Lincoln v Blue Mountains City Council

[2023] NSWLEC 1763

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lincoln v Blue Mountains City Council [2023] NSWLEC 1763

Hearing dates:

Conciliation conference on 29 June 2023; 3 October 2023; 30 November 2023

Date of orders:

13 December 2023

Decision date:

13 December 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent no. 2567 is modified in the terms in Annexure A.

(3) Development consent no. 2567 as modified by the Court is Annexure B.

Catchwords:

APPEAL – modification application – alterations and additions to existing professional consulting rooms (chiropractor) – conciliation conference – agreement between the parties - orders

Legislation Cited:

Blue Mountains Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 5.10, 6.1, 6.6, 6.7, 6.9, 6.14, 6.17, 6.23

Environmental Planning and Assessment Act 1979, s 4.55

Environmental Planning and Assessment Regulation 2021, s 113

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.99, 2.100, 2.120, 2.122, Sch 3

Category:

Principal judgment

Parties:

Patrick James Lincoln (First Applicant)
Emily Kate Healey (Second Applicant)
Blue Mountains City Council (Respondent)

Representation:

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

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

File Number(s):

2023/23909

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following the Blue Mountains City Council’s refusal of the applicant’s modification application (no XM/2567/2022/A) for alterations and additions to the development consent (no 2567) which approved professional consulting rooms (chiropractor) at 60 Macquarie Road, Springwood (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 was held on 29 June 2023, 3 October 2023 and 30 November 2023. I presided over the conciliation conference.

3. During the conference, the applicants agreed to the following amendments to the application:

1. Internal floorplan layout changes

2. Reconfiguration of the car park area inclusive of one additional parking space (5 to 6 spaces)

3. Improved accessibility to car park and building.

4. A new stormwater drainage system for the car park area.

5. Landscaping to the site to enhance the landscape setting and biodiversity of the site.

4. The Council, being satisfied that the amended application addresses the contentions in its Statement of Facts and Contentions, has executed a s34 agreement setting out the terms of a decision in the proceedings that would be acceptable to it. This decision involves the Court exercising the function under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent no. 2567.

5. 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 that regard I note the following matters.

Jurisdictional preconditions

EPA Act

6. Section 4.55(2)(a) Modification of consents states:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)…

7. The parties submit, and I accept that the application to modify development consent no. 2567 is substantially the same development as the development for which consent was original granted for the reasons identified at pp 14-16 in the Statement of Environmental Effects lodged in support of the application prepared by Cityscape Planning & Projects dated October 2022.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

8. Section 4.6 of the RH SEPP requires the Court to consider whether the site is contaminated before the modification application is determined.

9. The Council submits that there is no known or likely potential of previous use of the site that would give rise to the potential for contamination. Therefore, I accept that s 4.6(1) of the RH SEPP is satisfied. Accordingly, s 4.6(2) of the RH SEPP is not engaged and consideration of a report specifying the findings of a preliminary investigation of the site is not required.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

Rail corridors

10. Sections 2.99 and 2.100 seek to manage the impacts of and from development that is in close proximity to rail corridors. The modification application is not within 25m of a rail corridor, does not propose excavation and does not propose a sensitive land use that could be adversely impacted by noise or vibration impacts from the rail line.

Road corridors

11. Sections 2.120 and 2.122 seek to manage the impacts of and from development that is in close proximity to road corridors.

12. The site is located in close proximity to Macquarie Road. The modification application does not seek to change the land use. There is no adverse impact from noise or vibration impacts from the road corridor.

13. The use of health services facility is not listed in Sch 3 Traffic-generating development to be referred to TfNSW of the TI SEPP.

14. The modification application was referred to TfNSW by the Council and a response was received from TfNSW. The response from TfNSW noted that:

“TfNSW does not have an approval or concurrence role for the referral under s138 of the Roads Act 1993 as no road works are proposed…”

15. The modification application is supported by a Traffic and Parking Impact Assessment prepared by Traffic & Safety Solutions Pty Ltd dated 21 September 2022. The report concludes that:

“… the traffic & parking impacts of the proposed development is minimal and will not create any adverse impacts on surrounding streets and therefore the development proposal is worthy of Council’s approval.”

