Part 1
Preliminary
Part 1 Preliminary
Part 1 Preliminary
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New South Wales regulation
**What this instrument does (mechanically)
Sets the local planning rules that apply to most land inside the Blue Mountains City area (see clause 2 and Map Panel A in clause 7). It is a map‑based local environmental plan (LEP) that: zones land, designates protected areas, lists heritage items and conservation areas, and establishes precinct‑specific rules (Schedules 1–8).
Establishes who decides planning applications: Blue Mountains City Council is the consent authority (clause 5). Many approvals are conditional on studies, plans and statements being supplied (site analysis plan cl 42–43; heritage impact statements cl 71; water/soil reports cl 96–97; landscape plans cl 65–66, etc.).
Controls what land uses are allowed in which zones via a land‑use matrix (clause 32). The matrix marks uses that are: permitted without consent, permitted with consent, or prohibited; some uses are only allowed in particular precincts (clause 32(6)).
Prescribes detailed development controls: building heights, setbacks, site coverage, floor‑space ratios, and many place‑specific design rules in village precinct divisions (Schedule 1) and living/living‑conservation/bushland zones (Schedule 2). Those precinct rules must be complied with before consent (e.g. clauses in Schedule 1 precinct divisions).
Requires environmental protections and assessments for development affecting National Park, watercourses, slopes, vegetation communities, water‑supply catchments and escarpments (Part 3: clauses 41–59 and Protected Area clauses 45–51). For land in map‑designated protected areas, detailed environmental assessment is mandatory before consent.
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Direct links to the current provisions in Blue Mountains Local Environmental Plan 2005.
Part 1 Preliminary
Division 1 Administration
2 Land to which plan applies
(1) This plan applies to all land within the City, except land—
(a) to which Blue Mountains Local Environmental Plan No 4 applies, being land shown on the Map by distinctive colouring as “Area subject to LEP 4”, or
(b) to which Blue Mountains Local Environmental Plan 1991 applies, being land—
(i) shown on the Map by distinctive colouring as “Area subject to LEP 1991”, or
(ii) not shown on the Map.
(2) Clause 3, for the purpose only of delineating the land to which this plan and those plans apply, also applies to the land to which those plans apply.
(3) Land shown as “Deferred Matter” on the Map by a distinctive hatching is not subject to this plan (being land that is excluded from the application of this plan under section 68 (5) or 70 (4) of the Act).
3 Relationship to other environmental planning instruments
(1) This plan amends Blue Mountains Local Environmental Plan No 4 by replacing clause 3 with the following clause—
(2) This plan amends Blue Mountains Local Environmental Plan 1991 by replacing clause 2 with the following clause—
(3), (4) (Repealed)
cl 3: Am 2007 (641), Sch 5.4 [1]; 2019 (659), Sch 1.4[1].
4 Regulatory instruments
(1) For the purpose of enabling development to be carried out in accordance with this plan (as in force when the development is carried out) or in accordance with a consent granted under the Act, any agreement, covenant or similar instrument imposing a restriction as to the erection or use of buildings or as to the development of land for certain purposes, shall not apply to any such development.
(2) Nothing in subclause (1) affects the rights or interests of the Council or any other public authority under any registered agreement.
(3) Nothing in subclause (1) affects a covenant required by the consent authority to be imposed.
(4) In accordance with section 28 (3) of the Act, before the making of this plan the Governor approved of subclauses (1), (2) and (3).
5 Consent authority for this plan
Blue Mountains City Council is the consent authority for the purposes of this plan, subject to the Act.
6 Definitions and interpretation
(1) A term defined in the Dictionary at the end of this plan has the same meaning when used in this plan.
(2) In this plan—
(a) a reference to a building or place used for a purpose includes a reference to a building or place intended to be used for that purpose, and
(b) a reference to a map is a reference to a map held within the offices of the Council, and
(c) a reference to the Council’s Better Living DCP is a reference to Part D (Standards for Development) of the Better Living—Development Control Plan approved by the Council on 8 March 2005.
(3) Explanatory notes to this plan, diagrams and captions to diagrams, and the list of contents, are not part of this plan.
(4) Savings and transitional provision Local environmental plans (including Blue Mountains Local Environmental Plan No 4) as in force immediately before the commencement of this plan, apply to a development application that was made but had not been finally determined before that commencement as if this plan had been exhibited but had not been made.
(5) If a development application has been made before the commencement of State Environmental Planning Policy Amendment (Planning for Bush Fire Protection) 2020 in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if that Policy had not commenced.
cl 6: Am 2020 (69), Sch 1.2[1].
7 Map supporting the plan
The land to which this plan applies is shown on the Map, with each sheet of the Map illustrating a part of the land and divided into three panels as follows—
(a) “Map Panel A: Zones, Precincts and Provisions” shows the zone or zones, any precincts and any map-designated provisions applying to that part of the land, and
(b) “Map Panel B: Protected Areas” shows any protected area or areas applying to that part of the land, and
(c) “Map Panel C: Heritage Conservation and Special Use” shows land that is subject to the heritage conservation provisions of this plan and land that is subject to the special use provisions of this plan.
8 Zones, precincts, protected areas and other map designations
(1) Land is within a zone specified in subclause (2) if it is shown on Map Panel A by distinctive colouring as being within that zone.
(2) This plan uses the following zones—
(a) Village—Town Centre,
(b) Village—Neighbourhood Centre,
(c) Village—Tourist,
(d) Village—Housing,
(e) Living—General,
(f) Living—Conservation,
(g) Living—Bushland Conservation,
(h) Employment—General,
(i) Employment—Enterprise,
(j) Regional Transport Corridor,
(k) Recreation—Private,
(l) Recreation—Open Space,
(m) Environmental Protection—Private,
(n) Environmental Protection—Open Space.
(3) Land is within a precinct if it is shown on Map Panel A by distinctive edging and annotation as being within that precinct.
(4) Land is subject to the map-designated provision specified in subclause (5) if it is shown on Map Panel A by distinctive hatching, edging or annotation as being subject to that provision.
(5) This plan uses the following map-designated provisions—
(a) Accessible Housing Area,
(b) Acquisition Requirement,
(c) Consolidation (CONS) Requirement,
(d) No Subdivision (NS),
(e) Proposed Road Closure.
(6) Land is within a protected area specified in subclause (7) if it is shown on Map Panel B by distinctive colouring, hatching or edging as being within that protected area.
(7) This plan uses the following protected areas—
(a) Slope Constraint Area,
(b) Vegetation Constraint Area,
(c) Ecological Buffer Area,
(d) Escarpment Area,
(e) Water Supply Catchment,
(f) Riverine Scenic Quality Corridor,
(g) Period Housing Area.
(8) Map Panel C identifies land that is a heritage item, a heritage item of State significance or within a heritage conservation area by distinctive edging, hatching or colouring.
(9) Land is subject to a special use designated in subclause (10) if it is shown on Map Panel C by distinctive colouring as being subject to that special use.
(10) This plan uses the following special use designations—
(a) cemetery,
(b) defence,
(c) depot,
(d) educational establishment,
(e) emergency services,
(f) hospital or health centre,
(g) parking facility,
(h) public building or facility,
(i) waste management facility.
9 Considerations before development consent
Before granting consent to the carrying out of any development on land to which this plan applies, the consent authority is to be satisfied that the development—
(a) is consistent with the aim of this plan and the principles and practices of ecologically sustainable development, and
(b) complies with the principal objectives of the plan that are relevant to the development, and
(c) complies with the locality management provisions within Part 2 that apply to the land, and
(d) complies with the assessment requirements and provisions within Part 3 that are relevant to the development, and
(e) complies with the development provisions within Part 4 that are relevant to the development.
9A Exceptions to development standards
(1) The objectives of this clause are as follows—
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant for development consent has demonstrated that—
(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and
(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.
Note—
The Environmental Planning and Assessment Regulation 2021 requires the development application to be accompanied by a document setting out the grounds on which the applicant seeks to demonstrate the matters in paragraphs (a) and (b).
(4) The consent authority must keep a record of its assessment carried out under subclause (3).
(5) (Repealed)
(6) Development consent must not be granted under this clause for a subdivision of land in the Environmental Protection—Private zone, Environmental Protection—Open Space zone or Living—Bushland Conservation zone if—
(a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or
(b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.
(7) (Repealed)
(8) This clause does not allow development consent to be granted for development that would contravene any of the following—
(a) a development standard for complying development,
(b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated,
(c) clause 90(9) (which relates to the area of a development space within the Living—Bushland Conservation zone),
(d) the provisions of Schedule 1 that relate to “site coverage” or “development density” and apply to development of land within the Village—Housing zone.
cl 9A: Ins 2019 (659), Sch 1.4[2]. Am 2023 (524), Sch 1.1[1].
9B Savings provisions relating to development applications
(1) A development application made, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Exceptions to Development Standards) 2023 must be determined as if that policy had not commenced.
(2) A development application made, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Flood Planning) 2023 must be determined as if that policy had not commenced.
cl 9B: Ins 2023 (524), Sch 1.1[3]. Am 2023 (609), Sch 2.3[1].
Division 2 Planning principles
10 Aim of the plan
The aim of this plan is to provide a comprehensive and explicit framework for the development of land within the City, as the “City within a World Heritage National Park”, in a manner that is consistent with and promotes the principles and practices of ecologically sustainable development.
11 Ecologically sustainable development
(1) In this plan, ecologically sustainable development means development that improves the quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends.
(2) This plan acknowledges the following principles and practices of ecologically sustainable development—
(a) Integration—the effective integration of environmental, social and economic considerations in decision-making.
(b) Community involvement—recognition that sustainability cannot be achieved, nor significant progress made toward it, without the support and involvement of the community.
(c) Precautionary behaviour—where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by—
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(ii) an assessment of the risk weighted consequences of various options, with particular consideration given to cumulative impacts and ensuring that previous environmental damage is not compounded.
(d) Equity within and between generations—fairness and equal access to opportunities both in our lifetimes, as well as for future generations.
(e) Continual improvement—the declining environmental situation means there is an imperative to take immediate action to ensure development becomes more sustainable and to make continual improvement in the management of that development.
(f) Conservation of biological diversity and ecological integrity—the protection of biological diversity and the maintenance of essential ecological processes and life-support systems should be a fundamental consideration.
(g) Improved valuation and pricing of environmental resources—environmental factors should be included in the valuation of assets and services.
12 Principal objectives of the plan
The principal objectives of this plan are—
(a) To maintain the unique identity and values of the City as the “City within a World Heritage National Park”.
(b) To meet the needs of residents, visitors and the business community through the provision of an appropriate balance of land uses and built forms that respond to the principles of ecologically sustainable development.
(c) To conserve and enhance, for current and future generations, the ecological integrity, environmental heritage and environmental significance of the Blue Mountains.
(d) To identify and conserve the distinct Aboriginal and European cultural heritage of the built forms and landscapes of the Blue Mountains.
(e) To preserve and enhance watercourses, riparian habitats, wetlands and water quality within the Blue Mountains, the Hawkesbury-Nepean River catchment and Sydney’s drinking water catchments.
(f) To prescribe limits to urban development having regard to the potential impacts of development on the natural environment and the provision, capacity and management of infrastructure.
(g) To limit exposure to bush fire hazards and to ensure that development of bush fire prone land incorporates effective measures that protect human life, property and highly valued environmental and other assets from bush fire, without unacceptable environmental impacts.
(h) To identify and retain the diverse built and landscape elements that contribute to the character and image of the Blue Mountains.
(i) To promote the provision of accessible, diverse and affordable housing options to cater for the changing housing needs of the community.
(j) To ensure that the social needs of existing and future residents are met through the provision of appropriate community facilities, open space and services.
(k) To provide sustainable employment opportunities and strengthen the local economic base by encouraging a range of enterprises, including tourism, which respond to lifestyle choices, emerging markets and changes in technology, while protecting local amenity, character and environmental values.
(l) To ensure that the siting and design of new buildings, facilities and structures intended primarily for public use make reasonable provision for safe and comfortable access to those buildings for all people, including older people, people with a disability and those with limited mobility.
(m) To integrate development with transport systems and promote safe and sustainable access opportunities, including public transport initiatives, walking and cycling.
(n) To protect and promote the use and development of land for arts and cultural activity, including music and other performance arts.
cl 12: Am 2020 (724), Sch 1.2.
Part 2 Locality management
13 General locality management
(1) Consent shall not be granted to the carrying out of any development on land to which this plan applies unless—
(a) the development complies with the zone objectives within Division 2 (Zone objectives) that apply to the land and that are relevant to the development, and
(b) the development proposed to be carried out is permissible within the zone applying to the land in accordance with Division 3 (Permissibility of land use).
(2) Consent shall not be granted to development on land that adjoins land in another zone unless the development proposed to be carried out does not compromise achieving the objectives of the adjoining zone and the consent authority is satisfied that sufficient consideration has been given to the measures proposed to reduce any adverse impacts of the development on land within that adjoining zone.
14 Locality management within the villages
Consent shall not be granted to development within the—
(a) Village—Town Centre zone, or
(b) Village—Neighbourhood Centre zone, or
(c) Village—Tourist zone, or
(d) Village—Housing zone,
unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified for the relevant village within Schedule 1, and complies with those provisions.
15 Locality management within the living zones
(1) Consent shall not be granted to development within the Living—General zone unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified within Part 1 of Schedule 2, and complies with those provisions.
(2) Consent shall not be granted to development within the Living—Conservation zone or to development within roads shown uncoloured on the Map and adjoining the Living—Conservation zone unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified within Part 2 of Schedule 2, and complies with those provisions.
(3) Consent shall not be granted to development within the Living—Bushland Conservation zone unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified within Part 3 of Schedule 2, and complies with those provisions.
16 Locality management within the employment zones
(1) Consent shall not be granted to development within the Employment—General zone unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified within Part 1 of Schedule 3, and complies with those provisions.
(2) Consent shall not be granted to development within the Employment—Enterprise zone unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified within Part 2 of Schedule 3, and complies with those provisions.
17 Locality management within the recreation zones
(1) Consent shall not be granted to development within the Recreation—Private zone unless the development proposed to be carried out has been assessed in accordance with—
(a) the relevant precinct provisions within Part 1 of Schedule 4, or
(b) Division 2 of Part 1 of Schedule 4, where the development proposed to be carried out is not within a specific precinct,
and complies with those provisions.
(2) Consent shall not be granted to development within the Recreation—Open Space zone unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified within Part 2 of Schedule 4, and complies with those provisions.
