Amended DA was referred to WaterNSW on 13 September 2022 and on 4 October 2022 WaterNSW issued correspondence, which included general terms of approval (GTAs), and in which it confirmed that the Proposed Development can achieve a neutral or beneficial effect on water quality provided appropriate conditions are included in any development consent and are subsequently implemented; and

2. the Parties agree, and I am satisfied, that conditions of consent consistent with the GTAs provided by WaterNSW have been proposed by the Parties for imposition with the grant of consent for implementation by the Applicant;

2. the provisions of Ch 9 (Hawkesbury-Nepean River) of SEPP B&C apply to development on the Subject Site, and in relation to the Applicant’s Further Amended DA the Parties advise, and In am satisfied, that:

1. Chapter 9 aims to protect the environment of the Hawkesbury-Nepean River system by ensuring that the impacts of future land uses are considered in a regional context;

2. sections 9.4 and 9.5 of SEPP B&C contain provisions that must be considered in assessing a development application such as;

3. it is consistent with the aims of Ch 9 of the SEPP B&C;

3. it is consistent with the strategies listed in the Action Plan of the Hawkesbury-Nepean Environmental Planning Strategy and the specific planning policies and related recommended strategies, which are applicable to the proposed development at s 9.5 of SEPP B&C;

4. any feasible alternatives to the development have been considered;

5. the relationship between the impacts of the Further Amended DA and the environment will be adequately addressed and monitored; and

6. the applicable provisions of Ch 9 of SEPP B&C have been met;

4. the Parties agree, and I am satisfied, that:

1. the Proposed Development is acceptable with respect to the provisions of BMDCP, subject to conditions; and

2. there are no provisions of BMDCP that would form a basis for refusal of the Proposed Development;

5. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act, including in relation to the submissions of the objectors (see above at [3]) which is a relevant consideration under s 4.15(1)(d) of the EP&A Act, and which the Parties agree have been considered in the Applicant’s Further Amended DA.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

3. approval of the Proposed Development is in the public interest.

10. Further, 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

12. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

13. The Court notes that:

1. Blue Mountains City Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000 (NSW), to the Applicant amending Development Application No. X/236/2020 in accordance with the following amended plans and documents:

1. the following amended architectural plans prepared by PTI Architecture:

Drawing No.	Drawing Title	Date
00	Cover Sheet	September 2022
DA 01, Rev zk	Location Plan	1 September 2022
DA 02, Rev zk	Project Information	1 September 2022
DA 03, Rev zk	Site Analysis Plan	1 September 2022
DA 04, Rev zk	Basement Plan	1 September 2022
DA 05, Rev zk	Lower Ground Floor Plan	1 September 2022
DA 06, Rev zk	Upper Ground Floor Plan	1 September 2022
DA 07, Rev zk	First Floor Plan	1 September 2022
DA 08, Rev zk	Roof Plan	1 September 2022
DA 09, Rev zk	Sections	1 September 2022
DA 10, Rev zk	Sections	1 September 2022
DA 11, Rev zk	Sections	1 September 2022
DA 12, Rev zk	Elevations	1 September 2022
DA 13, Rev zk	Elevations	1 September 2022
DA 14, Rev zk	Elevations	1 September 2022
DA 15, Rev zk	Height Plane Analysis	1 September 2022
DA 16, Rev zk	Shadow Diagrams June 21 – 9am	1 September 2022
DA 17, Rev zk	Shadow Diagrams June 21 – 10am	1 September 2022
DA 18, Rev zk	Shadow Diagrams June 21 – 11am	1 September 2022
DA 19, Rev zk	Shadow Diagrams June 21 – 12pm	1 September 2022
DA 20, Rev zk	Shadow Diagrams June 21 – 1pm	1 September 2022
DA 21, Rev zk	Shadow Diagrams June 21 – 2pm	1 September 2022
DA 22, Rev zk	Shadow Diagrams June 21 – 3pm	1 September 2022
23	Survey Version C	14 April 2021

2. the following updated landscape plan prepared by Taylor Brammer Landscape Architects Pty Ltd:

Drawing No.	Drawing Title	Date
LA00, Rev G	Cover Sheet & Context Plan	17 August 2022
LA01, Rev G	Tree Retention & Removal Plan	17 August 2022
LA02, Rev G	Landscape Plan	17 August 2022
LA03, Rev G	Indicative Plant Schedule & Planting Character	17 August 2022
LA04, Rev G	Planting Plan	17 August 2022
LA05, Rev G	Landscape Section AA	17 August 2022
LD01, Rev G	Typical Details	17 August 2022

3. the following updated stormwater drawings prepared by GEBA Consulting:

Drawing No.	Drawing Title	Date
SW01, Rev F	Cover Sheet & Specifications	17 August 2022
SW02, Rev F	Erosion & Sediment Control Plan	17 August 2022
SW03, Rev F	Basement Plan	17 August 2022
SW04, Rev F	Ground Floor Plan	17 August 2022
SW05, Rev F	OSD & DRAINS Model Results	17 August 2022
SW06, Rev F	WSUD & MUSIC Model Catchment Plan	17 August 2022
SW07, Rev F	WSUD & MUSIC Model Results	17 August 2022
SW08, Rev F	Details – Sheet 1	17 August 2022
SW09, Rev F	Details – Sheet 2	17 August 2022

2. a written request prepared by Think Planners dated 16 August 2022, pursuant to clause 4.6 of the Blue Mountains Local Environmental Plan 2015, to vary the height of buildings development standard in clause 4.3 of the Blue Mountains Local Environmental Plan 2015;

3. a written request prepared by Think Planners dated 16 August 2022, pursuant to clause 4.6 of the Blue Mountains Local Environmental Plan 2015, to vary the floor space ratio development standard in clause 4.4 of the Blue Mountains Local Environmental Plan 2015;

Orders

14. The Court orders that:

1. The Applicant is to pay the Respondent's costs thrown away by the amended Development Application referred to in paragraph [14](2)(a)(i), in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 , in the amount of $13,000, within 28 days from the date of these orders;

2. The Applicant’s written request prepared by Think Planners dated 16 August 2022, pursuant to clause 4.6 of the Blue Mountains Local Environmental Plan 2015, to vary the height of buildings development standard in clause 4.3 of the Blue Mountains Local Environmental Plan 2015 is upheld;

3. The Applicant’s written request prepared by Think Planners dated 16 August 2022, pursuant to clause 4.6 of the Blue Mountains Local Environmental Plan 2015, to vary the floor space ratio development standard in clause 4.4 of the Blue Mountains Local Environmental Plan 2015 is upheld;

4. The appeal is upheld;

5. Development consent is granted to Development Application No. X/236/2020 for a hotel at 198 – 204 Leura Mall, Leura (Lot 1 in Deposited Plan 201282), subject to the conditions of consent in Annexure ‘A’;

M Chilcott

Commissioner of the Court

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Annexure A

Decision last updated: 02 December 2022