Villar v Blue Mountains City Council

[2019] NSWLEC 1129

Land and Environment Court

New South Wales

Medium Neutral Citation:	Villar v Blue Mountains City Council [2019] NSWLEC 1129
Hearing dates:	Conciliation conference on 22 March 2019
Date of orders:	02 April 2019
Decision date:	02 April 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 Environment Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997)
Texts Cited:	Blue Mountains Development Control Plan 2015
Category:	Principal judgment
Parties:	Diego Villar (Applicant) Blue Mountains City Council (Respondent)
Representation:	Solicitors: D Briggs, DG Briggs & Associates (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s):	2018/315571
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal by Blue Mountains City Council (hereafter the Council) of Development Application (DA) X/1285/2017, which seeks to construct attached dual occupancy dwellings, and subsequent Torrens title subdivision of one lot into two lots, each containing a dwelling house, on Lot 4 DP 1228784, also known as 7 Nightingale Drive, Blaxland.

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

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 22 March 2019. I presided over the conciliation conference. There were no objections heard at this conciliation, although it is acknowledged that two submissions were received by the respondent during the notification period. The issues raised by these objectors, that relate to design and amenity impacts, were addressed by the parties in consideration of the proposed development.

4. At the conciliation conference, 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/1285/2017 with conditions.

5. 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/1285/2017 under appeal with conditions.

6. 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 Environment Plan 2015 (BMLEP 2015); Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SREP 1997); and Blue Mountains Development Control Plan 2015 (BMDCP 2015).

7. With regards to the BMLEP 2015, the parties have assessed that the proposed development does not contravene any development standards and specifically resolves the contentions as follows:

1. Clause 2.3 - the site is located within an R2 Low Density Residential zone. The proposed dual occupancy development with Torrens title subdivision is permissible in the zone and is not inconsistent with the zone objectives.

2. Clauses 4.3 and 4.4 – based on the further supporting information, the proposed development complies with height and floor space ratio (FSR) standards.

3. Clause 6.17 – the compliance with height, FSR and minimum lot size together with amended plans to address presentation to the street and adjoining developments provides a development consistent with the established character of the area, and which satisfies the objectives for character and landscape.

8. The parties agree that there is no inconsistency with the BMLEP 2015 and the SREP 1997.

9. Based on the amended plans and supporting documents, the contentions that relate to the controls as specified in the BMDCP 2015 are resolved to the satisfaction of the parties, specifically for private open space (F1.1.1), solar access (F1.1.4), adaptability (3.3.2), excavation and water quality (B2.4 B3.2.2, and C6.1.3) as they relate to dual occupancy dwellings.

10. The potential for amenity impacts raised by adjoining neighbours have been considered and addressed to the satisfaction of the parties through screening and reduction in door openings to adjoining properties. There are no adverse amenity impacts as a result of the proposed development that do not satisfy the standards and controls of the BMLEP 2015 and BMDCP 2015, respectively.

11. I am satisfied that there are no jurisdictional impediments to this agreement and that the DA based on the amended plans with supporting documents and provided for in the conditions of consent, 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:

Document	Prepared by:	Drawing No	Issue	Date
Site Analysis Plan	Villar Architect	DA1702-01	F	7/02/2019
Site & Floor Plans	Villar Architect	DA1702-02	F	7/02/2019
Concept Cut & Fill Plan; Erosion & Sediment Control Plan	Villar Architect	DA1702-03	F	7/02/2019
Elevations & Sections Plan	Villar Architect	DA1702-04	G	25/02/2019
Area Calculations, GFA Calculations & BASIX commitments	Villar Architect	DA1702-05	G	25/02/2019
Driveway Plan & Cross Sections	Villar Architect	DA1702-06	D	6/12/2018
Post Adaptation Plan	Villar Architect	DA1702-07	E	21/02/2019
Plan of subdivision	GB Meyer & Associates Surveyors	2-17/9	-	27/02/2019

2. The appeal is upheld.

3. Development Application No. X/1285/2017, for the construction of an attached dual occupancy and subsequent Torren title subdivision to create 2 lots each containing a dwelling house, on the land at 7 Nightingale Drive, Blaxland (Lot 4 DP 1228784) subject to the conditions of consent annexed hereto and marked “A”.

……………………….

Sarah Bish

Commissioner of the Court

Annexure A (309 KB, pdf)

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Decision last updated: 11 April 2019