Pridham v Blue Mountains City Council

[2023] NSWLEC 1197

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pridham v Blue Mountains City Council [2023] NSWLEC 1197

Hearing dates:

Conciliation conference 17 April 2023

Date of orders:

26 April 2023

Decision date:

26 April 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application number X/116/2022, seeking consent for alterations and additions to an existing dwelling at Lot 65 in Deposited Plan 8274, also known as 10 Murray Avenue, Wentworth Falls, subject to the conditions of consent at Annexure A.

Catchwords:

APPEAL – development application – alterations and additions to a dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

Blue Mountains Local Environmental Plan 2015, cll 5.21, 6.9

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, Sch 1, cl 55

Environmental Planning and Assessment Regulation 2021

Land and Environment Court Act 1979, ss 34, 34AA, 39

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 8, 9, ss 6.65, 8.8, 8.9, 9.3

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

Category:

Principal judgment

Parties:

Richard Pridham (First Applicant)
Bridgette Pridham (Second Applicant)
Blue Mountains City Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

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

File Number(s):

2022/342594

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to a dwelling house at 10 Murray Avenue, Wentworth Falls. The development application was refused by the respondent on 16 May 2022. The applicant lodged these appeal proceedings pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 17 April 2023. I presided over the conciliation conference.

3. At the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement which was provided on the same date, and follows the agreement of the Council to an amendment to the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). There is no requirement for the amended development application to be lodged on the NSW Planning Portal, as the applicable savings provision in the Environmental Planning and Assessment Regulation 2021 provides that the EPA Regulation 2000 continues to apply to development applications submitted before 1 March 2022, except that a requirement to use the NSW Planning Portal under the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court. The amendments made include removal of the east facing deck, enlargement of the north facing patio, the ‘popping out’ of the west facing ensuites to provide articulation that breaks the wall length, and a reconfiguration of the roof to break the ridge line.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Note that sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone pursuant to the Blue Mountains Local Environmental Plan 2015 (BLEP). I am satisfied that the proposed development, the subject of the amended development application, complies with the development standards for height and floor space ratio that apply pursuant to the BLEP.

• Clause 5.21 of the BLEP concerns flood planning, and applies to the site. Based on the joint expert report of the engineers filed on 6 April 2023 and the civil plans dated 2 March 2023, I have considered the matters in cl 5.21(3) and I am satisfied of the matters in cl 5.21(2).

• Based on the joint expert report of the engineers filed on 6 April 2023 and the civil plans dated 2 March 2023, I am also satisfied of the matters set out in cl 6.9(2) of the BLEP concerning stormwater management.

• Pursuant to s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), the repealed Chapters 8 and 9 of the SEPP B&C continue to apply to the proposed development. Chapter 8 concerns the Sydney Drinking Water Catchment, and Chapter 9 concerns the Hawkesbury-Nepean River system. With respect to Ch 8:

1. Based on the s3qm Certificate, I am satisfied that the proposed development will have a neutral or beneficial effect on water quality, in satisfaction of s 8.8 of the SEPP B&C.

2. Pursuant to s 8.9 of the SEPP B&C, concurrence of Water NSW is required, which has been delegated to the consent authority with respect to development for the purpose of a dwelling house. The Court can exercise the function of the consent authority in granting concurrence, pursuant to s 39(2) of the LEC Act, and, even if that function could not be exercised by the Court, the Court nevertheless has the power to determine the appeal pursuant to s 39(6)(a) of the LEC Act.

• With respect to Ch 9 of the SEPP B&C, based on the Jurisdictional Note, the joint expert report of the engineers filed on 6 April 2023 and the civil plans dated 2 March 2023, I have considered the matters required to be considered by s 9.3.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation 2000.

• The development application was notified to all neighbouring properties for a period of 14 days from 11 February 2022 to 25 February 2022, and 3 submissions were received. I have considered the issues raised in those submissions. The amended development application was then notified to those who made submissions on the development application, and I have considered the issues raised in the further submissions received in response.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes that:

1. The Respondent as the relevant consent authority has agreed under clause 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) to the Applicant's amending Development Application DA-345/2021 in accordance with the plans and documents listed below:

Document	Prepared by:	Drawing No	Issue	Date
Proposed & existing floor plans	Frank Kosztelnik & Associates	Job No. 3081 Sheet 1 of 4	Y	24.03.2023
Site plan & development area distribution	Frank Kosztelnik & Associates	Job No. 3081 Sheet 2 of 4	Y	24.03.2023
Elevations, Sections & BASIX commitments	Frank Kosztelnik & Associates	Job No. 3081 Sheet 3 of 4	Y	24.03.2023
External Colour Schedule	Frank Kosztelnik & Associates	-	Y	21.01.2022
BASIX Certificate No. A446520_02	Frank Kosztelnik & Associates	-	-	24.03.2023
Landscape Master plan	Paul Scrivener Landscape	Job Ref: 23/2488 JR, Sheet 1	E	06.04.2023
Landscape Detail plan South	Paul Scrivener Landscape	Job Ref: 23/2488 JR, Sheet 2	E	06.04.2023
Landscape Detail plan North	Paul Scrivener Landscape	Job Ref: 23/2488 JR, Sheet 3	E	06.04.2023
Landscape Soil areas plan	Paul Scrivener Landscape	Job Ref: 23/2488 JR, Sheet 4	E	06.04.2023
Landscape Details	Paul Scrivener Landscape	Job Ref: 23/2488 JR, Sheet 5	E	06.04.2023
Landscape Elevations	Paul Scrivener Landscape	Job Ref: 23/2488 JR, Sheet 6	E	06.04.2023
Landscape Elevations	Paul Scrivener Landscape	Job Ref: 23/2488 JR, Sheet 7	E	06.04.2023
Landscape Existing site context plan	Paul Scrivener Landscape	Job Ref: 23/2488 JR, Sheet 8	E	06.04.2023
Landscape Planting plan	Paul Scrivener Landscape	Job Ref: 23/2488 JR, Sheet 9	E	06.04.2023
Civil works plan	Calare Civil Consulting Engineers	Job No: 2022.0364, DWG No. C01	C	2.03.2023
Channel Cross sections 1	Calare Civil Consulting Engineers	Job No: 2022.0364, DWG No. C02	C	2.03.2023
Channel Cross sections 2	Calare Civil Consulting Engineers	Job No: 2022.0364, DWG No. C03	C	2.03.2023
Catchment plan	Calare Civil Consulting Engineers	Job No: 2022.0364, DWG No. C04	C	2.03.2023
Retaining walls	Calare Civil Consulting Engineers	Job No: 2022.0364, DWG No. C05	C	2.03.2023
s3qm report	Calare Civil Consulting Engineers	2022.0364	-	not dated

2. The amended plans and documents referred to in paragraph 3(a) above have been either filed or otherwise provided to the Court.

9. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application number X/116/2022, seeking consent for alterations and additions to an existing dwelling at Lot 65 in Deposited Plan 8274, also known as 10 Murray Avenue, Wentworth Falls, subject to the conditions of consent at Annexure A.

J Gray

Commissioner of the Court

22.342594 Annexure A

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Decision last updated: 26 April 2023