LYMT Pty Ltd v Blue Mountains City Council

[2024] NSWLEC 1479

Land and Environment Court

New South Wales

Medium Neutral Citation:

LYMT Pty Ltd v Blue Mountains City Council [2024] NSWLEC 1479

Hearing dates:

Conciliation conference on 30 July 2024

Date of orders:

08 August 2024

Decision date:

08 August 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The Applicant’s written request prepared by HDC Planning dated 25 July 2024 pursuant to clause 4.6 of the Blue Mountains Local Environmental Plan 2015 (BMLEP 2015) to vary the height of building development standard in clause 4.3 of the BMLEP 2015 is upheld.

(2) The appeal is upheld.

(3) Development application number X/376/2023, as amended, for the restoration of an existing commercial building and the construction of a new multi-level shop top housing development to the rear, including demolition of an outbuilding/shed at Lot 1 in Deposited Plan 972908, known as 54 Waratah Street, Katoomba, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – shop top housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Blue Mountains Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 5.10, 6.9, 6.14, 6.19, 6.20, 6.23, 7.1, 7.6

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.5, ss 6.61, 6.63, 6.64

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

State Environmental Planning Policy (Housing) 2021, Ch 4, Schs 7A, 9, ss 8, 147

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

Texts Cited:

Apartment Design Guide, NSW Planning and Environment 2015

Blue Mountains Development Control Plan 2015

Category:

Principal judgment

Parties:

LYMT Pty Ltd (Applicant)
Blue Mountains City Council (Respondent)

Representation:

Counsel:
D Loether (Applicant)
A Seton (Respondent)

Solicitors:
Bartier Perry (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/203998

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from the actual refusal, by Blue Mountains City Council, of DA X/376/2023 which seeks consent for the demolition of existing structures, retention and restoration of an existing commercial building, and construction of a new multi-level shop top housing development at 54 Waratah Street, Katoomba.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 July 2024. I presided over the conciliation conference.

4. 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.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Council agreed to the applicant amending the development application to respond to the issues raised in the Statement of Facts and Contentions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 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 and explained how they have been satisfied, and from this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified in accordance with the Blue Mountains Development Control Plan 2015 (BDCP) from 5 May to 2 June 2023. Two submissions were received, one in support and one in objection. The development application was subsequently amended (the first amendment) and re-notified from 8 March to 22 March 2024, again in accordance with the BDCP. No submissions were received in this time, and one submission was received after the closing date of notification. Based on the further amended application that is now before the Court, the parties submit, and I accept, that the development application now adequately responds to the concerns raised in these submissions.

Blue Mountains Local Environmental Plan 2015

9. The subject site is zoned E2 Commercial Centre under the Blue Mountains Local Environmental Plan 2015 (BMLEP), within which development for the purposes of shop top housing is permissible with consent. The proposed development is consistent with the objectives of this zone.

10. Pursuant to BMLEP cl 4.3, a maximum building height of 9m applies to the subject site. The proposed development exceeds this height standard due to an upper floor, rooftop plant, a lift overrun, and related parapets, achieving an overall height of 13.5m.

11. As a result of this exceedance, cl 4.6(3) of the BMLEP allows the applicant to request a contravention of the Height of Buildings development standard through the submission of a written request. This request must demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicants have submitted a request prepared HDC Planning, dated 25 July 2024 (the cl 4.6 request). Pursuant to BMLEP cl 4.6, I am satisfied that:

1. The cl 4.6 request demonstrates that compliance with the Height of Buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the E2 Commercial Centre Zone and the Height of Buildings development standard, notwithstanding the non-compliance. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties due to its siting.

2. The cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

1. The breach is localised and centrally positioned, resulting in an acceptable relationship with the local context in terms of bulk, scale and aesthetics.

2. The breach is partly the result of site topography, and the retention of the contributory building.

3. The development delivers a transition in built form and land use intensity, consistent with the objective at cl 4.3 (1)(c)

3. The contravention is therefore justified by a lack of adverse impact on the neighbouring residents, by the appropriateness of the building design within its physical and planning context, and the response to the constraints of the HCA.

4. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the cl 4.3 development standard.

12. BMLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 1.5:1. The proposed development complies with this development standard with an FSR of 1.04:1.

13. The site is located within the Central Katoomba Urban Heritage Conservation Area (K159) (HCA) and is in the vicinity of various locally listed heritage items, including the former Presbyterian Church directly adjacent to the site. Pursuant to BMLEP cl 5.10, based on the parties’ submission and the information contained in:

1. the Statement of Heritage Impact by Heritage 21 dated February 2023,

2. the Joint Report of Heritage Experts filed 4 July 2024,

3. the email ‘Heritage impact assessment of changes to LYMT drawings – 54 Waratah Street Katoomba from Paul Rappaport dated 16 February,

I accept that the effect of the proposed development on the heritage significance of the HCA and nearby heritage items has been considered and is acceptable.

