Schindler v Blue Mountains City Council; Kearns v Blue Mountains City Council

Catchwords: APPEAL – development control order – dispute about terms of modified order
APPEAL – development application – temporary use of land for functions – conciliation conference – agreement reached – orders made
APPEAL – development control order concerning rural workers dwelling – conciliation conference – agreement reached – orders made

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.14, 4.15, 4.16, 8.7, 8.18, 9.34, Pt 1 Sch 5
Land and Environment Court Act 1979 (NSW), s 34
Blue Mountains Local Environment Plan 2015, cl 2.8
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.9
State Environmental Planning Policy (Housing) 2021, Pt 6
State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: NSW Government, Planning for Bush Fire Protection, November 2019

Category: Principal judgment

Parties: Malina Schindler; Malina Kearns (Applicant)
Blue Mountains City Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
T Cork (Solicitor) (Respondent)
Solicitors:
Crennan Legal (Applicant)
McPhee Kelshaw Solicitors (Respondent)

File Number(s): 2025/88704; 2023/111967; 2023/111953

Publication restriction: No

Judgment

1. COMMISSIONER: At 415-419 Hat Hill Road, Blackheath, a 20 acre property sits atop an escarpment overlooking the Blue Mountains National Park. For many years, the site has been used for functions and for short term accommodation. Three appeals come before the Court concerning those uses.

2. The first and second appeal concern development control orders issued by the Blue Mountains City Council (the Council) on 24 March 2023. The development control order the subject of the appeal in proceedings 2023/111953 requires the applicant to stop use of the land for the purpose of a function centre (function centre order), and the development control order the subject of the appeal in proceedings 2023/111967 requires the applicant to stop use of premises on the land for temporary or short-term accommodation on a commercial basis (accommodation order). The two appeals are lodged by the applicant, who is known as both Malina Kearns and Malina Schindler, pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

3. The third appeal, proceedings 2025/88704, concerns a development application for the temporary use of land for functions for up to 28 days per year. An earlier iteration of the development application was refused by the Council on 24 February 2025. The appeal is lodged by the applicant pursuant to s 8.7 of the 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 conciliated outcome in two of the appeals

4. The final orders in the appeal concerning the development application (2025/88704), and those in the appeal concerning the accommodation order (2023/111967), outlined in [35]-[36] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

5. Following an adjournment of the hearing of all three appeals, the Court arranged a conciliation conference in proceedings 2025/88704 and 2023/111967, under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 3 September 2025. I presided over the conciliation conference.

6. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in each proceedings that was acceptable to the parties. The agreement was filed the same date, on 3 September 2025.

The agreement in the development appeal

7. The decision agreed upon in the development appeal is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The development consent the subject of the decision agreed upon is for the temporary use of the land, for up to 28 days per year for events for up to 100 people such as weddings, wakes, celebrations and corporate functions, in accordance with cl 2.8 of the Blue Mountains Local Environment Plan 2015 (BMLEP). The development consent includes the erection of marquees in association with the events.

8. The existing dwelling and studio are intended to be used as short-term rental accommodation for up to 16 guests, which is exempt from the requirement to obtain development consent under Pt 6 of the State Environmental Planning Policy (Housing) 2021, and therefore does not form part of the development consent the subject of the decision agreed upon.

9. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court, in exercising the functions of the consent authority, must be satisfied of prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, 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.

10. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

11. Although a function centre is a prohibited use in the C3 Environmental Management zone in which the site is located, the temporary use is permissible pursuant to cl 2.8 of the BMLEP, subject to satisfaction of the matters in cl 2.8(3). The proposed development meets the requirement in cl 2.8(2), and, based on the Statement of Environmental Effects dated 18 July 2025 (SEE), I am satisfied of each of the matters in cl 2.8(3).

12. Section 4.14 of the EPA Act applies to the site, as it is mapped as bush fire prone land. Based on the Bushfire Protection Assessment dated 31 January 2024 (prepared for an earlier iteration of the development application) and the Bushfire Emergency Evacuation Plan dated October 2023 , I am satisfied that the development conforms to the specifications and requirements of the Planning for Bush Fire Protection 2019, as required by s 4.14(1)(a).

13. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Having regard to the summary of the Preliminary Site Investigation contained within the SEE, the site is not contaminated.

14. The site is in the Hawkesbury-Nepean Catchment, and therefore Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. Based on the Jurisdictional Statement and the SEE, and the fact that the proposed development is for a temporary use, with only temporary marquees erected and use of portable toilets, I am satisfied of the matters in ss 6.6(2) and 6.7(2) of the SEPP B&C. Further, the development will not change any public access to recreational areas of waterbodies, and I am therefore satisfied of the matters in s 6.9(2).

