Todarello v Blue Mountains City Council

[2023] NSWLEC 1524

Land and Environment Court

New South Wales

Medium Neutral Citation:

Todarello v Blue Mountains City Council [2023] NSWLEC 1524

Hearing dates:

Conciliation conference held on 31 August 2023

Date of orders:

13 September 2023

Decision date:

13 September 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application X/431/2022, as amended, which seeks alterations and additions to an existing fruit shop and associated engineering works on Lot 9 Deposited Plan 656879, also known as 731-733 Great Western Highway, Faulconbridge, is determined by the grant of consent, subject to the conditions of consent contained at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – fruit shop with existing use rights – wastewater and stormwater management considerations – conciliation conference – agreement between the parties – orders

Legislation Cited:

Blue Mountains Local Environmental Plan 2015, cll 2.3, 6.2, 6.4, 6.9, 6.14, 6.21, 6.23

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 4.65, 4.66, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 23, 37

Land and Environment Court Act 1979, s 34

Roads Act 1993, s 138

State Environment Planning Policy (Biodiversity and Conservation) 2021, ss 9.4, 9.5

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Texts Cited:

Blue Mountains Development Control Plan 2015

Category:

Principal judgment

Parties:

Antonio Todarello (Applicant)
Blue Mountains City Council (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
A Seton (Solicitor)(Respondent)

Solicitors:
Holding Redlic (Applicant)
Marsden (Respondent)

File Number(s):

2022/321227

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application X/431/2022 (the DA) by the Blue Mountains City Council (hereafter the Council) which, as amended, seeks alterations and additions to an existing fruit shop and associated engineering works on Lot 9 Deposited Plan 656879, also known as 731-733 Great Western Highway, Faulconbridge (the site).

Background

2. The DA was lodged with Council on 18 March 2022. The original DA was notified to residents, with no submissions received. The DA was referred to Transport for NSW (TfNSW), pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act) and s 138 of the Roads Act 1993.

3. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and held in person.

5. During conciliation, the Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

6. Based on the amendments to the DA and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The Court is advised that the contentions of Council have been considered and are resolved, and as described in their jurisdictional assessment, all relevant jurisdictional matters are addressed. The agreed position of the parties is for the Court to grant consent to the amended Development Application X/431/2022, with conditions as described in Annexure A.

7. 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 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to Development Application X/431/2022, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically assessed and are addressed:

1. Roads Act 1993:

1. The site has frontage to a classified road, being the Princes Highway. Access to the site remains unchanged and no works are proposed along the site frontage. TfNSW have issued concurrence to the proposed development. The conditions of consent reflect the requirements of the Roads Act 1993.

2. Blue Mountains Local Environmental Plan 2015 (BMLEP):

1. The site is located on land zoned as C3 Environmental Management, pursuant to cl 2.3 of the BMLEP. The proposed alterations and additions to the fruit shop, with associated civil works, although not permissible in this zone, are deemed acceptable consistent with the existing use rights that apply to the fruit shop, pursuant to Part 4, Division 4.11, ss 4.65 and 4.66 of the EPA Act.

2. The amended DA is supported by relevant documents, together with agreed conditions of consent, which sufficiently address all the relevant objectives, aims, standards and requirements of the BMLEP. 

3. Specifically considered, the Council has undertaken a merit assessment of the proposed wastewater and stormwater works, and assess that these works are appropriate relative to the slope constraints, location within environmentally sensitive land and proximity to water sources. The Court is satisfied that Council have undertaken the appropriate merit assessment and the applicant has provided the relevant documents to demonstrate any adverse environmental impact will be minimised. The relevant jurisdictional requirements, pursuant to cll 6.2, 6.4, 6.9, 6.14, 6.21 and 6.23 have been addressed.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The Council has assessed that the site is suitable for the existing and proposed use, based on its historic use and assessment that the site is not affected by contamination that would trigger s 4.6 of the SEPP resilience. Together with the agreed conditions of consent, the requirements of the SEPP Resilience are addressed.

4. State Environment Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity)

1. The site is located within the catchment of the Hawkesbury-Nepean River, thereby engaging Ch 9 of the SEPP Biodiversity in consideration of the DA. The DA does not propose to remove any trees and has been assessed by Council as not resulting in any adverse environmental impact, including to water quality. The requirements of ss 9.4 (since repealed) and 9.5 are addressed.

5. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):

1. The site fronts to the Great Western Highway, a classified road, which engages Ch 2 of the SEPP Infrastructure. Council’s engineers have assessed the DA and consider that there are no proposed changes to access and traffic loads. Pursuant to s 2.119, TfNSW have advised they had no objections to the (amended) DA.

6. Blue Mountains Development Control Plan 2015 (BMDCP):

1. The original DA was publicly notified in accordance with the BMDCP, with no submissions received. The relevant requirements of the BMDCP are generally complied with.

9. Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from landowners relevant to the DA.

Grant of consent

10. In consideration of the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed works. The Court is advised that the issues raised in contention have been addressed by the amendments made and supporting documents to the application.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application X/431/2022 should be granted consent, as it addresses the relevant requirements of the EPA Act.

13. 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.

14. The Court notes that:

1. Blue Mountains City Council, as the relevant consent authority, has agreed, under s 37(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application X/431/2022, as follows:

Document	Prepared by	Date
1.	Civil Stormwater Management Plans prepared by CivilCol Consulting Pty Ltd	CivilCol Consulting Pty Ltd	Various
2.	Supplementary Report on Stormwater Management Concept prepared by CivilCol Consulting Pty Ltd (including modelling results)	CivilCol Consulting Pty Ltd	24 July 2023
3.	Revised Stormwater Engineering Design prepared by Greywacke Geotechnics	Greywacke Geotechnics	10 August 2023

2. Amendments to the DA were filed with the Court on 25 August 2023.

15. The Court orders that:

1. The appeal is upheld.

2. Development Application X/431/2022, as amended, which seeks alterations and additions to an existing fruit shop and associated engineering works on Lot 9 Deposited Plan 656879, also known as 731-733 Great Western Highway, Faulconbridge, is determined by the grant of consent, subject to the conditions of consent contained at Annexure A.

Sarah Bish

Commissioner of the Court

**********

Annexure A

Decision last updated: 13 September 2023