18 Village—Town Centre zone
The objectives for the Village—Town Centre zone are as follows—
(a) To promote and consolidate the larger towns and villages within the Blue Mountains as the focus of retail, commercial, and community activity.
(b) To promote the unique character of each of the towns and villages of the Blue Mountains.
(c) To promote the economic viability of the towns and villages.
(d) To encourage a broad range of tourist activity in the towns and villages.
(e) To encourage a mix of residential land uses in association with business and community land uses.
(f) To focus large scale retailing and other higher order uses in appropriate locations within the district centres of Katoomba and Springwood.
(g) To promote high quality urban design of built forms.
19 Village—Neighbourhood Centre zone
The objectives for the Village—Neighbourhood Centre zone are as follows—
(a) To encourage a range of local convenience shopping facilities and associated commercial and community activities.
(b) To encourage a mix of residential land uses in association with a primarily commercial or retail land use.
(c) To direct future major commercial, retail and professional services to the village areas, thereby discouraging ribbon development along major arterial roads.
(d) To ensure that development contributes to the creation of a distinct village identity.
(e) To ensure that the non-residential uses are environmentally compatible with the residential uses and do not unreasonably affect the residential amenity within the zone as a result of factors such as operating hours, noise, loss of privacy, and pedestrian and vehicular traffic.
(f) To promote high quality urban design of built forms.
20 Village—Tourist zone
The objectives for the Village—Tourist zone are as follows—
(a) To allow opportunities for the development of a variety of tourist-orientated land uses and services within a predominantly residential area.
(b) To allow for the consolidation of tourism-related land uses in existing major tourism precincts in the Blue Mountains.
(c) To ensure that development contributes to a strengthening of the landscape character and visual setting along significant tourist routes.
(d) To retain and enhance the established traditional streetscape character and heritage values, including mature vegetation and gardens, that contribute to the attraction of the area for residents and visitors.
(e) To ensure that the building form and design of non-residential land uses do not unreasonably detract from the amenity of adjoining or adjacent residents or the existing quality of the environment by its scale, height, bulk or operation.
(f) To only permit development that does not place unacceptable demands on infrastructure and services.
21 Village—Housing zone
The objectives for the Village—Housing zone are as follows—
(a) To provide diverse housing types in terms of size, access, tenure and levels of affordability.
(b) To consolidate residential opportunities in areas within close proximity to commercial centres and railway stations.
(c) To make area-specific provisions in relation to density, design, form, building materials and landscaping to retain the distinct character of the relevant village location and maintain appropriate transitions to adjoining land uses.
(d) To encourage the provision of housing options that are designed to be accessible for people with special needs or are easily adaptable for these needs in the future.
(e) To ensure that residential development has a scale and character at the streetscape that is consistent with adjoining residential land uses and minimises adverse impact on environmental quality and on the amenity of residents.
(f) To permit only development that does not place unacceptable demands on infrastructure and services.
22 Living—General zone
The objectives for the Living—General zone are as follows—
(a) To allow for residential development primarily in the form of detached single dwelling houses in a variety of types, designs and tenures.
(b) To promote residential development in locations that are accessible to services and facilities, thereby encouraging use of transport modes other than private motor vehicles.
(c) To ensure that residential and non-residential development maintains and improves the character of residential areas, in a manner that minimises impacts on the existing amenity and environmental quality of those areas.
(d) To allow a range of non-residential land uses that are consistent with the predominant scale and height of adjoining buildings and do not unreasonably detract from the amenity of adjoining or adjacent residents.
(e) To ensure that development responds to the environmental characteristics of the site.
23 Living—Conservation zone
The objectives for the Living—Conservation zone are as follows—
(a) To retain and enhance the character of residential areas that are formed by larger allotments and single dwelling houses within a prominent traditional garden setting.
(b) To enhance the landscape character and setting along roads of heritage significance where the road forms a visually significant entrance to a village or a linkage/pathway between major visitor destinations.
(c) To ensure development, including development within adjoining road reserves, retains the prominence of landscape elements and traditional garden settings.
(d) To ensure that established gardens are retained or landscape settings are re-established as part of any development of land, including development involving major alterations and additions.
(e) To allow for a limited range of non-residential land uses where these are conducted in association with a predominantly residential land use and are consistent with the retention of a residential character based on a landscape or open space setting.
24 Living—Bushland Conservation zone
The objectives for the Living—Bushland Conservation zone are as follows—
(a) To allow for residential development in the form of single detached dwellings where this development is within the capacity of the environment to sustain such development and is undertaken in a manner that minimises impact on environmentally sensitive areas.
(b) To preserve and re-establish native bushland in areas that exhibit a predominantly bushland character, where consistent with the protection of assets from bush fire.
(c) To permit only low density residential land uses and to retain large allotment sizes in fringe urban locations or locations that do not have reasonable access to services and facilities.
(d) To allow a limited range of non-residential land uses only where these are conducted in association with a predominantly residential land use.
(e) To ensure that the form and siting of buildings, colours, landscaping and building materials are appropriate for and harmonise with the bushland character of the locality.
(f) To encourage the retention and re-establishment of native bushland along significant fauna corridors and in areas of high visual significance, including escarpment areas and along the Regional Transport Corridor.
25 Employment—General zone
The objectives for the Employment—General zone are as follows—
(a) To encourage the establishment of a broad range of industrial and associated land uses which will generate greater local employment opportunities.
(b) To allow a wide range of employment generating land uses and facilities including industry, advanced technology, wholesale sales, storage, distribution, servicing, research and ancillary administrative uses, where these incorporate measures to conserve the sensitive environment of the Blue Mountains.
(c) To ensure that industrial development incorporates measures to mitigate the impact of its operation on the environment from noise generation or pollution.
(d) To allow retail development where it is associated with a primarily industrial land use or for appropriate bulky goods retailing.
(e) To ensure that the form and siting of buildings, colours and landscaping elements contribute to development of a landscape setting for industrial land uses and retain any existing bushland character.
(f) To allow industrial and other compatible development which incorporates controls on potential impacts on the amenity of residents in adjoining residential areas.
26 Employment—Enterprise zone
The objectives for the Employment—Enterprise zone are as follows—
(a) To promote the development of mixed use residential and business areas with a high quality built environment and amenity.
(b) To provide greater opportunities for the location and growth of small businesses, particularly those related to information technology and cultural industries such as arts and design-based businesses and associated production.
(c) To permit minor retail uses where they are ancillary to the primary land use and do not detract from the growth of the town and village centres as primary retailing centres.
(d) To ensure that the design of new development is adaptable for both residential and business land uses.
(e) To ensure that development incorporates landscape elements that provide an appropriate landscape setting for business and residential land uses.
(f) To allow for the provision of recreational facilities.
27 Regional Transport Corridor zone
The objectives for the Regional Transport Corridor zone are as follows—
(a) To clearly identify land for the provision of major transportation networks and facilities.
(b) To recognise corridors of existing railway and classified road lands and to identify future road and railway alignments.
(c) To ensure that development within the zone is integrated with the surrounding natural, physical or built environment.
(d) To ensure that all works contribute to the safe and effective operation of classified roads for pedestrians, cyclists, public transport users and motorists.
(e) To identify land that is required for widening of the corridor and to enable its acquisition by the relevant authority.
28 Recreation—Private zone
The objectives for the Recreation—Private zone are as follows—
(a) To encourage the development of land in a manner which satisfies the private recreational needs of the community.
(b) To allow development of land uses and activities that support and are compatible with private recreational land use.
(c) To ensure that recreational development is environmentally sensitive and site responsive and compatible with use of the land for sport, entertainment, education, tourism and accommodation of older people and people with a disability.
29 Recreation—Open Space zone
The objectives for the Recreation—Open Space zone are as follows—
(a) To enhance the quality of life of residents and visitors and improve the amenity of the villages in the Blue Mountains through the provision and management of open space.
(b) To identify and provide public land to be used for open space and public recreational purposes.
(c) To provide for a range of recreational settings to cater for the needs of local residents and visitors.
(d) To promote improved recreational facilities on publicly owned land.
(e) To improve the environmental quality of the area and ensure that recreational development is environmentally sensitive and site responsive.
(f) To identify privately owned land that should be acquired for recreational purposes.
(g) To ensure that the development of land is consistent with any plan of management applying to the land.
30 Environmental Protection—Private zone
The objectives for the Environmental Protection—Private zone are as follows—
(a) To protect land that is environmentally sensitive or has high scenic value from development, where that land is privately owned or is not intended to be used as public open space.
(b) To encourage land restoration works on disturbed bushland areas.
(c) To allow bush fire hazard reduction that is in a form consistent with the protection of natural ecological values.
(d) To restrict development on part of land that is inappropriate by reason of physical characteristics or high bush fire hazard, but only where less restricted development is allowed by this plan elsewhere on the land due to its different zoning.
(e) To contribute to the maintenance of bio-diversity in the Blue Mountains.
(f) To allow for low impact nature-based recreational activities that are consistent with the protection of the land’s natural ecological significance.
31 Environmental Protection—Open Space zone
The objectives for the Environmental Protection—Open Space zone are as follows—
(a) To ensure conservation and facilitate management of environmentally sensitive land and areas of high scenic value in the City.
(b) To provide a buffer around areas of natural ecological significance.
(c) To restrict development on land that is inappropriate by reason of the physical characteristics or the high bush fire hazard of the land.
(d) To allow bush fire hazard reduction that is in a form consistent with the protection of natural ecological values.
(e) To provide for nature-based recreational opportunities that are compatible with the land’s natural, cultural and aesthetic values and to foster an appreciation of those values.
(f) To encourage land restoration works on disturbed bushland areas.
(g) To ensure that the development of land is consistent with any plan of management applying to the land.
(h) To identify privately owned land that should be acquired for environmental protection and open space purposes.
Division 3 Permissibility of land use
32 Land use matrix
(1) Except as otherwise provided by this Division or Division 4 of Part 3 (Heritage conservation), development that—
(a) is allowed without development consent, or
(b) is allowed only with development consent, or
(c) is prohibited,
is specified in the land use matrix in subclause (6).
(2) The following symbols are used in the land use matrix in subclause (6)—
| | | | | | • | development that is allowed within the relevant zone without development consent. | | | | | | | C | development that is allowed within the relevant zone only with development consent. | | | | | | | 1 | development that is allowed within a precinct within the Recreation—Private zone only with development consent. | | | | | | | 2 | development that is allowed within the Katoomba Precinct VTC-KA02, Springwood Precinct VTC-SP01 and Winmalee Precinct VTC-WL01 in the Village—Town Centre zone only with development consent. | | | | | | | 3 | development that is allowed within the Katoomba Precinct VTC-KA01, Katoomba Precinct VTC-KA02 and Springwood Precinct VTC-SP01 in the Village—Town Centre zone only with development consent. | | | | | | | 4 | development that is allowed only with development consent, except where it is allowed without development consent by clause 36 (Bush fire hazard reduction). | | | | | | | 5 | development that is allowed within the relevant zone only with development consent, except where development is allowed without development consent by clause 126 (Special use). | | | | | | | 6 | development that is allowed within the relevant zone only with development consent, except on bush fire prone land where it is prohibited. | | | | | | | 7 | development that is allowed within the relevant zones only with development consent, except on land in Mount Victoria Precinct VNC–MV01—Village Neighbourhood Centre Precinct and Glenbrook Precinct VNC–GB01—Glenbrook Shops Precinct where it is prohibited. | | | | | | | | development that is prohibited. | | | | |
(3) The subdivision of land is allowed within any zone with development consent.
(3A) The demolition of a building or work may be carried out only with development consent.
Note—
If the demolition of a building or work is identified in an applicable environmental planning instrument, such as this plan or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, as exempt development, the Act enables it to be carried out without development consent.
(4) The clearing of vegetation is allowed within any zone only with development consent, except where otherwise allowed by clause 54 (Preservation of trees) or clause 54A (Bushland protection).
(5) Subject to subclauses (3) and (4) and clause 33 (Exempt and complying development), all development not identified in the land use matrix is prohibited.
