McKenzie v Blue Mountains City Council

[2019] NSWLEC 1459

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	McKenzie v Blue Mountains City Council [2019] NSWLEC 1459
Hearing dates:	Conciliation conference on 23-24 September 2019
Date of orders:	27 September 2019
Decision date:	27 September 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See orders at [13] below
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Blue Mountains Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Texts Cited:	Blue Mountains Development Control Plan 2015
Category:	Principal judgment
Parties:	David McKenzie (First Applicant) Lynn McKenzie (Second Applicant) Blue Mountains City Council (Respondent)
Representation:	Counsel: J Reid (Applicants) A Seton (Solicitor) (Respondent)   Solicitors: Crennan Legal Pty Ltd (Applicants) Marsdens Law Group (Respondent)
File Number(s):	2019/14178
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a (partial) refusal of Development Application (DA) X/851/2018 by Blue Mountains City Council (hereafter the Council) for an entertainment wall, enclosed bathroom and three car garage with attached carport on Lot 2 DP 856635, also known as 18-20 Old Bathurst Road, Woodford (hereafter the site).

2. The proposed development relating to the entertainment wall and enclosed bathroom was approved in the partial consent of DA X/851/2018 by Council on 27 November 2018. The structure associated with the garage and carport was however refused as part of this DA.

3. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979) for the refused part of the DA.

4. The Court agreed to a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 23 September 2019. I presided over the conciliation conference. There were no objectors heard at this conciliation.

5. At the conciliation conference, the applicant sought to amend the plans to reduce the height and size of the garage, and amend the landscaping. Based on these amended plans and conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA X/851/2018 with conditions.

6. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to DA X/851/2018 under appeal with conditions.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: Blue Mountains Local Environmental Plan 2015 (BMLEP); and Blue Mountains Development Control Plan 2015 (BMDCP). The parties agree that the amended plans and conditions of consent relate to the merits of the proposal.

8. The parties agree that the relevant provisions of the BMLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The structures on the site are located within the E3 Environmental Management zone and proposed landscaping is within the E2 Environmental Conservation zone. The proposed development is permissible in the respective zones and as proposed is not inconsistent with the zones objectives or relevant development standards. The site is used for residential purposes.

9. The parties agree that the requirements of the BMDCP are complied with, considering the amended plans and conditions of consent.

10. Based on the amended plans and supporting documents to the DA, the contentions are resolved to the satisfaction of the parties. The issues raised by an objector during the notification period are resolved to the parties’ satisfaction.

11. I am satisfied that there are no jurisdictional impediments to this agreement and that DA X/851/2018 should be granted for the garage with associated functions and carport based on the amended plans and conditions of consent, as it satisfies the requirements of s 4.15(1) of the EPA Act 1979.

12. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

13. The Court orders:

1. The Applicant is granted leave to rely on the following amended plans and documentation:

DWG NO.	DESCRIPTION	PREPARED BY	REV	DATE
0401.30-020	Site Plan (As amended in red)	Plan it Out	A	10/08/2018
LP01	Shed Plans and Elevations	Moir Landscape Architecture	C	23/09/2019
LP00	Cover Sheet	Moir Landscape Architecture	B	18/09/2019
LP01	Revegetation Plan	Moir Landscape Architecture	B	18/09/2019
LP02	Details & Schedule	Moir Landscape Architecture	B	18/09/2019
LP03	Specification	Moir Landscape Architecture	B	18/09/2019

2. The appeal is upheld.

3. That part of Development Application No. X/851/2018 which relates to the construction of a garage/shed containing car parking spaces, a home gym, art studio, workbench, storage and an attached carport on the land at 18-20 Old Bathurst Road, Woodford is approved subject to the conditions of consent at Annexure “A”.

…………………………

S Bish

Commissioner of the Court

Annexure A (218290, pdf)

Revegetation Plans (4.52 MB)

Site Landscape Plan (911 KB)

Shed Plan and Elevation (2.37 MB)

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Amendments

12 April 2021 - Pursuant to Uniform Civil Procedure Rule Part 36 Rule 17 Annexure A to the Order made on 27 September 2019 be amended.

Decision last updated: 12 April 2021