Shelsher v Blue Mountains City Council

[2006] NSWLEC 737

Land and Environment Court

of New South Wales

CITATION:	Shelsher v Blue Mountains City Council [2006] NSWLEC 737
PARTIES:	APPLICANT Craig Shelsher and Associates RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	10094 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of four existing holiday cabins and the construction of 4 x 2 storey townhouses - design - streetscape
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Blue Mountains Local Environmental Plan 2005
DATES OF HEARING:	4/09/06
DATE OF JUDGMENT:	11/23/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr M McMahon, solicitor SOLICITORS M E McMahon and Associates RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

23 November 2006

10094 of 2006 Craig Shelsher and Associates v Blue Mountains City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Blue Mountains City Council (the council) of Development Application X04/0634 for the demolition of four existing holiday cabins and the construction of 4 x 2 storey townhouses at 27 Lakeview Ave, Blackheath (the site).

2 The site is Lot 7 in DP 408888. It is rectangular in shape with the width of 15.3 metres and a depth of 61.2 metres giving a total site area of 935 square metres. There is no substantive vegetation located on the site.

3 The locality consists generally of single residential dwellings although holiday accommodation is located directly to the north and on the opposite side of Lakeview Ave.

4 The site is located within the Living General zone under Blue Mountains Local Environmental Plan 2005 (LEP 2005). The proposed use is prohibited within this zone however the application is submitted under the existing use rights provisions of the Environmental Planning and Assessment Act 1979. The council accepted that the site enjoys existing use rights. It is widely held that provisions of planning instruments that derogate from Regulation 41(1) do not apply to the assessment of applications on sites with existing use rights.

5 Section 108(3) of the Environmental Planning and Assessment Act 1979 (the Act) states:

An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

6 Regulation 41(1) of the Environmental Planning and Assessment Regulations 2000 states that

An existing use may, subject to this Division:
a) be enlarged, expanded or intensified; or
b) be altered or extended ;or
c) be rebuilt;or
d) be changed to another use, but only if that other use is a use that may be carried out with or without consent under the Act.

7 The proposed development is in conflict with Regulation 41(1)(d) that came into effect on 29 March 2006 however as the application was lodged with the council on 12 May 2004 it is saved through Regulation 286D(2)(a).

8 The council filed a Statement of Issues that contained six individual issues however with the submission of amended plans the remaining active issues related principally to the impact on the character of the area and the streetscape.

9 The parties agreed to the appointment of Ms Kerry Gordon as the Court appointed town planning expert. Ms Gordon provided an oral report to the parties that resulted in the preparation of amended plans. The council's issues and Ms Gordon’s written report were based on these amended plans. Ms Gordon’s written report identified a number of shortcomings with the amended design that required further changes.

10 The hearing commenced on-site at 10 a.m. on 4 September 2006 where the parties agreed to convert to the Court hearing to an On Site Hearing because the matters raised by Ms Gordon dealt largely with design issues. The areas of the design identified by Ms Gordon as requiring further amendment were explained to the Court and involved:

• the redesign of Unit 1 to address Lakeview Avenue,
• a change to the roof pitch,
• a general lowering of each townhouse,
• a reduction in the size of the first floor decks,
• a reduction in the amount of a driveway area with a subsequent increase in landscaping, and
• the provision of a landscape plan.

11 The Court agreed with Ms Gordon that further amendments to the plans were required and that this was more appropriately undertaken through the preparation of further amended plans rather than the imposition of complicated conditions of approval. The proceedings were subsequently adjourned for the preparation of further amended plans and the Court made the following directions:

1. Ms Gordon, a representative from the council and the applicant’s architect are to meet and discuss the amendments by 19 September 2006,
2. The applicant's architect is to provide amended architectural plans and a landscape plan by 3 October 2006,
3. Ms Gordon and the council are to provide comments on the amended plans and the landscape plan to the Court by 23 October 2006,
4. It the amended architectural plans and landscape plan are considered acceptable by Ms Gordon, the council and the Court, orders are to be made in Chambers,
5. Leave is granted for either party to restore the matter on 48 hours notice,
6. At the request of Mr Jackson, the council’s advocate, costs associated with the consideration of the amended plans and landscape plan are reserved.

12 A further call over was held on 31 October 2006 to address a number of minor outstanding issues between parties. Directions were given for the applicant to file amended plans to address those outstanding issues by 6 November 2006 and the council to respond by 8 November 2006.

13 The amended plans were filed on 6 November 2006 and following a further telephone mention on 23 November 2006 the council filed the conditions of consent later that day. The amended plans were acceptable to the council and the conditions of consent were acceptable to the applicant. The most recent amended plans and the responsive conditions have been marked exhibits A and 1 respectively.

14 The Orders of the Court are:

1. The appeal is upheld.
2. Development Application X04/0634 for the demolition of four existing holiday cabins and the construction of 4 x 2 storey townhouses at 27 Lakeview Ave, Blackheath is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits A and 1.
___________
G T Brown
Commissioner of the Court