14. Pursuant to BMLEP cl 6.9, based on the parties’ submission and the amended stormwater plans prepared by ING Consulting Engineers Pty Ltd dated 12 February 2024, I accept that the development:

1. Incorporates best practice water sensitive urban design principles;

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;

3. Avoids any adverse impacts caused by stormwater runoff on adjoining properties, native bushland and the receiving natural environment in the ways listed in cl 6.9(2)(d); and

4. Integrates stormwater management measures into the landscape resulting in 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.

15. BMLEP cl 6.14 lists a range of matters pertaining to earthworks that must be considered by the consent authority. Based on the parties’ submission and the architectural plans in the further amended application, I accept that the proposed development does not incorporate extensive earthworks, and that these matters have been considered and adequately addressed in the application.

16. Pursuant to cl 6.19 of the BMLEP, development consent must not be granted unless the consent authority considers that the application exhibits design excellence. To that end, the amended Statement of Environmental Effects (Further SEE) dated 19 February 2024 by HDC Planning, the Design Excellence Assessment prepared by HDC Planning dated 25 July 2024, and the joint report of planning experts demonstrates that the proposed development demonstrates design excellence when assessed against the considerations in cl 6.19(4).

17. The site is located with the Katoomba Precinct E2-KA01 under BMLEP cl 7.6. Pursuant to cl 7.1, the consent authority must be satisfied that the development is consistent with the objectives specified in cl 7.6. From the parties’ submission, the information contained in the Further SEE, and the joint report of planning experts, I accept that the proposed development meets these objectives.

18. Pursuant to BMLEP cl 6.20, the architectural plans demonstrate, through the retention of the ground level commercial street frontage, that the development will have an active street frontage.

19. The parties submit, and I accept, that the site will continue to be serviced by all essential services listed in BMLEP cl 6.23, as per the current arrangement.

State Environmental Planning Policy (Housing) 2021

20. Pursuant to the provisions of Sch 7A(8)(2A), Ch 4 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the development application. Under s 147 of the SEPP Housing, the consent authority must consider:

1. The quality of the design of the development against the principles set out in Sch 9;

2. The Apartment Design Guide (ADG); and

3. Any advice received from a design review panel within 14 days after the consent authority referred the development application or modification application to the panel.

21. Based on the parties’ submission, and the information contained in the following documents, I accept that these matters have been considered, and adequately addressed, and that the design of the shop top housing is acceptable pursuant State Environmental Planning Policy (Biodiversity and Conservation) 2021 to Ch 4 of the SEPP Housing:

1. The SEE, page 22

2. The Further SEE, page 23

3. The SEPP 65 Assessment including the Design Verification Statement prepared for the purposes of s 29(2)(a) and (b) EPA Reg.

4. The Arboricultural Impact Assessment, prepared by McArdle Arboricultural Consultancy dated 5 July 2024.

State Environmental Planning Policy (Resilience and Hazards)

22. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Further SEE, the Waste Management Plan by Mr Andrew Daniele dated 27 February 2023, and the parties’ submission, I accept that the subject site has been historically used for commercial purposes with no evidence of any potentially contaminating activities. I subsequently accept that the site is suitable for the intended, continued, residential use, subject to the conditions of consent regarding the removal of any hazardous material discovered during demolition and construction.

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

23. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004 and the requirement of s 27 of the EPA Reg. Compliance with the commitments within this certificate is further required through a condition of consent.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

24. Part 6.5 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&C SEPP) provides matters that must be considered relating to the impact of the development on water quality for land within the Sydney Drinking Water Catchment. Water NSW provided concurrence on 25 May 2023 stating that they are “satisfied that the proposed development can achieve a neutral or beneficial effect on water quality (NorBE) provided appropriate conditions are included in any development consent and are subsequently implemented." (Tab 10 of the Council’s bundle of documents). From this, the parties’ submissions, and the relevant conditions of consent as agreed by the parties, I accept that the proposed development is consistent with ss 6.61 and 6.63 of the B&C SEPP, and concurrence has been provided as required under s 6.64.