(6) The following land use matrix applies for the purposes of this plan—
| Zone— | Village | Living | Employment | RTC | Recreation | Environment Protection | | Development for the purpose of— | TC | NC | T | H | G | C | BC | G | EN | | PR | OS | PR | OS | | accessible housing | C | | C | C | C | | | | | | 1 | | | | | advertising structures | C | C | C | C | C | C | C | C | C | | C | C | | | | amusement centres | C | | | | | | | | | | | | | | | animal establishments | | | | | | | | C | | | C | | | | | arts and crafts galleries | C | C | C | | | | | C | C | | C | | | | | bed and breakfast establishments | C | C | C | C | C | C | C | | | | | | | | | boarding houses | C | C | C | C | C | | | | | | | | | | | bulky goods showrooms | C | | | | | | | C | | | | | | | | bush regeneration | • | • | • | • | • | • | • | • | • | • | • | • | • | • | | bush fire hazard reduction | 4 | 4 | 4 | 4 | 4 | 4 | 4 | 4 | 4 | 4 | 4 | 4 | 4 | 4 | | camping sites | | | | | | | | | | | C | C | | | | car repair stations | | 7 | | | | | | C | | | | | | | | caravan parks | | | | | | | | | | | C | C | | | | caretakers’ dwellings | | | | | | | | C | C | | C | C | | | | child care centres | C | C | C | C | C | C | | C | C | | C | C | | | | clubs | C | | | | | | | C | C | | C | C | | | | cluster housing | | | | | | | C | | | | | | | | | commercial premises | C | C | | | | | | C | | | | | | | | community buildings | C | C | C | C | C | | | C | C | | C | C | | | | community centres | C | C | | C | | | | | | | C | | | | | dams | | | | | | | C | | | | C | C | | | | development ancillary to a dwelling house | C | C | C | C | C | C | C | | C | C | | | C | | | display gardens | C | C | C | C | C | C | C | | C | | C | C | | | | district supermarkets | 2 | | | | | | | | | | | | | | | domestic swimming pools | C | C | C | C | C | C | C | C | C | C | C | | | | | drive-in take-away food outlets | 3 | | | | | | | | | | | | | | | dual occupancies | C | | C | C | C | | | | C | | | | | | | dwelling houses | C | C | C | C | C | C | C | | C | C | | | | | | educational establishments | C | C | C | C | C | | | C | C | | C | | | | | exhibition homes | C | | C | C | C | C | C | | C | | | | | | | general stores | C | C | C | C | C | C | | C | C | | | | | | | granny flats | C | | C | C | C | C | C | | C | | | | | | | hazardous industries or hazardous storage establishments | | | | | | | | | | | | | | | | health care practices | C | C | C | C | C | C | | C | C | | | | | | | holiday lets | C | C | C | C | C | C | C | | | | | | | | | home businesses | • | • | • | • | • | • | • | • | • | • | • | | | | | home employment | C | C | C | C | | | | | C | | | | | | | home occupations | • | • | • | • | • | • | • | • | • | • | • | • | • | • | | hospitals | C | | | C | C | | | C | | | | | | | | hotels | C | | | | | | | | | | | | | | | industries | | | | | | | | C | | | | | | | | institutions | | | | | | | | | | | | | | | | integrated housing | C | C | C | C | C | C | C | | C | | | | | | | land management works | • | • | • | • | • | • | • | • | • | • | • | • | • | • | | light industries | | | | | | | | C | C | | | | | | | liquid fuel depots | | | | | | | | 6 | | | | | | | | medical centres | C | C | | C | | | | C | C | | | | | | | motor showrooms | | | | | | | | C | | | | | | | | multi-dwelling housing | C | | C | C | | | | | | | | | | | | nature-based recreation | | | | | | | | | | | C | C | C | C | | offensive industries or offensive storage establishments | | | | | | | | | | | | | | | | panel beating workshops | | | | | | | | C | | | | | | | | parking | C | C | C | C | C | C | C | C | C | C | C | C | | C | | parking facilities | C | C | | | | | | C | C | C | | | | | | permaculture | | | • | • | • | • | • | | | | • | C | | | | places of assembly | C | C | | C | | | | C | C | | C | | | | | places of worship | C | C | C | C | C | | | C | C | | C | C | | | | public buildings | C | C | C | C | C | | | C | C | | C | C | | | | public transport terminals | C | C | | | | | | | | C | | | | | | public utility undertakings | • | • | • | • | • | • | • | • | • | • | • | • | • | • | | recreation areas | C | C | C | | | | | C | C | | C | C | | | | recreation facilities | C | C | | | | | | C | C | | C | C | | | | refreshment rooms | C | C | C | C | | | | | | | C | C | | | | remediation of contaminated land | C | C | C | C | C | C | C | C | C | C | C | C | C | C | | retail plant nurseries | C | C | | | | | | C | C | | | | | | | roads | C | C | C | C | C | C | C | C | C | C | C | C | C | C | | road transport terminals | | | | | | | | C | | | | | | | | self-storage units | | | | | | | | C | | | | | | | | service stations | | | | | | | | 6 | | 6 | | | | | | sex establishments | | | | | | | | C | | | | | | | | shop-top housing | C | | | | | | | | | | | | | | | shops | C | C | | | | | | | | | | | | | | special uses | 5 | 5 | 5 | 5 | 5 | 5 | 5 | 5 | 5 | 5 | 5 | 5 | | 5 | | take-away food outlets | C | C | | | | | | | | | | | | | | telecommunications facilities | C | C | C | C | C | C | C | C | C | C | C | C | C | C | | tourist accommodation | C | C | C | | | | | | | | | | | | | transport depots | | | | | | | | C | | | | | | | | utility installations | • | • | • | • | • | • | • | • | • | • | • | • | • | • | | veterinary establishments | C | C | | | | | | C | C | | | | | | | visitor facilities | C | C | C | C | C | C | C | | | C | C | C | | C | | warehouses | | | | | | | | C | | | | | | | | waste processing facilities | | | | | | | | C | | | | | | |
Abbreviations relating to zone names—
| BC | Bushland Conservation | | C | Conservation | | EN | Enterprise | | G | General | | H | Housing | | NC | Neighbourhood Centre | | OS | Open Space | | PR | Private | | RTC | Regional Transport Corridor | | T | Tourist | | TC | Town Centre |
cl 32: Am 2009 (189), Sch 1 [1] [2]; 2019 (659), Sch 2.4[1] [2].
33 Exempt and complying development
(1) Notwithstanding clause 32 (Land use matrix), development of minimal environmental impact listed in Schedule 1 to Blue Mountains Development Control Plan No 33, as adopted by the Council on 24 August 1999, is exempt development, despite any other provision of this plan.
(2) Notwithstanding clause 32 (Land use matrix) and subject to this clause, development listed in Schedule 2 to Blue Mountains Development Control Plan No 33, as adopted by the Council on 24 August 1999, is complying development if—
(a) it is local development of a kind that can be carried out with consent on the land on which it is proposed, and
(b) it is not an existing use, as defined in section 106 of the Act.
(3) Development is exempt or complying development only if it complies with the development standards and other requirements applied to the development by Blue Mountains Development Control Plan No 33, as adopted by the Council on 24 August 1999.
(4) A complying development certificate issued for any complying development is to be subject to the conditions for the development specified in Blue Mountains Development Control Plan No 33, as in force when the certificate is issued.
34 Development near zone boundaries
(1) Notwithstanding clause 32 (Land use matrix) but subject to subclause (2), development that (in the absence of this clause) would be prohibited in a zone may be carried out with development consent within the maximum distance from the boundary between that zone and another zone, if it is allowed in the other zone either with or without development consent.
(2) Consent shall not be granted to development pursuant to this clause unless the consent authority is satisfied that carrying out the proposed development will—
(a) have the effect of extending development that is being or will be lawfully carried out in the zone in which it is allowed in the absence of this clause, and
(b) comply with the objectives of the zone in which it will be carried out.
(3) In this clause, the maximum distance means 20 metres or, if the otherwise prohibited development will be carried out within the Environmental Protection—Private or Environmental Protection—Open Space zone, 10 metres.
35 Temporary use of land
(1) Notwithstanding clause 32 (Land use matrix) but subject to subclauses (2)–(4), consent may be granted to the temporary use of any land or building for any purpose (including but not limited to an exhibition, concert, fair, sporting event, fete or market) provided the consent authority is satisfied that—
(a) the use will cease within a specified time, and
(b) suitable arrangements have been or will be made for the removal of any waste, or any temporary structures erected or works carried out in connection with the temporary use, and for the restoration of the land after the cessation of the temporary use, and
(c) the temporary use is reasonable having regard to the nature of the temporary use and the economic use of the land pending its development otherwise in accordance with this plan, and
(d) the temporary use will not unreasonably adversely affect residential amenity, and
(e) the temporary use would not be likely to unreasonably affect the economic viability of any village centre in the locality, and
(f) the objectives of the zone in which the land is located will not be compromised over the long term by the temporary use.
(2) Consent may be granted to the temporary use of any land or building for not more than 28 days, whether consecutive or non-consecutive, in any one year.
(3) Consent may be granted for a temporary use under this clause over a period of not more than 3 consecutive years, allowing the temporary use for not more than 28 days in each of those years.
(4) This clause does not apply where—
(a) the temporary use would be designated development, or
(b) the land proposed to be used for the temporary use is located in the Environmental Protection—Private zone or Environmental Protection—Open Space zone.
(5) Any requirement within this plan for the preparation of assessments, studies or plans may be waived where the consent authority is satisfied that the preparation of these assessments, studies or plans is unreasonable or unjustified having regard to the nature of the temporary use.
36 Bush fire hazard reduction
Development consent is not required for the doing of—
(a) emergency bush fire hazard reduction work, or
(b) managed bush fire hazard reduction work, or
(c) work that complies with a bush fire hazard reduction certificate issued in accordance with the Rural Fires Act 1997, or
(d) bush fire hazard reduction work that complies with any requirement for the establishment or maintenance of an asset protection zone approved by the consent authority.
37 Bush fire safety authority
Notwithstanding clause 32 (Land use matrix), consent shall not be granted for—
(a) the subdivision of bush fire prone land for residential purposes, or
(b) the development of bush fire prone land for a special fire protection purpose,
unless a bush fire safety authority required by the Rural Fires Act 1997 has been issued by the Commissioner of the NSW Rural Fire Service.
38 Development of land for certain additional purposes
(1) Notwithstanding clause 32 (Land use matrix) but subject to subclause (2), a person may with consent carry out development on land identified in Schedule 8 that is specified in that Schedule for the land, subject to such conditions as are so specified.
(2) Consent shall not be granted to development for those items numbered ALU01, ALU02 or ALU03 in Schedule 8, after the expiration of 1 year from the appointed day.
(3) Nothing in subclause (2) shall prevent consent from being granted to the carrying out of alterations or extensions to, or the rebuilding of, a building or place being used for a purpose for which consent has been granted in accordance with this clause.
39 Consolidation (CONS) requirement
(1) Notwithstanding clause 32 (Land use matrix), where a consolidation requirement is shown by the notation (CONS) for land shown edged by a heavy line on Map Panel A, development (other than an existing use or for the purpose of bush fire hazard reduction) is prohibited unless all adjoining lots with this notation, which are shown edged with a heavy line, have been consolidated into one lot.
(2) Consent may be granted to a subdivision of land to which subclause (1) applies only if the proposed subdivision is—
(a) a boundary adjustment where no additional lots are created, or
(b) for the purpose of providing land for a public purpose.
40 No subdivision (NS)
(1) Notwithstanding clause 32 (Land use matrix), where a no subdivision requirement is shown by the notation (NS) for land shown edged by a heavy line on Map Panel A, the subdivision of that land to create additional lots is prohibited.
(2) Consent may be granted to a subdivision of land to which subclause (1) applies only if the proposed subdivision is—
(a) a boundary adjustment where no additional lots are created, or
(b) for the purpose of providing land for a public purpose, or
(c) a strata subdivision.
40A Conversion of fire alarms
(1) This clause applies to a fire alarm system that can be monitored by Fire and Rescue NSW or by a private service provider.
(2) The following development may be carried out, but only with development consent—
(a) converting a fire alarm system from connection with the alarm monitoring system of Fire and Rescue NSW to connection with the alarm monitoring system of a private service provider,
(b) converting a fire alarm system from connection with the alarm monitoring system of a private service provider to connection with the alarm monitoring system of another private service provider,
(c) converting a fire alarm system from connection with the alarm monitoring system of a private service provider to connection with a different alarm monitoring system of the same private service provider.
(3) Development to which subclause (2) applies is complying development if it consists only of—
(a) internal alterations to a building, or
(b) internal alterations to a building together with the mounting of an antenna, and any support structure, on an external wall or roof of a building so as to occupy a space of not more than 450mm × 100mm × 100mm.
(4) A complying development certificate for any such complying development is subject to a condition that any building work may only be carried out between 7.00 am and 6.00 pm on Monday to Friday and between 7.00 am and 5.00 pm on Saturday, and must not be carried out on a Sunday or a public holiday.
(5) In this clause—
private service provider means a person or body that has entered into an agreement that is in force with Fire and Rescue NSW to monitor fire alarm systems.
cl 40A: Ins 2019 (659), Sch 2.4[3].
40B Standards that cannot be used to refuse consent—playing and performing music
(1) The consent authority must not refuse consent to development in relation to licensed premises on the following grounds—
(a) the playing or performance of music, including the following—
(i) the genre of music played or performed, or
(ii) whether the music played or performed is live or amplified, or
(iii) whether the music played or performed is original music, or
(iv) the number of musicians or live entertainment acts playing or performing, or
(v) the type of instruments played,
(b) whether dancing occurs,
(c) the presence or use of a dance floor or another area ordinarily used for dancing,
(d) the direction in which a stage for players or performers faces,
(e) the decoration to be used, including, for example, mirror balls, or lighting used by players or performers.
(2) The consent authority must not refuse consent to development in relation to licensed premises on the grounds of noise caused by the playing or performance of music, if the consent authority is satisfied the noise may be managed and minimised to an acceptable level.
(3) In this clause—
licensed premises has the same meaning as in the Liquor Act 2007.
cl 40B: Ins 2020 (724), Sch 3.
40C Flood planning
(1) The objectives of this clause are as follows—
(a) to minimise the flood risk to life and property associated with the use of land,
(b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change,
(c) to avoid adverse or cumulative impacts on flood behaviour and the environment,
(d) to enable the safe occupation and efficient evacuation of people in the event of a flood.
(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—
(a) is compatible with the flood function and behaviour on the land, and
(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and
(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and
(d) incorporates appropriate measures to manage risk to life in the event of a flood, and
(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.
(3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters—
(a) the impact of the development on projected changes to flood behaviour as a result of climate change,
(b) the intended design and scale of buildings resulting from the development,
(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,
(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.
(4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause.
(5) In this clause—
Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department’s website on 14 July 2021.
flood planning area has the same meaning as it has in the Flood Risk Management Manual.
Flood Risk Management Manual means the Flood Risk Management Manual, ISBN 978-1-923076-17-4, published by the NSW Government in June 2023.
cl 40C: Ins 2022 (629), Sch 2[2]. Am 2023 (609), Sch 2.3[2] [3].
40D Canal estate development prohibited
(1) Canal estate development is prohibited on land to which this Plan applies.
(2) In this clause—
canal estate development has the same meaning as in the standard instrument prescribed by the Standard Instrument (Local Environmental Plans) Order 2006.
cl 40D: Ins 2022 (629), Sch 2[4].
Part 3 Assessing the site and environmental context
41 General
The objectives of the site analysis provisions within this Part are—
(a) to require the impact of development on the natural and built environment to be taken into account as part of the site planning process, and
(b) to establish a sound basis for design or management responses to be incorporated into development proposals to minimise that impact.
42 Site analysis plan
(1) The consent authority may decline to grant consent to development, excluding development comprised of minor additions, unless it has considered a site analysis plan, which should be included as part of the statement of environmental effects.
(2) The site analysis plan must—
(a) include such information specified in clause 43 (Contents of site analysis plan) as is relevant, in the opinion of the consent authority, to enable the full consideration of the environmental impacts of the proposed development, and
(b) be accompanied by a written statement explaining how the design and location of the proposed development has had regard to the objectives in clause 41 and to the site analysis.
(3) The components of a site analysis plan may be supplemented by further assessments and plans, as specified elsewhere in this Part.
Note—
Assessments and plans required by clauses within this Part should include all details necessary to show that the development complies with the relevant objectives and provisions within this Part. Where a number of clauses apply and require a site analysis plan, detailed environmental assessments and other environmental studies, these requirements may be met by a single consolidated environmental study. This is to remove the need for repetition where multiple environmental constraints would otherwise result in a number of environmental studies being required.