16. The parties submit, and I accept that the proposal meets the requirements of the TI SEPP.

Blue Mountains Local Environmental Plan 2015 (LEP)

Land Use Table

17. The land is zoned Part R2 Low Density Residential and Part C2 Environmental Conservation. The zoning plan of the site is provided in the below image, which demonstrates the spatial extent of each zone on the site. The site is outlined in purple for reference.

Part R2 Low Density Residential

18. Development for the purposes of health consulting rooms is permitted with consent in this zone.

19. Clause 2.3 of the LEP indicates that regard must be had to the zone objectives when determining the modification application. The zone objectives for the R2 Low Density Residential zone are:

• 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 predominate scale and height of adjoining buildings and do not unreasonably detract from amenity of adjacent residents.

20. The modification application, as amended, is for alterations and additions to existing professional consulting rooms. It will provide health facilities within an existing dwelling for the local residents in a residential built form that is consistent with the bulk and scale of adjacent residential development. The new fencing and landscaping will improve and enhance the residential character of the area and minimises impact on existing amenity and environmental quality with the proposed stormwater design, tree protection and planting. The parties submit, and I accept that the modification application, as amended, is compatible with the R2 zone objectives.

Part C2 Environmental Conservation

21. The modification application, as amended, does not propose any development within part of the site zoned C2 Environmental Conservation.

22. Clause 2.3 of the LEP indicates that regard must be had to the zone objectives when determining the modification application. The zone objectives for the C2 zone are:

• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

• To encourage land restoration works on disturbed bushland areas.

• To restrict the development of private land that would be inappropriate because of physical characteristics or high bus fire hazards, but only where less restricted development is permitted elsewhere on the land due to split zoning.

• To maintain biodiversity in the Blue Mountains.

23. The modification application, as amended, does not propose any development works within the part of the land zoned C2 Environmental Conservation. The modification application, as amended, includes removal of overgrown vegetation and proposes appropriate planting within the C2 zone which will improve the ecological and bushland valuers of the site and local area, together with biodiversity within the Blue Mountains.

Clause 4.3 Height of buildings

24. The maximum permissible building height for the site is 6.5m. The height of the existing dwelling is approximately 5.7m. This clause is satisfied.

Clause 4.4 Floor space ratio (FSR)

25. Clause 4.4(2) of the LEP and the Floor Space Ratio Map fixes a maximum FSR of 0.35:1. The existing building has a FSR of 0.13:1. This clause is satisfied.

Clause 5.10 Heritage

26. The site is not identified as a heritage item but is identified on the Heritage Map as being located within the Macquarie Road East Conversation Area (SP056). The modification application is supported by a Heritage Impact Statement prepared by Cityscape Planning & Projects dated October 2022. The report concludes at p 15 that “The development proposal seeks only to undertake limited modification to an existing health services facility located within a Heritage Conservation Area (HCA).”

Clause 6.1 – Impact on environmentally sensitive land

27. The site is identified on Council’s environmental maps as accommodating ecological buffer areas at the southern section of the site and significant vegetation – Blue Mountains Shale Cap Forest. The below figure provides the overlay of the relevant LEP environmental maps for the site.

28. Although mapped as significant vegetation, the site only accommodates one large tree at the rear which forms part of the Blue Mountains Shale Cap Forest. The modification application proposes to retain and protect this tree. Further, the application introduces a significantly improved stormwater management regime inclusive of WSUD measures that will cause positive impacts on the quality of stormwater leaving the site. The parties submit, and I accept that this clause has been satisfactorily addressed.

Clause 6.6 Protected area – vegetation constraint area

29. The modification application, as amended, has removed any proposed development works from the C2 zone. The site has only one large tree, Tree 5, which forms part of the Blue Mountains Shale Cap Forest. The modification application proposes to retain the tree and includes tree protection measures. The conditions of consent include additional tree protection measures. The parties submit, and I accept that this clause has been satisfactorily addressed.

