John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning and Ors

John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning and Ors - [1999] NSWLEC 213 - NSWLEC 1999 case summary — Zoe

[4]

The environment is complex and often highly constrained. The environmental values and sensitivities to development arise from the high landscape values of the often unique setting; the fragile nature of the soils, steeply sloping sites and poor accessibility; the sensitivity of many of the valued vegetation units to sedimentation and weed infestation and changes in nutrients and water regime; the sensitivity of, and desired standards for the receiving waters within the National Park, and the dispersed nature of the source of many of the impacts arising from existing development; the high to extreme bushfire hazard, and an historic subdivision and land ownership pattern which has created a highly dispersed ridgeline settlement pattern with a very long boundary with the National Park. The National Park and other crown acquisitions have attempted to address some of the more discrete and major conflicts caused by early subdivision within these sensitive ecosystems. Nevertheless, many private allotments remain, and the requirements within the instrument must be sufficiently flexible to be relevant to a wide range of site conditions. Whilst the applicant submits that such statement does not satisfy the requirements of reg 6(2)(f), there is no substance to such assertion. The information provided by council describes the known environment relating to the land. The applicant, apart from its allegation of deficiency, has not pointed to any specific details which should have been provided. The details provided are adequate when consideration is given to the nature of the zoned land. II) Consultation with other authorities and councils 15. As a second ground of challenge the applicant says that the draft plan was not submitted in accordance with s 64 of the Act because it was not accompanied by a statement specifying the names of the public authorities, bodies and other persons that council was required to consult pursuant to s 62 of the Act. Section 62 provides:- In the preparation of an environmental study or a draft local environmental plan, the council shall consult with - (a) such public authorities or bodies (including authorities of the Commonwealth or other States) as, in its opinion, will or may be affected by that draft local environmental plan (b) where the draft local environmental plan applies to land adjoining a boundary between the council's area and another area - the council of that other area; and (c) such other persons as the council determines.

[34]

(a) The Density Control Provision shown on the Map specifies the maximum number of lots per hectare into which land may be subdivided with the consent of the Council. (b) The Council may consent to subdivision of any land covered by a Density Control Provision shown on the Map only if the total number of lots (other than lots for a public purpose) existing after the subdivision will not exceed the product of the development intensity area of the original lot, in hectares, multiplied by the maximum number of lots per hectare specified in the Density Control Provision in respect of the original lot, rounded down to the nearest whole number. (c) The Council may consent to subdivision of any land that is zoned Bushland Conservation or Residential Bushland Conservation only if each new lot proposed to be created (other than lots for a public purpose and lots created as part of integrated housing development), and intended to be the site of a dwelling house, includes land with a minimum area of 720 square metres, no part of which area is development excluded land, and which is so configured as to be capable of being the site of a dwelling house and of accommodating development ordinarily incidental and ancillary to a dwelling house. (d) The Council may consent to subdivision of any land for the purpose of integrated housing development only if it is satisfied that: (i) all development for the purpose of any dwelling house proposed to be erected as part of the integrated housing development; and (ii) all development ordinarily incidental and ancillary to a dwelling house, is not to be located on any development excluded land. (e) For the purpose of paragraphs (c) and (d), "development ordinarily incidental and ancillary to a dwelling house" includes: (i) the erection of any structures or the performance of any works other than for the purpose of providing utility services for the dwelling house; and (ii) the clearing of native vegetation from natural bushland; and (iii) the provision of access, car-parking and hard-stand areas for the dwelling house; and (iv) such measures, including the provision or use of stormwater control devices, as are required in order to meet the requirements of clause 10.5.

[41]

The addition to cl 6.3(a) imposes a positive obligation to require that development ' maintains and facilitates' sustainable natural ecosystems and biodiversity within the Blue Mountains City Council land.
Clause 6.3(b) imposes a substantially more rigorous obligation than required by the exhibited draft plan. It requires not only the protection of water systems but also the enhancement thereof and the promotion of ecologically sustainable water and land management practices.
The new cl 10.5(g) requires that subdivisions for dwelling houses must be accompanied by an environmental assessment to demonstrate that development excluded land is not adversely impacted by the development. The applicant asserts that this clause will create a prohibition on development as considered by the Court in North Sydney Municipal Council v P D Mayoh Pty Limited [No. 2] (1990) 71 LGERA 222. It is not necessary for the Court to determine whether such provision would constitute a prohibition or a development standard. It is sufficient to observe that it creates a new requirement which was not exhibited.
The new table inserted into cl 10.9 results in an amendment to the range of the development intensity area. It provides a larger building coverage on a lot.
The new cl 34.1(c) imposes a minimal lot size requirement on subdivision of land in two zones if such lots are intended for use as a dwelling house.
The new cl 34.4 restricts development in the RES-BC Zone. Land within the RES-BC cannot be subdivided if it would result in a density exceeding that shown in the relevant density control provision. This is so even if the subdivision would be in accordance with cl 34.1 of the altered LEP. In addition when calculating the development intensity of land in the RES-BC that is subject to a density control provision of 8/ha, land which is steeper than 20 per cent (1 in 5) must be excluded.
The changes to the definitions are significant. The change of definition from the term 'usable land area' to 'development excluded land' and 'development intensity area' has produced the net result that there is an increase in land which cannot be developed.

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