43 Contents of site analysis plan
A site analysis plan is to include or be accompanied by supporting information, where appropriate, about the site and its surrounds in accordance with the following Table—
TABLE
| Contents of site analysis plan | | (1) | With respect to site characteristics—(a) the location, boundary dimensions and area of the subject site and the north point, and(b) contours of the subject site at an appropriate interval and the contours of adjoining allotments to the extent necessary to depict slope conditions that may affect the subject site, and(c) the movement of sun across the site, and(d) the prevailing wind direction and likely wind speeds across the site. | | (2) | With respect to flora and fauna—(a) the location and identity of any significant vegetation community on the site, including scientific and common names, and(b) the location and identity of any threatened species, populations or ecological communities on the site, including scientific and common names, and(c) the location and identity of any rare species of flora on the site, including scientific and common names, and(d) whether the site contains or forms part of a fauna corridor, and(e) the location and identity of all vegetation to be removed, including scientific and common names, and(f) the total area of vegetation to be removed in square metres, and(g) details of the qualifications and experience of the person who supplied the particulars required by this paragraph. | | (3) | With respect to other environmental characteristics—(a) the location of, and measures proposed to protect, vegetation to be retained, and(b) the location and extent of all existing and proposed water permeable areas, including lawns, and shrub/garden beds, and(c) the total area of the lot covered or proposed to be covered by water permeable surfaces in square metres and the percentage of the lot covered by water permeable surfaces, and(d) the location of all existing and proposed hard or impervious surfaces on the site, including areas covered by buildings, sealed driveways or paving, and(e) the total area of the lot covered or proposed to be covered by hard surfaces in square metres and the percentage of the lot that will be covered by hard surfaces when the proposed development has been carried out, and(f) the location of all slopes greater than 20 per cent and the direction of fall or drainage from those areas, and(g) the soil type, structure and characteristics of any part of the site that has slopes greater than 20 per cent on which development or clearing is proposed to be located, and(h) the location of any watercourse corridor on the site, or within 100 metres of the site with the potential to receive surface water run-off or sub-surface water from the site, and(i) the location of any significant natural features such as rock outcrops, rock ledges and cliffs. | | (4) | With respect to character—(a) the character of surrounding areas (best displayed with photographs of buildings on adjoining sites and adjacent streetscape), and(b) setbacks, height, use and location of buildings on adjoining land, and other uses, including any potential noise sources, private open space areas or windows which may overlook the site, and(c) any views to and from the land. | | (5) | With respect to heritage—(a) the location of any heritage item on the site, including its curtilage, and(b) a statement that the site falls within a heritage conservation area where applicable, and(c) the location of any archaeological sites on the land, and(d) the location of any Aboriginal object or Aboriginal place. | | (6) | With respect to bush fire—(a) a statement that the site is bush fire prone land, where applicable, and(b) for bush fire prone land, the location, extent and vegetation group of any bushland on or within 140 metres of the site, and(c) for bush fire prone land, the slope and aspect of the site and of any bush fire prone land within 100 metres of the site, which may determine the likely path of any bush fires, and(d) any features on or adjoining the site that may mitigate the impact of a high intensity bush fire on the proposed development, and(e) for development of bush fire prone land, a statement assessing the environmental impact of any proposed bush fire protection measures. | | (7) | With respect to other hazards, the identification of any present or past usages of the site that may represent a risk to community health or the environment with respect to site contamination or potential site contamination. | | (8) | With respect to services—(a) the position of any drainage services and easements, as they relate to the pattern of water movement across the site, and(b) the location of above ground or below ground services, including those for the provision of power supply, water supply, water storage and disposal of wastewater. | | (9) | With respect to carrying out the proposed development—(a) the location of any existing buildings or structures on the site and their use, and(b) the location of existing or proposed access to the site, including any pathways, tracks or driveways and the number and location of on-site car parking areas, and(c) for bush fire prone land, the existing and proposed road network, including the width of roads, and whether they are connector roads or cul-de-sacs, and(d) the location of any proposed “cut” or “fill” and details including retaining structures, proposed fill material, level of finished fill, extent of finished fill in relation to adjoining properties and the effect on adjoining properties, particularly in relation to water flow, and(e) any other buildings or structures proposed for the site. |
44 Environmental impact
(1) Impact on the National Park Consent shall not be granted to development proposed on any land adjacent to the Blue Mountains National Park, unless the consent authority—
(a) has considered the impact of the proposed development on the aesthetic, historical, natural, scenic and scientific attributes of the land within the National Park, and
(b) has considered any comments from the Department of Environment and Conservation in relation to the effect of the proposed development, and
(c) is satisfied that the development incorporates effective measures to avoid, remedy or mitigate any adverse environmental impact on land within the National Park.
(2) Subdivision Consent shall not be granted to the subdivision of land to create additional lots unless the development will incorporate effective measures, satisfactory to the consent authority, to ensure that the development, and any asset protection zones required to protect the land to be subdivided, will have no adverse environmental impact on any development excluded land.
(3) Development on lots created within the Living—Bushland Conservation zone Where a lot is created by the subdivision of land within the Living—Bushland Conservation zone in accordance with this plan, consent shall not be granted to any development (excluding a work for the purpose of providing public utility services) proposed to take place wholly or partly on development excluded land, unless the consent authority is satisfied, by means of a detailed environmental assessment, that the development, including any required asset protection zones, will have no adverse impact on the development excluded land concerned.
(4) Other development All buildings and works, and any asset protection zone, not subject to subclauses (2) or (3) should be designed and sited so as to have no adverse environmental impact on any of the following—
(a) any significant vegetation community,
(b) the habitat of any threatened species, populations or ecological communities,
(c) any rare species of flora,
(d) any fauna corridor,
(e) the hydrological aspect of the locality,
(f) any watercourse or wetland,
(g) any significant natural features, including rock outcrops, rock ledges and cliffs.
(5) Where an adverse environmental impact cannot be avoided for development to which subclause (4) applies, consent shall not be granted unless the consent authority is satisfied that the development—
(a) has been designed and sited so as to have the minimum possible adverse impact on the environmental attributes identified in subclause (4) (a)–(g), and
(b) incorporates effective measures to remedy or mitigate any adverse environmental impact, and
(c) offsets those environmental impacts through the restoration of any existing disturbed areas on the site.
(6) In determining whether an adverse environmental impact cannot be avoided in accordance with subclause (5), the consent authority shall—
(a) have regard to the purposes for which the land is intended to be used with reference to the zone objectives applying to the land, and
(b) be satisfied that no practicable alternative is available in terms of the design, type and site coverage of the proposed development (including any measures required to protect life and property from the threat of bush fire) and the suitability of the physical characteristics of the land for the proposed development.
(7) Impact of bush fire protection measures The provision of asset protection zones as referred to in subclauses (2), (3) and (4) shall balance the conservation of the natural environment with the protection of life and property from bush fire by being designed, sited or maintained so as to—
(a) not exceed the level of clearing and reduction of vegetation prescribed in the bush fire code, unless otherwise prescribed by the provisions of this plan, and
(b) minimise environmental disturbance by using the method of bush fire hazard reduction that is suited to the characteristics of the site, in accordance with the Council’s Better Living DCP, and
(c) not be located on any land that has contiguous areas of slope greater than 33 per cent, unless no other viable alternative is available, and
(d) retain, where practicable, any existing mature smooth-barked trees which contain faunal habitat hollows, and
(e) incorporate the planting of species that have bush fire resistant properties and are compatible with locally indigenous vegetation.
45 Protected Area—Slope Constraint Area
(1) Consent shall not be granted to development on any land within a Protected Area—Slope Constraint Area that has contiguous areas of slope greater than 20 per cent (protected land) unless the consent authority is satisfied, by means of a detailed environmental assessment, that the development complies with the objectives and other provisions within this clause.
(2) The objectives for a Protected Area—Slope Constraint Area are—
(a) to restrict development of land that has contiguous areas of slope greater than 20 per cent or physical characteristics that render the land inappropriate for development, and
(b) to ensure that development on land that has contiguous areas of slope greater than 20 per cent is designed and sited to minimise vegetation clearing and soil disturbance, and
(c) to encourage the retention, restoration and maintenance of disturbed native vegetation on steep land.
(3) Development, including the erection of buildings, carrying out of alterations to buildings, clearing of native vegetation, and the carrying out of works that disturb the soil or alter the natural drainage pattern, on land to which this clause applies, is to—
(a) retain and maintain all existing native vegetation outside the area immediately required for the development, and
(b) incorporate measures to regenerate native vegetation on all land with slopes greater than 20 per cent that has already been cleared and does not form part of the site of existing development or the proposed development, and
(c) not adversely impact on the rate, volume or quality of water leaving the site, and
(d) be undertaken only where an assessment, which may include the preparation of a geotechnical report, demonstrates that the soil characteristics and structural elements of the protected land are suitable for the proposed development, and
(e) be sited outside protected land unless no other practicable alternative is available.
(4) When considering whether development could be sited outside protected land in accordance with subclause (3) (e), the consent authority shall consider—
(a) the design, type and site coverage of the proposed development, and
(b) the physical characteristics of the area on which the development is proposed to be carried out, and
(c) the suitability of the land for the proposed development.
46 Protected Area—Vegetation Constraint Area
(1) Consent shall not be granted to development on any land within a Protected Area—Vegetation Constraint Area (protected land) unless the consent authority is satisfied, by means of a detailed environmental assessment, that the development complies with the objectives and other provisions within this clause.
(2) The objectives for a Protected Area—Vegetation Constraint Area are—
(a) to identify and require assessment of vegetation that is likely to be a significant vegetation community, and
(b) to protect significant vegetation communities and vegetation that is faunal habitat or part of a wildlife corridor, and
(c) to ensure development is designed, sited and managed to avoid or mitigate any adverse environmental impact on any significant vegetation community and the ecological buffer required to protect that significant vegetation community, and
(d) to encourage the restoration and maintenance of native vegetation, including vegetation that does not form part of a significant vegetation community.
(3) Development on any land within a Protected Area—Vegetation Constraint Area is to—
(a) incorporate effective measures to comply with clause 44 (Environmental impact) as it relates to the protection of a significant vegetation community, and
(b) provide an adequate ecological buffer to protect any significant vegetation community, and
(c) retain and maintain all existing native vegetation outside the area immediately required for the development, and
(d) incorporate measures to regenerate any disturbed native vegetation within the protected land, and
(e) in the case of protected land on which any significant vegetation community is located, be sited outside protected land unless no other practicable alternative is available.
(4) When considering whether development could be sited outside protected land in accordance with subclause (3) (e), the consent authority shall consider—
(a) the design, type and site cover of the proposed development, and
(b) the physical characteristics of the land on which the development is proposed to be carried out, and
(c) the suitability of the land for the proposed development.
47 Protected Area—Ecological Buffer Area
(1) Consent shall not be granted to development on any land within a Protected Area—Ecological Buffer Area (protected land) unless the consent authority is satisfied, by means of a detailed environmental assessment, that the development complies with the objectives and other provisions within this clause.
(2) The objectives for a Protected Area—Ecological Buffer Area are—
(a) to protect water quality and aquatic ecosystems in the Blue Mountains, and
(b) to protect watercourse corridors and significant vegetation communities, and
(c) to restrict development so that it does not occur, as far as practicable, within ecological buffers to watercourse corridors or significant vegetation communities, and
(d) to ensure development is designed, sited and managed to minimise impact on the ecological and hydrological functions of the buffer, and
(e) to encourage the restoration and maintenance of native vegetation and the ecological processes of land within and adjacent to watercourse corridors or significant vegetation communities.
(3) Development on any land within a Protected Area—Ecological Buffer Area is to—
(a) incorporate effective measures to manage any riparian vegetation within a watercourse corridor and any significant vegetation community, and
(b) be designed and sited to maintain connectivity of vegetation and minimise vegetation clearing, soil disturbance and alterations to the rate, volume or quality of surface and ground-water flows, and
(c) retain and maintain all existing native vegetation outside the area immediately required for the development, and
(d) incorporate measures to regenerate native vegetation for all disturbed areas within the protected land, and
(e) incorporate appropriate stormwater and erosion control measures to protect the protected land from surface water run-off or other disturbance, and
(f) be sited outside protected land unless no other practicable alternative is available.
(4) When considering whether development could be sited outside protected land in accordance with subclause (3) (f), the consent authority shall consider—
(a) the design, type and site cover of the proposed development, and
(b) the physical characteristics of the land on which the development is proposed to be carried out, and
(c) the suitability of the land for the proposed development.
48 Protected Area—Water Supply Catchment
(1) Consent shall not be granted to development which the Council has been required by an environmental planning instrument to refer to the Regulatory Authority (within the meaning of the Water NSW Act 2014) on any land within a Protected Area—Water Supply Catchment (protected land) unless the consent authority is satisfied that the development complies with the objectives and other provisions within this clause.
(2) The objectives for a Protected Area—Water Supply Catchment are—
(a) to protect and, where possible, improve water quality within that part of the Blue Mountains and the Hawkesbury-Nepean River catchment that is within Sydney’s drinking water catchments, and
(b) to restrict development that will adversely impact on the natural systems that are essential for maintaining and improving water quality, and
(c) to restrict development in areas that cannot be connected to reticulated sewerage, and
(d) to ensure development is designed and sited to minimise the impact of vegetation clearing and soil disturbance, which could detrimentally alter the quality or quantity of the natural surface or sub-surface water movement, and
(e) to encourage the restoration and maintenance of areas of disturbed native vegetation.
(3) Development on any land within a Protected Area—Water Supply Catchment is to—
(a) have a neutral or beneficial effect on the water quality of rivers, streams and groundwater in the hydrological catchments, including during periods of wet weather, and
(b) incorporate water quality management practices that are sustainable over the long term.
(4) The consent authority shall not consent to any development on protected land that requires the disposal of wastewater unless—
(a) it is to be connected to a reticulated sewerage system, or
(b) where a reticulated sewerage system is not available, and in the case only of a dwelling house to be erected on a lot that existed on the appointed day, the dwelling house is to be served by a wastewater pump out system.
cl 48: Am 2014 No 74, Sch 3.1 [1]; 2021 (716), Sch 1.4[1].
49 Protected Area—Escarpment Area
(1) Consent shall not be granted to development on any land within a Protected Area—Escarpment Area (protected land) that involves the clearing of native vegetation unless the consent authority is satisfied, by means of an assessment of the landscape and environmental impact of the proposed development, that the development complies with the objectives and other provisions within this clause.