Clause 6.7 Protected area – ecological buffer area

30. The northern section of the site is identified as being an ecological buffer area. As outlined above, Tree 5 is the only tree which forms part of the vegetation unit. The modification application, as amended, provides for tree protection measures for the TPZ of Tree 5, including the material for the driveway to be gravel cell to provide water infiltration to the TPZ Tree 3.

Clause 6.9 Stormwater management

31. The modification application, as amended, is supported by stormwater management plans which provide for the collection and disposal of stormwater with both re-use of stormwater and infiltration system. The parties submit, and I accept that this clause has been satisfactorily addressed.

Clause 6.14 Earthworks

32. The modification application, as amended, does not propose any significant earthworks. This clause is not engaged.

Clause 6.17 Consideration of character and landscape

33. The modification application, as amended, provides a suitable design response in the amended Landscape Plans prepared by Conzept Landscape Architects, Revision C, dated August 2023. The amended plans maintain and enhance the existing streetscape which is supplemented with appropriate vegetation in keeping with the local landscape character. The parties submit, and I accept that this clause has been satisfactorily addressed.

Clause 6.23 Essential services

34. Essential services for water supply, electricity, sewerage, stormwater drainage and vehicular access are available.

Public notification

35. The development application was notified by the Council from 18 November 2022 to 2 December 2022. No submissions were received.

Owner’s consent

36. The development application was made with the written consent of the owner of the subject site.

Conclusion and orders

37. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties’ decision.

38. The Court notes:

1. That Blue Mountains City Council, as the relevant consent authority, has approved, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the applicants’ application to amend modification application XM/2567/2022/A in accordance with the plans and documents listed below:

Document	Prepared by:	Drawing No	Issue	Date
Cover and Location	Coconut Banana	CB2249-000	R	18/08/2023
Existing Survey	Coconut Banana	CB2249-050	Q	08/08/2023
Erosion & Sediment Control Plan	Coconut Banana	CB2249-070	P	13/07/2023
Existing Site & Demolition Plan	Coconut Banana	CB2249-080	Q	08/08/2023
Existing & Demolition Ground Floor Plan	Coconut Banana	CB2249-100	K	05/10/2022
Proposed Site Plan	Coconut Banana	CB2249-200	Q	08/08/2023
Proposed Site Sections	Coconut Banana	CB2249-210	R	18/08/2023
Site Sections	Coconut Banana	CB2249-211	Q	08/08/2023
Proposed Ground Floor Plan	Coconut Banana	CB2249-300	P	13/07/2023
Proposed Roof Plan	Coconut Banana	CB2249-310	K	05/10/2022
Proposed Elevations	Coconut Banana	CB2249-400	P	13/07/2023
Title Page and General Notes Stormwater Management Plans	Broadcrest Engineering	2133-SW	C-07	07/11/2023
Drainage Plan	Broadcrest Engineering	2133-SW	C-07	07/11/2023
Drainage Plan	Broadcrest Engineering	2133-SW	C-07	07/11/2023
S3qm Certificate	Broadcrest Engineering	2133-B-01	-	-
Landscape Plan	Conzept Landscape Architects	LPS34-24/20	C	August 2023
Planting Matrix	Conzept Landscape Architects	LPS34-24/20	B	8 August 2023
Details and Specification	Conzept Landscape Architects	LPS34-24/20	B	8 August 2023
Swept Path Analysis – Amended Car Park Design [Sheet 1 of 5]	Traffic & Safety Solutions	20230713-1	C	18/08/2023
Tree Management Plan & Specifications	Jacksons Nature Works	13 November 2023
Arborist Report	Jacksons Nature Works	-	-	13 October 2023 & 13 November 2023

2. The amended plans and documents referred to in [38(1)] above were filed with the Court on 29 November 2023.

39. The Court orders:

1. The appeal is upheld.

2. Development consent no. 2567 is modified in the terms in Annexure A.

3. Development consent no. 2567 as modified by the Court is Annexure B.

……………………..

S Dixon

Senior Commissioner of the Court

Annexure A (277022, pdf)

Annexure B (327606, pdf)

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Amendments

09 February 2024 - Correction to typographical error at [4].

Decision last updated: 09 February 2024