Glenstone Holdings 3 Pty Ltd ATF 323 Macquarie Rd Unit Trust v Blue Mountains City Council

Land and Environment Court (NSW)|2024-09-13

Judgment

COMMISSIONER: This appeal was lodged by the applicant under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and concerns the refusal by Blue Mountains City Council (Council) of development application number X/1342/2023 (DA). The DA, as amended, seeks consent for seniors housing and associated development at Lot 1 in DP1090970 known as 323 Macquarie Road, Springwood (site).

Conciliation and agreement between the parties

At the parties' request, the Court arranged a conciliation conference between them under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 13 September 2024, and at which I presided. At the conference, the parties provided evidence of, and explained, the signed agreement behind the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended to address various contentions, and subject to conditions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The point of attention in this judgement is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' agreed jurisdictional statement received by the Court on 13 September 2024.

State Environmental Planning Policy (Resilience and Hazards) 2021

Section 4.6 requires a consent authority to consider whether the site is contaminated and whether there is a need for remediation. The parties advise in the long-term use of the site for residential purposes, a purpose not seen as at risk in regard to contamination. Due consideration has been given to the topic of contamination and there is no reasonable suggestion that the site requires remediation. I am satisfied that the requirements of s 4.6 have been met in this instance.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

The site is within the Hawkesbury Nepean Catchment, therefore Ch 6 applies.
The first provisions of relevance relate to water quality and quantity. The parties advise of the consideration of each of the provisions of s 6.6(1) and indicate their satisfaction in respect to each of those, as a consequence of the particulars of the proposal. The only finding of satisfaction required of the Court here is in respect to s 6.6(2). The parties assist here also in indicating their agreed direct finding of satisfaction in respect of both of these matters. I can accept the advice of the parties and I am satisfied that development ensures:

the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and
the impact on water flow in a natural waterbody will be minimised.

Section 6.7 relates to potential aquatic ecology impacts. Again the parties advise of the consideration of each of the matters at s 6.7(2). On the basis of the advice of the parties I am satisfied in regard to each of the relevant provisions at s 6.7(2).
Similarly in relation to s 6.9 and the topic of recreation and public access, I am satisfied in relation to the matters listed at s 6.9(2) based on the advice of the parties that the development does not impact recreation and public access, relevantly.
The parties have advised of their consideration of other relevant matters under Ch 6 but these do not require jurisidictional findings of the Court.

State Environmental Planning Policy (Transport and Infrastructure) 2021

The parties refer me to s 2.100, which seeks to manage the impacts of and from development that is in close proximity to rail corridors. The site is located near a rail corridor. The DA is supported by an Acoustic Report prepared by West & Associates Pty Ltd which the parties advise has considered the relevant requirements. The conditions of consent include a condition requiring compliance with the Acoustic Report. On the basis of the parties advice I am satisfied with respect to s 2.100.

Blue Mountains Local Environmental Plan 2015

The site is situated within R2 Low Density Residential zone. Seniors housing is permissible with consent.
The site is located within a heritage conservation area and the parties have advised of their relevant consideration under cl 5.10(4).
In relation to stormwater and cl 6.9, the parties advise and I accept that as a consequence of the stormwater management plans provided with the application (which include particulars relating to the collection and disposal of stormwater involving both re-use and infiltration provisions), I can be satisfied with respect to each of the matters at cl 6.9(2).
In relation to cl 6.23 and essential services parties advise that water supply, electricity, sewage, stormwater drainage and vehicular access are already available. I accept this advice and am satisfied in regard to the matters at cl 6.23(4).

Notification

The development application was placed on public exhibition and one submission was received, which has been considered by Council.

Conclusion

Based on the above reasoning, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
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 proposal generally.