(2) The objectives for a Protected Area—Escarpment Area are—
(a) to preserve and enhance the visual, cultural and ecological values of the escarpment systems within the City of Blue Mountains, and
(b) to restrict development, including buildings, alterations and vegetation clearing, so as to minimise adverse impact on the perception of escarpments as significant natural features, and
(c) to limit the proportion of hard surfaces in close proximity to escarpment systems, and
(d) to ensure that the design and siting of development minimises environmental impact, and
(e) to encourage the retention, restoration and maintenance of areas of disturbed native vegetation.
(3) Development, including the clearing of native vegetation, on any land within a Protected Area—Escarpment Area is to—
(a) not adversely impact on the ecological or scenic values of the escarpment system, and
(b) retain and maintain all existing native vegetation outside the area immediately required for the development, and
(c) incorporate measures to regenerate native vegetation within the escarpment system in those areas which are already cleared and do not form part of the site of any existing development or the proposed development, and
(d) be designed and sited to respond sympathetically to the landform in which it is proposed to be situated, and
(e) not protrude above the existing vegetation canopy of the immediate locality, and
(f) not protrude above the height of adjacent buildings, and
(g) not visually disrupt the skyline by protruding above the ridgeline within or behind the site or above adjacent buildings, and
(h) incorporate unobtrusive and non-reflective materials and exterior surfaces with colours that help blend structures into the natural environment, and
(i) incorporate measures to minimise reflection of sunlight from glazed surfaces.
50 Protected Area—Riverine Scenic Quality Corridor
(1) Consent shall not be granted to development on any land within a Protected Area—Riverine Scenic Quality Corridor (protected land) that involves the clearing of native vegetation unless the consent authority is satisfied, by means of an assessment of the landscape and environmental impact of the proposed development, that the development complies with the objectives and other provisions within this clause.
(2) The objectives for a Protected Area—Riverine Scenic Quality Corridor are—
(a) to preserve and enhance the visual, cultural and ecological values of the protected land, and
(b) to restrict development, including buildings, alterations and vegetation clearing, so as to minimise the impact on the perception of the protected land as an area of scenic significance beyond the region or of regional riverine scenic significance, and
(c) to ensure that the design and siting of development is consistent with the landscape character as described in the Scenic Quality Study, and
(d) to encourage the restoration and maintenance of areas of disturbed native vegetation.
(3) Development, including the clearing of native vegetation, on any land within a Protected Area—Riverine Scenic Quality Corridor is to—
(a) retain and maintain all existing native vegetation outside the area immediately required for the development, and
(b) incorporate measures to regenerate native vegetation within those areas which are already cleared and do not form part of the site of any existing development or the proposed development, and
(c) have appropriate siting, building form, orientation and scale that does not compromise the visual integrity of the escarpment to the west of the Nepean River, in terms of its regional prominence and the undisturbed nature of its appearance by—
(i) protruding above the existing vegetation canopy of the immediate locality or the height of adjacent buildings, or
(ii) visually disrupting the skyline by protruding above the ridgeline within or behind the site or above adjacent buildings, and
(d) incorporate unobtrusive and non-reflective materials and exterior surfaces with colours that help blend structures into the natural environment, and
(e) incorporate measures to minimise reflection of sunlight from glazed surfaces.
(4) Development within a Protected Area—Riverine Scenic Quality Corridor which is shown on Map Panel B as having “Significance Beyond the Region” is to ensure that the landscape character of the development is consistent with “Landscape Unit No 2.1.2 Fairlight Gorge-Norton’s Basin to Mt Portal” of the Scenic Quality Study.
(5) Development within a Protected Area—Riverine Scenic Quality Corridor which is shown on Map Panel B as having “Regional Significance” is to ensure that the landscape character of the development is consistent with “Landscape Unit No 3.2.3 Penrith Weir to Yarramundi Weir” of the Scenic Quality Study.
51 Watercourses
(1) Land that is within a watercourse corridor, as defined by this plan, is taken to be within a Protected Area—Ecological Buffer Area.
(2) Consent shall not be granted to development of land that is within a watercourse corridor unless the consent authority is satisfied, by means of a detailed environmental assessment, that the development complies with the Protected Area—Ecological Buffer Area objectives and the other provisions within clause 47.
(3) Where land is within a watercourse corridor and is not shown as within a Protected Area—Ecological Buffer Area on Map Panel B, a detailed environmental assessment prepared in accordance with subclause (2) is to recommend a buffer width, including details of—
(a) the basis for the buffer width and the influence of the slope of land on the width of the buffer, and
(b) the ability of the buffer to adequately protect the watercourse, and
(c) the qualifications and experience of the person who recommended the buffer width.
52 Significant vegetation communities and rare species of flora
(1) Where development may have an impact on a significant vegetation community or rare species of flora, either by the alteration of growth conditions or removal of that vegetation, consent shall not be granted to the development unless the consent authority is satisfied, by means of a detailed environmental assessment, that the development complies with relevant requirements of clause 44 (Environmental impact).
(2) The detailed environmental assessment shall include a full description of the proposed development, including the nature, extent, location, timing and layout and, to the fullest extent reasonably practicable, the following information—
(a) a full assessment of the likely effect of the development on the condition, extent and long term viability of the significant vegetation community or rare species of flora, and
(b) an assessment showing the impact of the development on any habitat or wildlife corridor, and
(c) a description of the way the development will respond to the significant vegetation community or rare species of flora, and
(d) a description of any feasible alternatives to the development that are likely to be of lesser effect and the reasons justifying the carrying out of the development in the manner proposed, having regard to biophysical, economic and social considerations and the principles of ecologically sustainable development, and
(e) a full description and justification of the measures proposed to mitigate any adverse effect of the development on the species and populations or ecological communities, including a compilation (in a single section of the statement) of those measures.
53 Retention and management of vegetation
(1) Before granting consent to development that would involve the removal of vegetation, the consent authority must have regard to the following priorities—
(a) retaining vegetation, in relation to location, species type or physical characteristics, that does not pose a threat to life or property in the event of bush fire,
(b) limiting impacts on threatened, endangered, vulnerable or a locally significant plant species,
(c) retaining vegetation within watercourses,
(d) retaining vegetation that stabilises soils or that absorbs run-off from accumulation points on site,
(e) retaining vegetation that contributes to wildlife corridors or is habitat for native fauna,
(f) retaining vegetation that contributes to the streetscape character of the locality.
(2) Consent shall not be granted to development of any land unless the consent authority has considered the need to re-vegetate disturbed areas on the land.
(3) Before granting consent to development, the consent authority must take into account that vegetation retained on the site of development is to be protected from activities that may reduce the safe useful life expectancy (SULE) of that vegetation, including—
(a) severing of the critical root zone or the woody/structural root system, as may be caused by construction of a retaining wall, laying of foundations or similar, and
(b) provision of hard or impervious surfaces, including driveways, that limit areas of infiltration, and
(c) compaction of soil over critical root zones by construction or use of heavy machinery, and
(d) an increase in water logging arising from stormwater management or other alteration to the existing drainage regime, and
(e) nutrient overloading arising from disturbance to the drainage regime, and
(f) changes to the natural soil level.
(4) When granting consent to development, the consent authority is to ensure that all vegetation to be retained on the site will be protected during the construction process by provision of temporary fencing or other barriers that are located to prevent direct or indirect damage to the vegetation including—
(a) damage to the tree trunks, or
(b) destruction of understorey vegetation by machinery, or
(c) compaction of soil over critical root zones for vegetation, or
(d) alterations to the amount or quality of water directed onto the vegetation, or
(e) stockpiling of materials over critical root zones.
54 Preservation of trees
(1) Notwithstanding clause 32 (Land use matrix), development consent is not required if a person cuts down, tops, lops, prunes, removes, injures or wilfully destroys any tree in accordance with—
(a) a written permission (permit) granted by Council, which may be given subject to such conditions as the Council considers necessary, or
(b) an exception specified in subclause (2), or
(c) the requirements for pruning in subclauses (4) and (5), or
(d) the requirements for transplanting in subclause (6).
(2) Exceptions Subject to subclause (3), development consent or a permit referred to in subclause (1) (a) is not required in relation to—
(a) any tree, if documented evidence can be produced that is satisfactory to the Council to prove that—
(i) the tree was dead and was not a likely habitat tree specified in an order made under subclause (7), or
(ii) the tree posed an imminent danger to property or life, or
(iii) taking the action concerned with respect to the tree was reasonably necessary to protect human life, buildings or other property from imminent danger from a bush fire burning in the vicinity of the land on which the tree was situated, or
(b) the removal of a tree where that removal is essential for emergency access or emergency works authorised by the Council, the State Emergency Service or any public authority, or
(c) the removal of trees in association with the construction or use of a building or work for which development consent has been granted, including the ongoing maintenance of fuel load limits within identified and approved asset protection zones, but only in accordance with the terms and conditions of that consent, or
(d) any tree with a height less than 4 metres and with a foliage crown spread of less than 4 metres, but only if the tree is not native vegetation within bushland, or
(e) trees of any of the following species, but only if documented evidence can be produced that is satisfactory to the Council to prove that the individual specimens concerned are less than 10.0 metres in height—
(i) Salix spp. (all Willow species), or
(ii) Populus spp. (all Poplar species), or
(f) a Pinus Radiata, but only if the tree is less than 10.0 metres in height and is not located on land—
(i) within the Living—Conservation zone, or
(ii) to which Part 1 (Mount Victoria), Part 6 (Wentworth Falls), Part 7 (Lawson), Part 8 (Hazelbrook) or Part 9 (Springwood) of Schedule 1 (Locality management within the Villages) applies, or
(g) a plant referred to in clause 55 (Weed management), except for a plant that is a known sterile cultivated variety of these plants or a plant referred to in paragraph (e) or (f), or
(h) the removal or trimming of any trees in accordance with Part 2 of the Electricity Supply (General) Regulation 2001, or
(i) the removal or trimming of any trees in accordance with sections 88, 107, 138 and 139 of the Roads Act 1993, or
(j) the removal or clearing of any trees in conjunction with works approved under Part 5 of the Act, or
(k) the removal of trees in accordance with an order issued by the Council under the provisions of the Act or the Local Government Act 1993.
(3) Heritage items, heritage conservation areas, significant trees and approved landscaping Nothing in subclause (2) (d)–(k) removes the requirement for development consent or written permission to cut down, top, lop, prune, remove, injure or wilfully destroy any tree that is—
(a) a heritage item or part of a heritage item, or
(b) within a heritage conservation area, or
(c) listed on Council’s Significant Tree Register (which is available for inspection at the office of the Council), or
(d) part of landscape planting required by a development consent.
(4) Pruning Nothing in this clause requires development consent or permission of the Council for the following—
(a) pruning of a hedge by no more than 20 per cent of its height or width in any one year, so that the overall height is not reduced below 1.5 metres,
(b) the seasonal pruning of fruit trees for the purpose of maintaining fruit production, but this exemption does not apply to Acmena spp. or Syzygium spp. (Lilly pilly), Elaeocarpus spp. (Blueberry Ash), Ficus coronata (Sandpaper Fig) or F. rubiginosa (Rusty or Port Jackson Fig),
(c) “deadwooding”, being the removal of dead wood from a tree, if the branches removed are not branches with hollows on a likely habitat tree specified in an order made under subclause (7),
(d) selective pruning, being only pruning to remove branches back to the nearest branch collar or junction to clear a roof, where trees directly overhang the roof of a dwelling, garage or commercial building, and only if the owner of the land where the centre of the tree originated or where the majority of the trunk of the tree is growing, is in agreement,
(e) to remove any species of parasitic mistletoe or parasitic plant from any part of a tree to ameliorate the effects on the tree from such a parasite.
(5) This clause does not allow pruning of a tree unless it is carried out in accordance with Australian Standard AS 4373—1996, Pruning of amenity trees.
(6) Transplanting The following may be transplanted without development consent or the permission of the Council—
(a) specimens that have originated in and have grown continuously in a container which is not permanently fixed to a structure,
(b) a tree that has remained continuously confined within a container, but not a tree in a planter box where the box is part of a building,
(c) a field-grown tree propagated as part of a commercial horticultural or agricultural enterprise for the purposes of harvesting and selling it as an advanced specimen for relocation and re-establishment.
(7) The Council may, by its order, specify particular trees, or trees of a species or other class, to be likely habitat trees for the purposes of this clause.
54A Bushland protection
(1) Notwithstanding clause 32 (Land use matrix), development consent is not required for vegetation clearing if a person clears, cuts down, tops, lops, prunes, removes, injures or wilfully destroys any vegetation (not trees) in accordance with—
(a) a written permit issued by the Council, which may be given subject to such conditions as the Council considers necessary, or
(b) an exception specified in subclause (4).
(2) Application for permits An application for a permit referred to in subclause (1) (a) shall be accompanied by—
(a) the written consent of the owner of the land, and
(b) the information specified in clause 43 (Contents of site analysis plan) or elsewhere in this Part that is relevant, in the opinion of Council, to consider the environmental impact of the proposed vegetation clearing, and
(c) a method statement detailing the intended approach to undertaking the proposed clearing work, and
(d) details of any proposed new plantings (species, mature heights and spread), together with establishment and maintenance details of those new plantings, with the level of detail being sufficient to allow the Council to assess the adequacy of vegetation retention and future landscape proposals.
(3) Considerations before issuing a permit Before issuing a permit referred to in subclause (1) (a), the Council shall consider the following matters—
(a) the zone objectives within Part 2, Division 2 (Zone objectives) that apply to the land,
(b) the assessment requirements and provisions within this Part that are relevant to the proposed vegetation clearing, including the need to control runoff and erosion during and after clearing,
(c) whether a vegetation management plan, prepared by a suitably qualified person and detailing procedures and specifications necessary to address any issues of concern, should be submitted for approval prior to commencement of clearing work,
(d) the effect of any vegetation clearing on the viability and quality of the bushland and, in particular, the likelihood of the spread of weeds or of undesirable and exotic species in the bushland.
