Peel Mews Pty Ltd v Blue Mountains City Council

[2020] NSWLEC 1306

Land and Environment Court

New South Wales

Medium Neutral Citation:

Peel Mews Pty Ltd v Blue Mountains City Council [2020] NSWLEC 1306

Hearing dates:

Conciliation conference on 16 June 2020

Date of orders:

21 July 2020

Decision date:

21 July 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at Annexure A.

(2) The appeal is upheld.

(3) Development application X/356/2019 for the demolition of existing structures, construction of new service station with associated site works, drainage, upgrading of fuel pumps and landscaping (including tree removal) at 257-263 Great Western Highway, Blackheath is approved subject to the conditions at Annexure A.

(4) Conditions of concurrence from Transport for New South Wales/Roads & Maritime Services dated 29 July 2019 given under s 138(2) of the Roads Act 1993 and addressed to the respondent is amended to revoke conditions 1 and 12 (in accordance with the Court's powers under s 39(6)(b) of the Land and Environment Court Act 1979).

Catchwords:

DEVELOPMENT APPLICATION – service station – heritage – character – 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

Roads Act 1993

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 33 – Hazardous and Offensive Development

State Environmental Planning Policy No 55 – Remediation of Land

Texts Cited:

Blue Mountains Development Control Plan 2015

Category:

Principal judgment

Parties:

Peel Mews Pty Ltd (Applicant)
Blue Mountains City Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor) (Applicant)
T Cork (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth (Applicant)
McPhee Kelshaw (Respondent)

File Number(s):

2020/105402

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) X/356/2019 by Blue Mountains City Council (hereafter the Council) for the demolition of existing structures, tree removal and construction of a service station with associated structures and signage on Part Lot 1 Section 1 DP 2904, Part Lot 2 Section 1 DP 2904, Part Lot 3 Section 1 DP 2904, and Part Lot 4 Section 1 DP 2904, also known as 257-263 Great Western Highway, Blackheath (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 June 2020. I presided over the conciliation conference. There were no objectors who made submission at this conciliation.

4. Prior to this conciliation conference, and following expert discussion, the applicant sought to amend the DA’s supporting plans and provide relevant documentation to be relied upon in the granting of consent to the DA under appeal.

5. Based on these amended plans, together with the DA’s supporting documents and agreed conditions of consent, the parties reached an agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA X/356/2019 with conditions.

6. Pursuant to s 34(3) of the LEC Act, 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 after being satisfied, pursuant to s 4.15(1), to grant consent to DA X/356/2019 with conditions, as described in Annexure A.

7. The parties identified the jurisdictional prerequisites of particular relevance to the Court in these proceedings, as consistency with the: Roads Act 1993; State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure); State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55); State Environmental Planning Policy No 33 – Hazardous and Offensive Development (SEPP 33); and the Blue Mountains Local Environmental Plan 2015 (BMLEP). In addition, the Blue Mountains Development Control Plan 2015 (BMDCP) is of consideration to grant consent to the DA.

8. In compliance with the requirements of the Roads Act 1993, specifically s 138, the DA is supported by conditions of consent, which the parties agree address the relevant concurrence requirements of the NSW Roads and Maritime Services (RMS), which are amended to accurately reflect land owned by the Council, pursuant to s 39(6)(b) of the LEC Act. The frontage of the site to a classified road is addressed by the concurrence of the RMS, which satisfies the relevant requirements of SEPP Infrastructure.

9. The requirements of SEPP 55 are satisfied based on the relevant contamination reports on the site, finding the proposed development suitable for the site.

10. The requirements of SEPP 33 are also satisfied for the proposed development on the site, supported by the DA’s Preliminary Hazard Analysis.

11. The site is located within the B2 Local Centre Zone, as described in the BMLEP. The proposed development is permissible in the zone. 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 objectives of the zone are satisfied.

12. The proposed development satisfies the numeric requirements and relevant objectives of the BMLEP. Specifically, the DA as amended and supported by a Statement of Heritage Impact, addresses to the satisfaction of the parties the relevant provisions of cl 5.10, which relate to heritage. The contentions that relate to earthworks and stormwater, cll 6.14 and 6.9, respectively are addressed by the amended plans to the satisfaction of the parties. All the contentions that relate to the provisions of the BMLEP are resolved.

13. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls specified in the BMDCP are achieved to the satisfaction of the parties. The parties agree that the amended design shown in the plans addresses any potential amenity impacts in contention. The parties agree that the requirements of the BMDCP are complied with, based on the amended plans, conditions of consent and supporting documents.

14. The proposed development was publicly notified in accordance with the BMDCP. During the initial notification period, one submission was received by Council, related to stormwater management. The submission was considered by the parties, prior to reaching the agreement. The amended plans that resolve this issue have been considered in the context of the site.

15. Based on the amended plans and supporting documents to the DA the contentions as expressed in the Statement of Facts and Contentions are explained to the Court are resolved to the satisfaction of the parties.

16. I am therefore satisfied, based on the advice of the parties and information provided to support the DA that there are no jurisdictional impediments to this agreement, and that DA X/356/2019 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

17. 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.

18. The Court orders that:

1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at Annexure A.

2. The appeal is upheld.

3. Development application X/356/2019 for the demolition of existing structures, construction of new service station with associated site works, drainage, upgrading of fuel pumps and landscaping (including tree removal) at 257-263 Great Western Highway, Blackheath is approved subject to the conditions at Annexure A.

4. Conditions of concurrence from Transport for New South Wales/Roads & Maritime Services dated 29 July 2019 given under s 138(2) of the Roads Act 1993 and addressed to the respondent is amended to revoke conditions 1 and 12 (in accordance with the Court's powers under s 39(6)(b) of the Land and Environment Court Act 1979).

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (720472, pdf)

Plans (9546485, pdf)

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Decision last updated: 21 July 2020