Notation

The Court notes that Blue Mountains City Council as the relevant consent authority has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the description of the development application DA Number X/1342/2023 to be "Part demolition of existing structures, tree removal, and construction of a seniors housing development consisting of four dwellings and associated landscape and drainage works" and also agreed to plans and documents amendments listed below:

Reference/DWG No Title/Description Date Prepared By

Reference/ Title/Description DWG No Architectural Plans: DA-0001 Cover DA-0002 Site analysis DA-0003 Area Calculations DA-0004 BASIX Commitment DA-0100 Site Plan DA-0200 Demolition Plan DA-0201 Cut and Fill Plan DA-1100 Ground Floor Plan DA-1102 First Floor Plan DA-1103 Roof Plan DA-1104 Sub-Floor Plan DA-2000 Elevations 01 DA-2001 Elevations 02 DA-3000 Sections 01 DA-3001 Sections 02 DA-3002 Sections 03 DA-6201 Window Schedule DA-9100 Shadow Diagrams DA-9300 Finishes Schedule DA-9400 Eye of the Sun Diagrams Landscape Plans: LA 01 Cover Sheet LA 02 General Layout LA 03 Planting Plan LA 04 Plants' Schedule LA 05 Plants' Palette LA 06 Standard Details Stormwater Management Plans Sheet 1 Title of 8 Sheet 2 Site Drainage Plan 01 of 8 Sheet 3 Site Drainage Plan 02 of 8 Sheet 4 Rainwater of 8 Sheet 5 OSD Tank Details of 8 Sheet 6 Easement Line Long-Section of 8 Sheet 7 S3qm of 8 Sheet 8 Output Summary of 8 Document Name Date Arboricultural Impact Assessment & Tree Protection Plan v6.1 BASIX Certificate No. 1409088M_03 06/09/2024 Revision Prepared by Date E Integrated Design Group 04/09/2024 C Integrated Design Group 30/08/2024 G Integrated Design Group 30/08/2024 C Integrated Design Group 04/09/2024 J Integrated Design Group 04/09/2024 I Integrated Design Group 30/08/2024 C Integrated Design Group 30/08/2024 M Integrated Design Group 04/09/2024 I Integrated Design Group 30/08/2024 G Integrated Design Group 30/08/2024 E Integrated Design Group 30/08/2024 H Integrated Design Group 30/08/2024 H Integrated Design Group 04/09/2024 E Integrated Design Group 04/09/2024 E Integrated Design Group 04/09/2024 E Integrated Design Group 04/09/2024 A Integrated Design Group 06/09/2024 E Integrated Design Group 30/08/2024 D Integrated Design Group 30/08/2024 D Integrated Design Group 04/09/2024 8 Vertical Tree Management & Consultancy 03/09/2024 8 Vertical Tree Management & Consultancy 03/09/2024 8 Vertical Tree Management & Consultancy 03/09/2024 8 Vertical Tree Management & Consultancy 03/09/2024 8 Vertical Tree Management & Consultancy 03/09/2024 8 Vertical Tree Management & Consultancy 03/09/2024 Page & General Notes A-06 Broadcast Engineering & Environmental Consultants 04/09/2024 A-06 Broadcast Engineering & Environmental Consultants 04/09/2024 A-06 Broadcast Engineering & Environmental Consultants 04/09/2024 Tank + Infiltration Detail A-06 Broadcast Engineering & Environmental Consultants 04/09/2024 A-06 Broadcast Engineering & Environmental Consultants 04/09/2024 A-06 Broadcast Engineering & Environmental Consultants 04/09/2024 Broadcast Engineering & Environmental Consultants Broadcast Engineering & Environmental Consultants Prepared By Vertical Tree Management & Consultancy Dartecha Design

Orders

The Court orders: 1. The applicant shall pay the respondent's costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000.00 within 14 days of the date of this order. 2. The appeal is upheld. 3. Development Application X/1342/2023 for the partial demolition of existing structures, tree removal, and construction of a seniors housing development consisting of four dwellings and associated landscape and drainage works in relation to Lot 1 DP 1090970, being 323 Macquarie Road, Springwood is determined by the grant of consent subject to the conditions set out in Annexure A.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2024

(2023) 111 NSWLR 634

At a glance

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Judgment (13 paragraphs)

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Cases Cited (2)