(4) Exceptions Development consent or a written permission is not required in relation to—
(a) the removal or clearing of any vegetation where that removal or clearing is essential for emergency access or emergency works authorised by the Council, the State Emergency Service or any public authority (but only where the amount of vegetation removed is minimised as far as is practicable), or
(b) the removal or clearing of vegetation in association with the construction or use of a building or work for which development consent has been granted, including the removal of vegetation and ongoing maintenance of fuel load limits within identified and approved asset protection zones, but only in accordance with the terms and conditions of that consent, or
(c) a plant referred to in clause 55 (Weed management), except for a plant that is a known sterile cultivated variety of these plants or a plant referred to in clause 54 (2) (e) or (f), or
(d) the removal or trimming of any vegetation in accordance with Part 2 of the Electricity Supply (General) Regulation 2001, or
(e) the removal or trimming of any vegetation in accordance with sections 88, 107, 138 and 139 of the Roads Act 1993, or
(f) the removal or clearing of any vegetation in conjunction with works approved under Part 5 of the Act, or
(g) the removal or clearing of any vegetation, but not trees, in any zone to which clause 14 (Locality management within the villages) applies or within the Living—General zone or Living Conservation zone, or
(h) the removal or clearing of any vegetation, but not trees, for maintenance of a garden, within its existing boundaries, or
(i) the removal or clearing of any vegetation, but not trees, for maintenance of existing cleared areas or areas for which consent or a permit has been granted authorising clearing, or
(j) the removal or clearing of native vegetation in bushland for the purposes of creating gardens where—
(i) the work does not involve the removal, injury or destruction of trees, and
(ii) the area to be cleared is within 35 metres of a dwelling for which consent or a building approval has been granted on the same allotment as the proposed clearing, and
(iii) the area to be cleared is not greater than 500m2, and
(iv) the area to be cleared is not development excluded land, and
(v) the area to be cleared is not within the Protected Area—Escarpment Area or Protected Area—Riverine Scenic Quality Corridor, and
(vi) the removal of native vegetation is not contrary to any condition of any consent or any plan approved by the Council, or
(k) the removal or clearing of vegetation in accordance with an order issued by the Council under the provisions of the Act or the Local Government Act 1993, or
(l) the removal or clearing of any vegetation, in accordance with the Surveying Act 2002 or any regulation made under that Act, between properties for the purpose of enabling a survey to be carried out along that boundary by a registered surveyor where no alternative survey method is feasible, or
(m) the removal or clearing of vegetation where that removal is consistent with a management plan approved by the Council for landscaping or gardening works.
cl 54A: Am 2005 No 98, Sch 2.5.
55 Weed management
(1) Where a plant that is declared under the Noxious Weeds Act 1993 to be a noxious weed for the City is identified on a proposed development site, when granting consent for development of the site, the consent authority may require—
(a) the removal of the noxious weed present in a manner satisfactory to the consent authority, or
(b) management of the weed in accordance with a weed management plan, that includes measures satisfactory to the consent authority to control the noxious weeds within the boundaries of that site as prescribed by the Noxious Weeds Act 1993.
(2) The consent authority may decline to grant consent to development that proposes the use for landscape works in the Living—Bushland Conservation zone of any species included in the schedule entitled “Weeds of the Blue Mountains” within the Better Living DCP.
(3) Consent shall not be granted to development that proposes the use for landscape works undertaken by or on behalf of the Council of any species included in the schedule entitled “Weeds of the Blue Mountains” within the Better Living DCP.
(4) Should any noxious or environmental weeds listed in the schedule entitled “Weeds of the Blue Mountains” within the Better Living DCP be located in an asset protection zone that the consent authority requires to be established, these weeds shall be removed and disposed of so as to ensure that regeneration of such weeds does not occur.
(5) Consent shall not be granted to development that proposes the use of any noxious weeds, as prescribed by the Noxious Weeds Act 1993.
56 Site disturbance and erosion control
(1) Consent shall not be granted to development unless the consent authority is satisfied that the development is designed and sited to—
(a) reflect the capability of the site, taking into consideration the natural characteristics of the land, and
(b) minimise the extent and time of site disturbance, and
(c) prevent sediment, building materials, waste or other pollutants from leaving the site and entering adjoining land, street gutters, drains or watercourses.
(2) As far as is practicable and in response to site characteristics, the consent authority is to ensure that new development is to be located in areas which have been previously cleared.
(3) Consent shall not be granted to development, excluding—
(a) minor additions, and
(b) development that disturbs less than 50 square metres of the site,
unless the consent authority is satisfied that the development will be carried out in accordance with an erosion and sediment control plan.
(4) An erosion and sediment control plan prepared to comply with subclause (3) shall provide details of how the development addresses all aspects of site disturbance, erosion and sediment control and site rehabilitation, including—
(a) the location and extent of all existing and proposed areas where the natural ground cover is or will be disturbed, and
(b) the location of natural areas requiring specific planning or management responses, including watercourses, seasonally wet areas, areas prone to ponding or waterlogging and unstable slopes, and
(c) the nature and extent of all earthworks, including the location, extent and depth of any proposed cut or fill, and
(d) the location of all potential sources of sediment on the site, including (where known) any stock piles of soil or building materials or waste, and
(e) the location and nature of any proposed stormwater or erosion and sediment control measures, and
(f) site rehabilitation proposals, including final contours.
(5) Where, in the opinion of the consent authority, the nature, scale or location of proposed development warrants a greater level of detail to facilitate the full consideration of the proposed development, an erosion and sediment control plan shall include, in addition to the matters referred to in subclause (4)—
(a) a maintenance strategy for erosion and sedimentation control works including the nomination of responsibility for the follow-up maintenance required on any permanent measures, and
(b) a chart outlining the construction sequence over the duration of the works including measures for erosion and sediment control and their maintenance, and
(c) a description of the effect of any permanent site controls on the sub-catchments or catchments.
(6) Where development proposes to incorporate temporary stormwater and sediment control basins to manage stormwater run-off, the consent authority shall require that the design and management of the basins—
(a) minimise the potential for establishment of native fauna populations in the basin, and
(b) have no significant impact on a watercourse or vegetation community, and
(c) either—
(i) include procedures to investigate the existence of native fauna within the basin and to relocate native fauna to a suitable habitat prior to removal or drainage of the basin, or
(ii) incorporate the basin as a permanent feature of the completed development where fauna are unable to be relocated.
57 Stormwater management
(1) Consent shall not be granted to development that will alter the flow of surface or ground water, unless the consent authority is satisfied that the development incorporates effective measures to manage stormwater run-off for the life of the development and to ensure—
(a) surface water run-off will be diverted away from all disturbed areas on the site, and
(b) the quality of surface or ground-water leaving the site will not be reduced in the short or long term, and
(c) the development will minimise or eliminate point source and diffuse source pollution by the use of best management practices, and
(d) the development will not adversely alter the quantity and flow characteristics of stormwater leaving the site, and
(e) the development is designed and sited to minimise stormwater run-off from impervious surfaces leaving the site, and
(f) the development optimises on-site retention and re-use of stormwater run-off, through measures such as dual plumbing and infiltration devices.
(2) Consent shall not be granted to development (excluding minor additions) in the Living—Bushland Conservation zone or a Protected Area—Water Supply Catchment that increases the existing area of impervious or hard surfaces by more than 100 square metres or where the total area of impervious or hard surfaces of existing and proposed development exceeds 300 square metres unless the consent authority is satisfied that the development incorporates—
(a) effective measures for on-site retention of water with a collection capacity of not less than 4,000 litres per 100 square metres of hard or impervious surface (including paving) and for the re-use of water drained from those surfaces, or
(b) other measures for the retention of stormwater run-off and its appropriate re-use that have been designed by a suitably qualified person.
(3) Consent shall not be granted for development—
(a) involving the construction of three or more dwellings on any allotment, or
(b) for commercial or industrial purposes, with potential for discharge of pollutants such as fuels, heavy metals, oils, solvents and the like, or
(c) on an allotment having impervious surfaces in excess of 40 per cent of the allotment area,
unless the consent authority is satisfied that the development will be carried out in accordance with a stormwater management plan which identifies the measures that are to be incorporated to mitigate impacts of stormwater run-off, to maximise the use of water permeable surfaces and to promote infiltration of water on-site.
(4) The stormwater management plan is to maximise the use of water permeable surfaces on the site and be designed to promote infiltration of run-off water on-site.
58 Modification of land form
(1) Development is to minimise “cut” and “fill” as far as practicable and is to contain “cut” and “fill” within the development footprint where conditions allow.
(2) Consent shall not be granted to development in the Living—Bushland Conservation zone—
(a) that requires the alteration of the natural ground level by greater than 1 metre cut or 1 metre depth of fill, except where wholly contained within or retained by the walls of a building, or
(b) where the natural ground level of the area of proposed development has contiguous areas of slope greater than 10 per cent, that uses slab on ground, other than site responsive split-level slab, construction methods.
59 Bush rock removal
(1) Consent shall not be granted to development requiring the removal of bush rock unless the consent authority is satisfied that—
(a) the removal of bush rock is a necessary part of carrying out the development on a site, and
(b) there is no viable option available, after consideration of the suitability and type of proposed development and the physical characteristics of the site and adjoining land, to retain the bush rock on the site.
(2) When considering the retention of bush rock on a site, the consent authority shall consider the priority for retention to be as follows—
(a) bush rock that is known or likely to be habitat for any species, population or ecological community listed under the Threatened Species Conservation Act 1995,
(b) bush rock that is within a wildlife corridor or is habitat for any native fauna,
(c) bush rock salvaged from excavation works carried out as part of a development for which consent has been granted for landscape works,
(d) bush rock that will contribute to the streetscape character of the locality.
60 Consideration of character and landscape
(1) Consent shall not be granted to development involving a building unless the consent authority has considered the extent to which the development is consistent with, or enhances, the established character and streetscape of the surrounding area with regard to—
(a) the scale and massing of any proposed building, and
(b) the use of building materials, including colours and finishes, and
(c) the building form, including roof pitch and proportions of windows, and
(d) the location of buildings on an allotment and the relationship of the building to the public street.
(2) For the purpose of providing for an open streetscape appearance for residential development, the following restrictions on solid fences and walls apply—
(a) a fence or wall located along any street frontage of a lot and any part of a side fence or wall that is located within the front building setback shall not exceed a height of 1 metre, except where a higher fence or wall is required, in the opinion of the consent authority—
(i) as a noise attenuation measure and other measures are not available, or
(ii) along one street frontage, in the case only of a lot with a frontage to more than one street, to adequately screen private open space,
(b) noise attenuation fences or walls are to be designed to minimise any adverse impact on the character and streetscape of the surrounding area as viewed from a road or the Regional Transport Corridor.
(3) Consent shall not be granted to development for the purpose of accessible housing, a boarding house, a dual occupancy, multi-dwelling housing or tourist accommodation unless the development is designed to—
(a) minimise the visible bulk of any development and to integrate the development with the existing character of the street, and
(b) incorporate measures to minimise any potential impacts on the amenity of adjoining residents, and
(c) ensure that the building form and design are articulated and varied, to provide a fine-grained residential built form and an individual dwelling identity and street address, and
(d) provide active street frontages and direct views from living areas, where possible, to the public street, and
(e) promote a landscape setting for residential development by establishing vegetation as an integral part of the development, and
(f) encourage pedestrian and vehicular permeability and, where possible, to provide for linkages with the existing street systems, and
(g) develop new streets and access lanes to reflect the local street layout of the surrounding area, if applicable (eg grid street layout).
(4) Consent shall not be granted to development within view of a public place, including a road, railway, or open space, unless the consent authority has considered the probable aesthetic appearance of the proposed development or use of the proposed development when viewed from that public place.
61 Protected Area—Period Housing Area
(1) Consent shall not be granted for development within a Protected Area—Period Housing Area unless the consent authority is satisfied, by means of a detailed assessment of character, that the development complies with the Protected Area objectives within this clause.
(2) Where Division 4 of Part 3 (Heritage conservation) applies to the land, the provisions of that Division prevail over the provisions of this Division to the extent of any inconsistency.
(3) The Protected Area objectives for a Protected Area—Period Housing Area are—
(a) to retain and enhance the traditional streetscape and character of older residential areas incorporating Victorian, Edwardian, Federation, Inter-War or Art Deco building styles that are an important contributor to the town character of the Blue Mountains, and
(b) to preserve housing stock that pre-dates 1946 from demolition where these buildings are an important contributor to the traditional streetscape character, and
(c) to ensure that new development complements the traditional streetscape character of the surrounding Period Housing Area and, in particular—
(i) building appearance and the use of materials and colours shall incorporate common architectural elements of a building style in the surrounding Period Housing Area, and
(ii) building scale is to be consistent with the predominant scale of buildings in the surrounding Period Housing Area in regard to height and massing of buildings, and
(iii) location of a building on the allotment and the relationship of a building to the public street shall complement the traditional building pattern in the Period Housing Area, and
(iv) roof form and pitch shall reflect housing styles that pre-date 1946 in the surrounding Period Housing Area and contribute to the overall retention of the traditional streetscape, and
(v) front fencing is to be comparable in construction, height and materials to existing fencing in the Period Housing Area or styles of fencing from the relevant architectural period, and
(d) to ensure that the impacts of development on the character of the surrounding area, as determined by a detailed assessment, is a primary consideration.
62 Character assessment for the Period Housing Area
Before granting consent for development within a Protected Area—Period Housing Area, the consent authority shall consider a detailed assessment of character complying with clause 61 (Protected Area—Period Housing Area), which includes the following information as part of the site analysis plan and supporting information—
(a) a photo assessment (or illustrations, models or the like) of any existing buildings, natural features and vegetation on the site,
(b) a photo assessment (or illustrations, models or the like) of the context of the site, including buildings and vegetation on adjoining and adjacent sites that contribute to the character of the locality,
(c) an explanation of how the proposed development is consistent with and enhances the established character of the surrounding residential area in regard to—
(i) scale and massing of proposed buildings, and
(ii) external finishes of proposed buildings, and
(iii) landscaping and retention of vegetation, and
(iv) building form, including roof pitch and size and location of windows, and
(v) location of any buildings on the subject and adjoining allotments.
63 Demolition control within the Period Housing Area
(1) The consent authority shall not consent to demolition of a building within a Protected Area—Period Housing Area unless it is satisfied that—
(a) the building is not representative of the traditional older building fabric of the area generally, where the building appears to have been built post 1946, or
(b) the demolition is of part of an existing building and the substantive appearance of the existing building, when viewed from a public street, will be retained, or
(c) documentary evidence demonstrates that the existing building, or the part of the building proposed for demolition, is structurally unsound and not economically repairable, or
(d) the building is minor or ancillary to the main building on the site (for example, because it is a carport or garden shed) and its demolition will not adversely affect the character of the main building or its setting when viewed from a public street.
(2) For the purpose of determining whether a building is not economically repairable, the consent authority must consider documentary evidence prepared by a suitably qualified person, demonstrating that the cost of repair would exceed the value of the repaired building.
64 Control of infill development within the Period Housing Area
(1) The consent authority shall not consent to development, including the erection of a building or major alterations or additions to a building, in a Protected Area—Period Housing Area, unless—
(a) any existing building representative of the traditional older building fabric of the Period Housing Area, located on the land to be developed, is retained as the most prominent structure on the land when the land is viewed from the street, and
(b) the existing traditional streetscape is substantially retained or enhanced.