Conclusion

25. For these reasons, 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.

26. As the parties’ decision is one 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.

27. The Court notes:

1. That Blue Mountains City Council, as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending development application number X/376/2023, in accordance with the following plans and documents:

Document	Prepared by:	Drawing No	Revision	Date
Architectural Plans
Data & Basix Certificate	LYMT	AP00	G	24 July, 2024
Cover Sheet	LYMT	AP0	H	24 July, 2024
Ground Floor Plan	LYMT	AP01	H	24 July, 2024
Level 1 & 2 Plan	LYMT	AP02	H	24 July, 2024
Level 3 & Roof Plan	LYMT	AP03	I	24 July, 2024
North & South Elevations	LYMT	AP04	J	25 July, 2024
East & West Elevations	LYMT	AP05	J	25 July, 2024
Sections A-A & B-B	LYMT	AP06	G	24 July, 2024
Sections C-C	LYMT	AP07	H	24 July, 2024
Adaptable Unit Details	LYMT	AP08	G	24 July, 2024
Schedule of Finishes	LYMT	AP09	J	25 July, 2024
Schedule of Finishes	LYMT	AP10	J	25 July, 2024
Heritage Conservation Plans	LYMT	AP11	F	24 July, 2024
Heritage Conservation Elevations	LYMT	AP12	F	24 July, 2024
Site / Roof Plan	LYMT	AP13	G	24 July, 2024
Easement Plan	LYMT	AP14	03	24 July, 2024
Shadow Diagrams	LYMT	SP01	F	24 July, 2024
Context/Site Analysis	LYMT	SP02	F	24 July, 2024
GFA Calculation	LYMT	SP03	F	24 July, 2024
ADG Solar Access & Cross Ventilation	LYMT	SP04	F	24 July, 2024
Demolition Plan	LYMT	SP05	E	24 July, 2024
Window Schedule	LYMT	SP06	D	15 February, 2024
Height Blanket Diagrams	LYMT	SP07	E	25 July, 2024
Streetscape Views from Across Street	LYMT	SP09	F	25 July, 2024
Streetscape Views from Across Street	LYMT	SP10	D	24 July, 2024
Streetscape Views from Lurline Street Sht	LYMT	SP11	B	24 July, 2024
Streetscape Views from Lurline Street	LYMT	SP12	B	24 July, 2024
Landscape Plans
Ground Floor Plan	Zenith Landscape Designs	L01 (Sheet 1 of 7)	B	24 July, 2024
First Floor Plan	Zenith Landscape Designs	L02 (Sheet 2 of 7)	B	24 July, 2024
Third Floor Plan	Zenith Landscape Designs	L03 (Sheet 3 of 7)	B	24 July, 2024
Existing Tree Plan	Zenith Landscape Designs	L04 (Sheet 4 of 7)	B	24 July, 2024
Notes, Schedule and Details	Zenith Landscape Designs	L05 (Sheet 5 of 7)	B	24 July, 2024
Green Trellis Details Notes	Zenith Landscape Designs	L05 (Sheet 6 of 7)	B	24 July, 2024
Planted Elevations	Zenith Landscape Designs	L05 (Sheet 7 of 7)	B	24 July, 2024
Other Documents
Traffic and Parking Assessment Report	CJP Consulting Engineers	Project No. 22050	Final	17 February, 2023
Preliminary Construction Management Plan	-	-	-	-
Swept Path Assessment	CJP Consulting Engineers	22050-D01-V3 (Sheet 10 of 10)	-	10 July, 2024
Indicative proposed ROW	-	Figure 2	-	-
Arboricultural Impact Assessment	McArdle Arboricultural Consultancy	-	Version 4	5 July, 2024
Basix Certificate	-	Certificate No. 1364487M_03	-	21 February, 2024
Waste Management Plan	-	-	-	27 February, 2023
Water NSW Concurrence	-	23044-a1	-	25 May, 2023
Design Excellence Assessment	HDC Planning	-	-	25 July 2024
Further Amended Clause 4.6 request for variation – Height of Buildings	HDC Planning	-	-	25 July 2024

28. The Court orders:

1. The Applicant’s written request prepared by HDC Planning dated 25 July 2024 pursuant to clause 4.6 of the Blue Mountains Local Environmental Plan 2015 (BMLEP 2015) to vary the height of building development standard in clause 4.3 of the BMLEP 2015 is upheld.

2. The appeal is upheld.

3. Development application number X/376/2023, as amended, for the restoration of an existing commercial building and the construction of a new multi-level shop top housing development to the rear, including demolition of an outbuilding/shed at Lot 1 in Deposited Plan 972908, known as 54 Waratah Street, Katoomba, is determined by the grant of development consent subject to the conditions at Annexure A.

E Washington

Commissioner of the Court

203998.23 Annexure A

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Decision last updated: 08 August 2024