15. The development application was notified from 12 to 24 April 2024, and again, following amendment, between 15 and 29 August 2025. Both submissions in support and submissions against the proposed development were received. I have considered the issues raised in those submissions.

16. Having reached the state of satisfaction that the decision is one that the Court could have made 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)).

17. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.

The agreement in the appeal concerning the accommodation order

13. The accommodation order was issued pursuant to s 9.34(1) of the EPA Act, which allows a development control order to be given in accordance with the table to Pt 1 of Sch 5 to the EPA Act. The accommodation order is a stop use order, issued pursuant to Item 1 of Pt 1 of Sch 5 of the EPA Act. It requires the applicant to cease use of the cottage located on the site and known as ‘Isabella’, for the purpose of temporary or short term rental accommodation or functions on a commercial basis. Item 1 in the table allows a development control order to be issued as a stop use order where premises are being used in contravention of a planning approval. The building to which the accommodation order relates benefits from a planning approval for the purpose of a rural workers’ dwelling, and has been used for the purpose of short term rental accommodation.

14. The decision agreed upon in the parties’ signed agreement is for the order to be modified. The modified order remains an order to stop use of the premises for the purpose of temporary or short term rental accommodation or functions on a commercial basis. There is therefore power to issue the order pursuant to s 9.34(1) and Sch 5 of the EPA Act.

15. In addition, s 8.18(4) of the EPA Act gives the Court broad powers on an appeal against an order. Those powers are as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

16. I am satisfied that the decision to modify the order in the terms agreed to by the parties 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), for the reason that s 8.18(4)(b) of the EPA Act gives the Court the power, on the hearing of the appeal, to modify the development control order.

17. Having reached the state of satisfaction that the decision agreed upon is a decision that the Court could make in the exercise of its functions in each of the appeal proceedings, 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)).

18. In making order 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 issues that were originally in dispute between the parties concerning the accommodation order.

The dispute remaining between the parties in relation to the function order

19. The function centre order is also a stop use order, issued pursuant to s 9.34(1) and Item 1 of Pt 1 of Sch 5 of the EPA Act. It requires that the applicant stop use of the land as a function centre.

20. The terms of a proposed modified function centre order remain in dispute between the parties. The appeal concerning the function centre order (2023/111953) therefore proceeded to a hearing on 3 September 2025.

21. The parties agree that, other than functions that comply with the development consent the subject of the agreement in 2025/88704, functions should not occur on the site. Compliance with the agreed conditions of that development consent requires that there be no amplified music outdoors. This is required by condition 4, and is based on the acoustic report recommendations contained in the Environmental Noise Assessment dated 18 July 2025 (the acoustic report).

22. The requirement to comply with the recommendations contained in the acoustic report is a necessary component of the consent for the temporary use. Clause 2.8(3) of the BMLEP states that development consent must not be granted for the temporary use unless the consent authority is satisfied that, at (b), “the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood”. The acoustic report considers the measures required to ensure that the temporary use will “not adversely impact” on neighbouring properties. One such measure is that only unamplified music or background music is permitted outside, and that any amplified music occurs indoors with windows closed.

23. Despite the parties’ agreement that this ought to be imposed as a condition of the development consent, the applicant seeks that the Court exercise its discretion so that this requirement not apply to functions that are already booked in to occur at the site. This includes events on the following dates:

| Date | Guests | | 20 September 2025 | 65 | | 27 September 2025 | 85 | | 18 October 2025 | 130 | | 8 November 2025 | 80 | | 15 November 2025 | 100 | | 22 November 2025 | 130 | | 6 December 2025 | 80 | | 14 December 2025 | 150 | | 15 December 2025 (Brunch event – no music) | 110 | | 3 January 2026 | 90 | | 11 April 2026 | 60 | | 2 May 2026 | 100 | | 9 May 2026 | 70 | | 5 September 2026 | 80 |

24. These bookings were made at a time when there was an agreement with the Council for the function use to continue, subject to agreed terms, including that functions will cease by 10pm.

25. The subject matter of the dispute is whether these events should benefit from an exception to the requirement to have only unamplified music outdoors. It is understood that the functions were booked around 18 months prior to the date of the function, and that, for each (other than perhaps 15 December 2025), the arrangement is to have a DJ booth in the marquee.

The applicant’s position

26. Despite the long history of the function use on the site, the applicant recognises the desirability of having a development consent in place for the function use, so as to provide certainty around her operations as well as clarity on the conditions of the use that will avoid adverse impacts on her neighbours. Whilst the applicant says she could rely on existing use rights, she prefers that a consent is in place as agreed upon. However, she advances three reasons why the functions already booked ought not be subject to the requirement for there to be only unamplified music outdoors.