(2) New buildings or alterations to an existing building that affect the appearance of the building when viewed from a public street in a Protected Area—Period Housing Area shall incorporate the following, where applicable—
(a) the front wall of any building is to be aligned parallel to the front boundary of the allotment and the location of front doors and entry areas is to address the public street. Where existing facades on adjoining buildings create a relatively continuous line this pattern should be repeated,
(b) architectural elements such as roof gables and pitch, bay windows, verandah roof form and verandah posts/railings, eaves and gutters are to be consistent with a traditional architectural style represented in the surrounding Protected Area—Period Housing Area,
(c) building materials are to reflect the traditional building materials used in the surrounding Protected Area—Period Housing Area or are to be materials with a similar appearance to traditional building materials. This may involve the use of a single building material (such as weatherboard) or a combination of two building materials (such as stucco and brick) where these are predominantly used in the surrounding area,
(d) major extensions to existing older buildings that are visually prominent from a public street shall use building design elements complementary to the main building,
(e) designs for new buildings shall reflect elements from a single traditional architectural period,
(f) colour schemes of surrounding traditional housing with the same architectural style as the development and which is located within the Protected Area—Period Housing Area should be identified as part of an application and are to form the basis of the colour scheme used for the proposed development. In general, walls and roofs should be richer shades of muted colours. Corner sites may utilise stronger colours to reinforce prominent landmark buildings,
(g) garages and carports are to be located, where possible, behind the rear building line and if located along the street frontage are to be a minor visual element. The design of garages and carports should repeat the themes (ie roof pitch, form) and materials from the main building on the site,
(h) materials for roofs are to be either corrugated iron (or material of similar appearance) or may be roofing tiles where these are consistent with the roofing materials predominantly used in the surrounding Protected Area—Period Housing Area.
65 Landscaping for residential development
(1) Consent shall not be granted for residential development unless the consent authority has considered a concept landscape plan that demonstrates to the satisfaction of the consent authority that—
(a) the design of buildings complements the physical characteristics of the site and minimises the removal of mature vegetation and site disturbance, and
(b) the location of buildings maximises the retention of mature vegetation and maintains significant mature landscape features that contribute to the streetscape, and
(c) mature vegetation that shall be removed for the proposed development will be replaced with appropriate vegetation to provide screening from adjoining buildings and to maintain the contribution to the streetscape of the vegetation on the site, and
(d) the development incorporates proposed planting that, upon maturity, will provide screening of the development from public streets and adjoining dwellings, and
(e) the scale and massing of buildings ensure that built forms are secondary to the landscape setting in residential areas where these settings are the dominant character element in the surrounding area.
(2) A concept landscape plan prepared to comply with subclause (1) shall include the following information—
(a) the location and extent of existing vegetation to be retained including trees, hedges, large shrubs, shrub beds and any areas of natural vegetation,
(b) an indicative planting plan showing the location and size of each tree and large shrub to be planted and the areas to be planted with low shrubs and ground covers,
(c) the proposed extent and type (native or exotic) of planting that is to be provided to replace any vegetation that is proposed to be removed.
66 Detailed landscape plan for certain residential development
(1) Consent shall not be granted for development for the purpose of accessible housing, a boarding house, a dual occupancy, multi-dwelling housing or tourist accommodation unless the consent authority has considered a detailed landscape plan.
(2) A detailed landscape plan prepared to comply with subclause (1) shall include on that plan at least the following information—
(a) the location, size and species of existing vegetation to be affected by the development, including trees, hedges, large shrubs, shrub beds and any areas of natural vegetation,
(b) replacement planting for any vegetation which is proposed to be removed,
(c) a planting plan showing the location and size within 10 years of each tree and large shrub,
(d) a table indicating common name, botanic name, ultimate height and width and planting size (pot size and height) of each tree and large shrub proposed if relying on planting of trees or large shrubs for privacy,
(e) a planting plan showing the location and indicative planting for mid-low shrubs and ground covers.
(3) A detailed landscape plan prepared to comply with subclause (1) shall demonstrate to the satisfaction of the consent authority that the development incorporates planting that will promote a garden setting and enhance the streetscape of the surrounding area.
67 Private open space and gardens for certain residential development
(1) Consent shall not be granted to development for the purpose of accessible housing or multi-dwelling housing unless the development complies with this clause.
(2) For each single storey dwelling or dwelling located, wholly or in part, on the ground floor of a multi-storey building, provision is to be made for a minimum area of private open space, based on the number of bedrooms in the dwelling, as specified in the following Table—
| Number of bedrooms in housing or dwelling | Minimum area of private open space | | One (including bedsits) | 25m2 | | Two | 40m2 | | Three or more | 50m2 |
(3) Private open space provided to comply with subclause (2) is to include at least one area that—
(a) has reasonable access to a living area of the dwelling, and
(b) is on a compatible level with a living area of the dwelling, and
(c) has a slope of less than 10 per cent, and
(d) is designed and located to allow appropriate access to sunlight and minimise overshadowing from adjoining buildings, and
(e) has acoustic treatments, where necessary and practicable, to minimise disturbance to residents of adjoining dwellings, and
(f) complies with the minimum area and minimum width, based on the number of bedrooms in the dwelling, as specified in the following Table—
| Number of bedrooms | Minimum area | Minimum width | | One (including bedsits) | 15m2 | 3m | | Two | 20m2 | 3.5m | | Three or more | 25m2 | 4m |
(4) In the case of a dwelling not subject to subclause (2), provision is to be made for a usable private balcony or deck attached to the dwelling that—
(a) has a minimum area of 6 square metres, and
(b) has a minimum length of 1.8 metres, and
(c) is accessible from a living area of the dwelling.
(5) Common landscaped areas are to have a garden structure and standard of presentation at least comparable with adjacent private gardens or public parks.
Division 4 Heritage conservation
68 Consideration of heritage conservation
Consent shall not be granted to development—
(a) of a heritage item, or
(b) within a heritage conservation area, or
(c) of an archaeological site, or
(d) that is likely to have an impact on an Aboriginal object or Aboriginal place, or
(e) within the curtilage of a heritage item or an archaeological site,
unless the consent authority is satisfied that the development complies with the relevant heritage conservation objectives and the relevant provisions within this Division.
69 Heritage conservation objectives
The heritage conservation objectives are as follows—
(a) To conserve the environmental heritage of the Blue Mountains.
(b) To conserve the heritage significance of existing significant fabric, relics, archaeological sites, settings and views associated with heritage items and heritage conservation areas.
(c) To ensure that Aboriginal objects and Aboriginal places are conserved, whether or not those sites are identified by an environmental planning instrument.
(d) To ensure that the heritage conservation areas throughout the City retain their heritage significance.
(e) To encourage public involvement in the conservation of environmental heritage.
70 Protection of heritage items and heritage conservation areas
(1) Notwithstanding clause 32 (Land use matrix), the following development may be carried out only with consent—
(a) demolishing or moving a heritage item or a building, work, relic, tree or place within a heritage conservation area,
(b) moving the whole or part of a heritage item,
(c) altering a heritage item or a building, work, relic, tree or place within a heritage conservation area by making structural or non-structural changes to its exterior, including to its detail, fabric, finish or appearance,
(d) altering a heritage item by making structural changes to its interior,
(e) disturbing or excavating an Aboriginal place while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in an Aboriginal object being discovered, exposed, moved, damaged or destroyed,
(f) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,
(g) erecting a building on, or subdividing, land upon which a heritage item is located or which is within a heritage conservation area.
(2) Development consent is not required under this clause if, in the opinion of the consent authority—
(a) the proposed development—
(i) is of a minor nature or consists of maintenance of the item or of a building, work, archaeological site, tree or place within a heritage conservation area, and
(ii) would not adversely affect the heritage significance of the heritage item or heritage conservation area, and
(b) the proponent has notified the consent authority in writing of the proposed work and the consent authority advises the applicant in writing before any work is carried out that it is satisfied that the proposed development will comply with this clause and that development consent is not required by this Division.
(3) Development consent is not required by this clause for—
(a) the creation of a new grave or monument, or
(b) an excavation or disturbance of land for the purpose of carrying out conservation or repair of monuments or grave markers,
in a cemetery or burial ground where there will be no disturbance to human remains, relics in the form of grave goods or to an Aboriginal place.
71 Determination of development applications for heritage
(1) When determining a development application required by clause 70 (Protection of heritage items and heritage conservation areas), the consent authority shall assess the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.
(2) An assessment carried out to comply with subclause (1) is to include (but is not limited to) an assessment of the following—
(a) the heritage significance of the item as part of the environmental heritage of the City of Blue Mountains,
(b) the impact that the proposed development will have on the heritage significance of the item and its setting, including any landscape or horticultural features,
(c) the measures proposed to conserve the heritage significance of the item and its setting,
(d) whether any archaeological site or potential archaeological site would be adversely affected by the proposed development,
(e) the extent, if any, to which the carrying out of the proposed development would affect the form of an historic subdivision pattern,
(f) any submission received in relation to the proposed development in response to the notification or advertising of the application within the period set by the notice or advertisement.
(3) In relation to a heritage conservation area, an assessment carried out in accordance with subclause (1) is to include (but is not limited to) an assessment of the following—
(a) the heritage significance of the heritage conservation area and the contribution which any building, work, relic, tree or place affected by the proposed development makes to this heritage significance,
(b) the impact that the proposed development would have on the heritage significance of the heritage conservation area,
(c) the compatibility of the proposed development with any nearby original building and the character of the heritage conservation area, including consideration (where relevant) of—
(i) the size, form, scale, orientation, setbacks, materials and detailing of the proposed development, and
(ii) the pitch and form of the roof, and
(iii) the style, size, proportion and positions of the openings for windows or doors, and
(iv) the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building,
(d) the measures proposed to conserve the significance of the heritage conservation area and its setting,
(e) whether any identified landscape or horticultural features would be affected by the proposed development,
(f) whether any archaeological site or potential archaeological site would be affected by the proposed development,
(g) the extent, if any, to which the carrying out of the development in accordance with the consent would affect an historic subdivision pattern,
(h) any submission received in relation to the proposed development in response to the notification or advertising of the application within the period set by the notice or advertisement.
(4) When determining whether or not to grant a development consent in accordance with subclause (1)—
(a) consent shall not be granted until the consent authority has considered a heritage impact statement which includes an assessment of the matters raised in subclause (2), in the case of proposed development that would affect a heritage item, and
(b) consent shall not be granted until the consent authority has considered a heritage impact statement which includes an assessment of the matters raised in subclause (3), in the case of proposed development that would affect a heritage conservation area, and
(c) where the consent authority requires that a conservation management plan should also be prepared in respect of a heritage item, the consent authority may refuse to grant consent unless a conservation management plan has been submitted and considered.
Note—
The website of the Heritage Branch of the Department of Planning has publications that provide guidance on assessing the impact of proposed development on the heritage significance of items (for example, Statements of Heritage Impact).
cl 71: Am 2008 (571), Sch 3.17 [1].
72, 73 (Repealed)
74 Development affecting places or sites of known or potential Aboriginal heritage significance
Consent shall not be granted to development that is likely to have an impact on an Aboriginal place, or a potential Aboriginal place, or that will be carried out on an Aboriginal object, unless the consent authority has—
(a) considered a heritage impact statement explaining how the proposed development would affect the conservation of any Aboriginal object known or reasonably likely to be located at a site, or any Aboriginal place, which has been prepared in accordance with any guidelines for the time being notified to it by the Director-General of the Department of Environment and Conservation, and
(b) except where the proposed development is integrated development, notified the local Aboriginal communities (in such a way as it thinks appropriate) of its intention to do so and taken into consideration any comments received in response within 21 days after the relevant notice is sent.
cl 74: Am 2008 (571), Sch 3.17 [3] [4].
75 Development affecting known or potential archaeological sites or relics of non-Aboriginal heritage significance
(1) Consent may be granted to the carrying out of development on an archaeological site or potential archaeological site or site of a relic that has non-Aboriginal heritage significance (whether or not it is, or has the potential to be, also an Aboriginal place or Aboriginal object) only if the consent authority has—
(a) considered a heritage impact statement explaining how the proposed development will affect the conservation of the site and any relic known or reasonably likely to be located at the site, and
(b) satisfied itself that any necessary excavation permit required by the Heritage Act 1977 has been granted.
(2) This clause does not apply if the proposed development—
(a) does not involve disturbance of below-ground deposits and the consent authority is of the opinion that the heritage significance of any above-ground relics would not be adversely affected by the proposed development, or
(b) is integrated development.
cl 75: Am 2008 (571), Sch 3.17 [5].
76 Development in the curtilage of a heritage item or in a heritage conservation area
(1) Before granting consent to development in the curtilage of a heritage item or in a heritage conservation area that includes a heritage item, including a work which—
(a) may affect the setting of the heritage item, including by obscuring a significant view to or from the item or by overshadowing, or
(b) may undermine or otherwise cause physical damage to the heritage item, or
(c) will otherwise have an adverse impact on the heritage significance of the heritage item,
the consent authority shall assess the impact of the proposed development on the heritage significance of the heritage item and on the heritage conservation area, if it is within such an area.
(2) Consent shall not be granted to development in the curtilage of a heritage item or in the vicinity of a heritage conservation area unless the consent authority has considered a heritage impact statement, where, in the opinion of the consent authority, that development could adversely impact on the heritage significance or visual setting of that item or area.
(3) The heritage impact statement, where required, shall include details of the size, shape and scale of, the setbacks for, and the materials to be used in, any proposed buildings or works and details of any modification that would reduce the impact of the proposed development on the significance of the heritage item.
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Division 1 Administration
1 Name of plan
This plan is Blue Mountains Local Environmental Plan 2005.
2 Land to which plan applies
(1) This plan applies to all land within the City, except land—
(a) to which Blue Mountains Local Environmental Plan No 4 applies, being land shown on the Map by distinctive colouring as “Area subject to LEP 4”, or
(b) to which Blue Mountains Local Environmental Plan 1991 applies, being land—
(i) shown on the Map by distinctive colouring as “Area subject to LEP 1991”, or
(ii) not shown on the Map.
(2) Clause 3, for the purpose only of delineating the land to which this plan and those plans apply, also applies to the land to which those plans apply.
(3) Land shown as “Deferred Matter” on the Map by a distinctive hatching is not subject to this plan (being land that is excluded from the application of this plan under section 68 (5) or 70 (4) of the Act).
