Australia, July 18 -- New South Wales Land and Environment Court issued text of the following judgement on June 17:

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Northern Beaches Council (the Council) of DA2024/1016 (the Development Application) for excavation and construction of a tunnel and lift shaft between the existing dwelling house and existing boat shed, and associated alterations to accommodate the lift shaft and tunnel (the Proposed Development) on land legally described as Lot 61 in DP 13620 and Lot 1 in DP 456145 and known as 995 Barrenjoey Road, Palm Beach, NSW, 2108 (the Site).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site and at Court.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council's contentions. This decision involved Council approving an application to amend the Applicant's plans pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the amended Proposed Development with conditions at Annexure A.

4. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. It is not my role to consider the merits of the agreed decision of the parties to the grant of development consent. If there is no jurisdictional barrier, pursuant to s 34(3)(a) of the LEC Act I must make the orders agreed by the parties. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council's Statement of Facts and Contentions.

Satisfaction as to Jurisdiction

5. Regarding jurisdiction and taking into account the parties' advice in the Statement, I am satisfied in regard to the following relevant matters.

6. The DA was made by Artazan Property Group Pty Ltd (APG) on 1 August 2024 with the consent of the owner of the Site.

Bushfire Prone Land

Section 4.14(1) of the EPA Act provides that development consent cannot be granted on bushfire prone land unless the consent authority:

(a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or

(b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.

8. The Site is identified as Bushfire Prone Land on the relevant Bush Fire Prone Land Map under s 10.3(2) of the EPA Act. The Site is mapped as "Vegetation Buffer" and constrained by "Vegetation Category 1".

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197621e59d58e7c069eeb58b)

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