27. The first reason advanced in support of this position, is that there have been so few noise complaints concerning the use of the site for functions. Over the 20 years of carrying out functions on the site, only 9 noise complaints have been received by the Council (see Ex B). Two of these can be discounted as they relate to fireworks and a helicopter landing, and the agreed conditions of consent preclude either of these activities from occurring in association with the function use. The remaining number of complaints is 7, which the applicant says is a small number when compared to the large number of functions held on the site over the past 20 years, likely to be hundreds. Further, in response to the notification of the development application, only two submissions were received that were against the proposed development, and only one raised the issue of noise from functions. The applicant points out that, since the issue of the function centre order, and, following the agreement of the Council for the function use to continue, the functions have been carried out with amplified music outdoors, yet no noise complaints have been made.

28. The second reason advanced in support of her position is that the other noise mitigation measures required by the agreed conditions of consent will remain in place for those functions. This includes the requirement for all functions to cease by 10pm, for there to be no drums or low frequency instruments, for there to be a person available to receive complaints, for there to be a wind-down procedure for music and guest departure, and for compliance with the Plan of Management dated 20 August 2025. This means that any acoustic impact from those events will be minimised.

29. The third reason why the applicant says that the booked events should proceed without being constrained by the condition to have only unamplified music outdoors, is the potential impact on her business. It was submitted on behalf of the applicant that there is potential for breach of contract with clients, as well as potential reputational damage if bad reviews are left online from disgruntled clients if changes to the music need to be made for these functions.

The Council’s position in response

30. The Council’s position is that, with the parties having reached an agreed position on the grant of development consent subject to conditions, it would be anomalous for a modified order to permit functions that do not meet the requirements of the agreed conditions. The Council submits that to allow those functions to take place with amplified music outdoors would be to allow an activity that, in accordance with the acoustic report, would have an adverse impact on neighbours. The Council submits that it is not appropriate to utilise a development control order to allow events that would not comply with the conditions of development consent, which are agreed as being required to avoid adverse impacts from such events.

31. The Council’s preference is therefore that the order be revoked, which will mean that, in order to carry out functions on the site, the applicant will be required to take up the consent for the temporary function use and adhere to all of the conditions for each event, including the condition preventing amplified music outdoors.

The appropriate outcome on the function centre order

32. I consider that, based on the acoustic report, it would be inappropriate to allow all of the events specified in [23] to proceed without requiring compliance with the restriction on amplified music outdoors. The acoustic report sets out the measures required to ensure that the use will “not adversely impact” neighbouring properties. Given that one such measure is that only unamplified music or background music is permitted outside, it is axiomatic that the use of amplified music outdoors is likely to cause an adverse impact. I therefore agree with the Council’s position that it is not appropriate to allow an activity that, in accordance with the acoustic report, would have an adverse impact on neighbours.

33. However, three of those events are within the next 6 weeks. Taking a pragmatic approach, it seems unfair to expect alternative arrangements for music for those functions to be made on such short notice, particularly in circumstances where no complaints have been made concerning noise from functions at the site since the issue of function centre order. In my view, for the remaining events (8 November 2025 onwards), the applicant should comply with the condition requiring that there be only unamplified music or background music outside. There is no evidence in support of the applicant’s submission that doing so would result in an actual loss by breach of contract or otherwise.

34. I therefore consider that the function centre order should be modified, pursuant to s 8.18(4)(b) of the EPA Act, as sought by the applicant. The order remains a stop use order but requires compliance with the development consent, with the exception of the 3 functions in the next 6 weeks. The reference to the remainder of the events, as sought by the applicant in the proposed modified order in Ex E, is deleted.

Final orders

In proceedings 2025/88704:

35. The Court orders that:

36. The appeal is upheld.

37. Development consent is granted to Development Application No. X/229/2024 (as amended) for the temporary use of land known as 415-419 Hat Hill Road, Blackheath for up to 28 days per year for events such as weddings, wakes, celebrations and corporate functions subject to the conditions at Annexure A.

In proceedings 2023/111967:

36. The Court orders that:

37. The appeal is upheld.

38. The development control order issued by the respondent to the applicant dated 24 March 2023 is, pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW), modified in accordance with the development control order at Annexure B.

In proceedings 2023/111953:

37. The Court orders that:

38. The appeal is upheld.

39. The development control order issued by the respondent to the applicant dated 24 March 2023 is, pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW), modified in accordance with the development control order at Annexure C.

J Gray

Commissioner of the Court

Annexure A (201 KB, pdf)

Annexure B (152 KB, pdf)

Annexure C (162 KB, pdf)

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