3 Relationship to other environmental planning instruments
(1) This plan amends Blue Mountains Local Environmental Plan No 4 by replacing clause 3 with the following clause—
(2) This plan amends Blue Mountains Local Environmental Plan 1991 by replacing clause 2 with the following clause—
(3), (4) (Repealed)
cl 3: Am 2007 (641), Sch 5.4 [1]; 2019 (659), Sch 1.4[1].
Imposes heritage protections: demolition, works affecting heritage items, archaeological sites and Aboriginal places require heritage impact statements and/ or conservation management plans (Division 4, Part 3; clauses 68–77, 71, 74–76).
Embeds bush‑fire rules: bush‑fire assessments, asset protection zones, construction standards and referral/approval processes tied to Planning for Bush Fire Protection and Rural Fires Act (Division 5, clauses 78–86).
Regulates subdivision and minimum lot sizes, development density and lot configuration, including special rules for cluster housing and exceptions for particular developments (Part 4, clauses 90–93, 92).
Controls infrastructure and service requirements for development (water, sewer, wastewater disposal, stormwater) including studies and referrals where on‑site systems are proposed (clauses 91, 94–97; Protected Area—Water Supply Catchment clause 48).
Includes a formal mechanism allowing limited departures from development standards in defined circumstances (Exceptions to development standards clause 9A).
Adds targeted local permissions and prohibitions (for example: conversion of fire alarms requiring consent and limited complying‑development conditions cl 40A; protections for live music at licensed premises cl 40B; flood planning clause 40C; canal‑estate prohibition cl 40D; special additional land uses in Schedule 8).
Lists extensive schedules: precinct controls (Schedule 1), living zone rules (Schedule 2), employment and recreation zones (Schedules 3–4), significant vegetation descriptions (Schedule 5), heritage items and conservation areas (Schedule 6), operational land classification (Schedule 7), and approved site‑specific alternative uses (Schedule 8).
Who this affects
Landowners and developers inside the Blue Mountains City: they must check zoning, precinct rules, protected area overlays and the land‑use matrix (clause 32) before proposing works. Many proposals will trigger studies, reports and conditions.
Local businesses and prospective businesses: the land‑use matrix determines where particular commercial activities can locate; precinct rules set building envelopes and public‑frontage expectations in town centres (Schedule 1).
Owners of heritage items and those in heritage conservation areas: special controls apply to demolition, alterations and curtilage (clauses 68–76 and Schedule 6).
Residents of bush‑fire prone or flood‑prone land: specific design, construction and access standards apply and some development is prohibited unless additional approvals are obtained (Division 5, clauses 78–86; flood planning cl 40C).
Council and statutory referral agencies (e.g. Water NSW, Rural Fire Service, Roads authority): the Plan sets referral triggers and consultation responsibilities (clause 48; clause 37; references throughout).
Why it matters (official purpose and how that plays out in practice)
Officially the Plan aims to provide a comprehensive, place‑specific development framework for the “City within a World Heritage National Park” and to promote ecologically sustainable development (aim clause 10; principles clause 11; objectives clause 12).
Mechanically, that aim is implemented by tightly mapping where development can occur, by imposing protected‑area assessments and by embedding precinct character and heritage conservation as determinative criteria for consent. Those rules steer where houses, multi‑unit developments, shops, industry and tourism facilities can be located, how large they can be, what design features they must have, and what environmental studies must accompany an application (examples: land‑use matrix cl 32; site analysis cl 42–43; Protected Area clauses 45–51; precinct building envelopes in Schedule 1).
Practical trade‑offs, incentives and implementation considerations (what the instrument does to behaviour and costs)
Who pays and who decides: developers and landowners pay for required studies (site analysis cl 42–43; heritage impact statement cl 71; water/geotechnical reports cl 96–97; erosion plans cl 56; traffic and landscape plans in various clauses). Council is the decision‑maker (cl 5) and routinely exercises discretion (“to the satisfaction of the consent authority” appears throughout).
Compliance burden and predictability: the Plan imposes numerous bespoke requirements and cross‑references to external technical standards (Planning for Bush Fire Protection; BASIX and others). That reduces regulatory risk for some sensitive outcomes (heritage, bush fire, water) but raises compliance cost and introduces discretionary outcomes that can be unpredictable for applicants (see cl 42, 44, 71, 78–86).
Effect on land use, supply and prices: minimum lot sizes and strict protected‑area rules (cl 90; Protected Area clauses 45–51) restrict developable land supply in environmental‑sensitive zones; that can raise costs of development and housing in constrained areas, while concentrating development potential into selected precincts where higher floor‑space ratios are permitted (see precincts in Schedule 1 and density rules in Schedule 2–3).
Local business and competition effects: the land‑use matrix (cl 32) and precinct rules (Schedule 1) channel retail, tourist and bulky goods uses to particular locations (e.g. district retail precincts KA02). That concentrates customer footfall but also limits where new entrants can locate; the Plan also contains special‑use and public‑authority carve‑outs (cl 126, cl 134).
Heritage and conservation incentives: the Plan authorises conservation incentives, allowing the consent authority to permit uses or standard contraventions where retention depends on that (cl 77). That creates an explicit trade‑off: limited regulatory flexibility in exchange for conservation works (cl 77(1)–(2)).
Risk of “savings” and grandfathering complexity: several savings/transitional provisions treat applications lodged before certain State policies as to be decided under prior rules (cl 6(4)–(5); cl 9B). Applicants and councils must track multiple policy layers.
Concentrated benefits versus diffuse costs: conservation and stringent environmental protections produce concentrated benefits for amenity and biodiversity, while costs (higher build costs, study fees, reduced developable area) fall mainly on individual landowners/developers. Acquisition mechanisms (clauses 130–131) transfer some decision‑costs to Council when owners request acquisition.
Bureaucratic discretion and litigation risk: many determinations rest on Council satisfaction and on subjective assessments (e.g. “is consistent, to the satisfaction of the consent authority”), which increases scope for contested decisions and appeals. Keeping records of assessments is required in some places (cl 9A(4)).
Targeted modernisations and constraints: recent insertions show the Plan has been used to address contemporary risks — e.g. flood planning clause 40C (clause introduced 2022), exceptions to development standards (cl 9A), live‑music non‑refusal rules (cl 40B), prohibition of canal estates (cl 40D). These make the Plan responsive to new policy priorities but also add more conditionality.
Key sections to look at quickly: clause 2 (land to which Plan applies); clause 5 (consent authority); clause 7–8 (map and zones); clause 32 (land‑use matrix); Part 3 (clauses 41–59 environmental/site assessment); clauses 68–77 (heritage); clauses 78–86 (bush fire); clause 90 (subdivision minima); clauses 94–97 (services/water); clause 9A (exceptions to standards); schedules 1–8 (precinct rules, heritage lists, vegetation).
3 Land to which this plan applies
This plan applies to certain land within the City of Blue Mountains, being that land shown on the Map, within the meaning of Blue Mountains Local Environmental Plan 2005, by distinctive colouring as “Area subject to LEP 4”.
2 Land to which this plan applies
This plan applies to certain land within the City of Blue Mountains, being—
(a) that land shown on the Map, within the meaning of Blue Mountains Local Environmental Plan 2005, by distinctive colouring as “Area subject to LEP 1991”, or
(b) that land not shown on the Map within the meaning of Blue Mountains Local Environmental Plan 2005.
4 Regulatory instruments
(1) For the purpose of enabling development to be carried out in accordance with this plan (as in force when the development is carried out) or in accordance with a consent granted under the Act, any agreement, covenant or similar instrument imposing a restriction as to the erection or use of buildings or as to the development of land for certain purposes, shall not apply to any such development.
(2) Nothing in subclause (1) affects the rights or interests of the Council or any other public authority under any registered agreement.
(3) Nothing in subclause (1) affects a covenant required by the consent authority to be imposed.
(4) In accordance with section 28 (3) of the Act, before the making of this plan the Governor approved of subclauses (1), (2) and (3).
5 Consent authority for this plan
Blue Mountains City Council is the consent authority for the purposes of this plan, subject to the Act.
6 Definitions and interpretation
(1) A term defined in the Dictionary at the end of this plan has the same meaning when used in this plan.
(2) In this plan—
(a) a reference to a building or place used for a purpose includes a reference to a building or place intended to be used for that purpose, and
(b) a reference to a map is a reference to a map held within the offices of the Council, and
(c) a reference to the Council’s Better Living DCP is a reference to Part D (Standards for Development) of the Better Living—Development Control Plan approved by the Council on 8 March 2005.
(3) Explanatory notes to this plan, diagrams and captions to diagrams, and the list of contents, are not part of this plan.
(4) Savings and transitional provision Local environmental plans (including Blue Mountains Local Environmental Plan No 4) as in force immediately before the commencement of this plan, apply to a development application that was made but had not been finally determined before that commencement as if this plan had been exhibited but had not been made.
(5) If a development application has been made before the commencement of State Environmental Planning Policy Amendment (Planning for Bush Fire Protection) 2020 in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if that Policy had not commenced.
cl 6: Am 2020 (69), Sch 1.2[1].
7 Map supporting the plan
The land to which this plan applies is shown on the Map, with each sheet of the Map illustrating a part of the land and divided into three panels as follows—
(a) “Map Panel A: Zones, Precincts and Provisions” shows the zone or zones, any precincts and any map-designated provisions applying to that part of the land, and
(b) “Map Panel B: Protected Areas” shows any protected area or areas applying to that part of the land, and
(c) “Map Panel C: Heritage Conservation and Special Use” shows land that is subject to the heritage conservation provisions of this plan and land that is subject to the special use provisions of this plan.
8 Zones, precincts, protected areas and other map designations
(1) Land is within a zone specified in subclause (2) if it is shown on Map Panel A by distinctive colouring as being within that zone.
(2) This plan uses the following zones—
(a) Village—Town Centre,
(b) Village—Neighbourhood Centre,
(c) Village—Tourist,
(d) Village—Housing,
(e) Living—General,
(f) Living—Conservation,
(g) Living—Bushland Conservation,
(h) Employment—General,
(i) Employment—Enterprise,
(j) Regional Transport Corridor,
(k) Recreation—Private,
(l) Recreation—Open Space,
(m) Environmental Protection—Private,
(n) Environmental Protection—Open Space.
(3) Land is within a precinct if it is shown on Map Panel A by distinctive edging and annotation as being within that precinct.
(4) Land is subject to the map-designated provision specified in subclause (5) if it is shown on Map Panel A by distinctive hatching, edging or annotation as being subject to that provision.
(5) This plan uses the following map-designated provisions—
(a) Accessible Housing Area,
(b) Acquisition Requirement,
(c) Consolidation (CONS) Requirement,
(d) No Subdivision (NS),
(e) Proposed Road Closure.
(6) Land is within a protected area specified in subclause (7) if it is shown on Map Panel B by distinctive colouring, hatching or edging as being within that protected area.
(7) This plan uses the following protected areas—
(a) Slope Constraint Area,
(b) Vegetation Constraint Area,
(c) Ecological Buffer Area,
(d) Escarpment Area,
(e) Water Supply Catchment,
(f) Riverine Scenic Quality Corridor,
(g) Period Housing Area.
(8) Map Panel C identifies land that is a heritage item, a heritage item of State significance or within a heritage conservation area by distinctive edging, hatching or colouring.
(9) Land is subject to a special use designated in subclause (10) if it is shown on Map Panel C by distinctive colouring as being subject to that special use.
(10) This plan uses the following special use designations—
(a) cemetery,
(b) defence,
(c) depot,
(d) educational establishment,
(e) emergency services,
(f) hospital or health centre,
(g) parking facility,
(h) public building or facility,
(i) waste management facility.
9 Considerations before development consent
Before granting consent to the carrying out of any development on land to which this plan applies, the consent authority is to be satisfied that the development—
(a) is consistent with the aim of this plan and the principles and practices of ecologically sustainable development, and
(b) complies with the principal objectives of the plan that are relevant to the development, and
(c) complies with the locality management provisions within Part 2 that apply to the land, and
(d) complies with the assessment requirements and provisions within Part 3 that are relevant to the development, and
(e) complies with the development provisions within Part 4 that are relevant to the development.
9A Exceptions to development standards
(1) The objectives of this clause are as follows—
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant for development consent has demonstrated that—
(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and
(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.
Note—
The Environmental Planning and Assessment Regulation 2021 requires the development application to be accompanied by a document setting out the grounds on which the applicant seeks to demonstrate the matters in paragraphs (a) and (b).
(4) The consent authority must keep a record of its assessment carried out under subclause (3).
(5) (Repealed)
(6) Development consent must not be granted under this clause for a subdivision of land in the Environmental Protection—Private zone, Environmental Protection—Open Space zone or Living—Bushland Conservation zone if—
(a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or
(b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.
(7) (Repealed)
(8) This clause does not allow development consent to be granted for development that would contravene any of the following—
(a) a development standard for complying development,
(b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated,
(c) clause 90(9) (which relates to the area of a development space within the Living—Bushland Conservation zone),
(d) the provisions of Schedule 1 that relate to “site coverage” or “development density” and apply to development of land within the Village—Housing zone.
cl 9A: Ins 2019 (659), Sch 1.4[2]. Am 2023 (524), Sch 1.1[1].
9B Savings provisions relating to development applications
(1) A development application made, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Exceptions to Development Standards) 2023 must be determined as if that policy had not commenced.
(2) A development application made, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Flood Planning) 2023 must be determined as if that policy had not commenced.
cl 9B: Ins 2023 (524), Sch 1.1[3]. Am 2023 (609), Sch 2.3[1].
Division 2 Planning principles
10 Aim of the plan
The aim of this plan is to provide a comprehensive and explicit framework for the development of land within the City, as the “City within a World Heritage National Park”, in a manner that is consistent with and promotes the principles and practices of ecologically sustainable development.
11 Ecologically sustainable development
(1) In this plan, ecologically sustainable development means development that improves the quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends.
(2) This plan acknowledges the following principles and practices of ecologically sustainable development—
(a) Integration—the effective integration of environmental, social and economic considerations in decision-making.
(b) Community involvement—recognition that sustainability cannot be achieved, nor significant progress made toward it, without the support and involvement of the community.
(c) Precautionary behaviour—where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by—
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(ii) an assessment of the risk weighted consequences of various options, with particular consideration given to cumulative impacts and ensuring that previous environmental damage is not compounded.
(d) Equity within and between generations—fairness and equal access to opportunities both in our lifetimes,
This is an opening excerpt, not the complete document.