Williams v Blue Mountains City Council

Land and Environment Court (NSW)|2010-02-15|Before: Biscoe J, Preston CJ

The Applicant is given leave to amend the plans the subject of the appeal by substituting the original DA plan for the plan annexed and marked "A". 2. The appeal is upheld. 3. Development consent is granted in respect of Development Application No. S/45/2008, for the subdivision of Lot 5 in Deposited Plan 1036777 into 4 lots as depicted in the Plan of Subdivision prepared by Stephen Conroy (Surveyors) Pty Limited, dated 2 May 2010, annexed and marked "A", subject to the conditions annexed and marked "B". 4. The applicant pay the respondent's costs in accordance with Section 97B of the Environmental Planning and Assessment Act 1979, of the Council that were incurred in respect of the assessment of, and proceedings relating to the original development application the subject of the proceedings, excluding the hearing before Commissioner Hussey (and costs associated thereto) as agreed or assessed. 5. Liberty to restore on 7 days notice. 6. The exhibits may be returned except for exhibits F and 4.

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

CITATION : Williams v Blue Mountains City Council [2010] NSWLEC 92

Agostino v Penrith City Council [2010] NSWCA 20, 172 LGERA 380 CASES CITED: Blue Mountains City Council v Williams [2009] NSWLEC 223 Issa v Burwood Council [2005] NSWCA 38, 137 LGERA 221 Williams v Blue Mountains City Council [2009] NSWLEC 1261

3 Two of the proposed lots - Nos 1002 and 1003 with areas of, respectively, 1624m2 and 1255m2 - are at the western cul-de-sac end of, and have vehicular access to, Coughlan Road. The third proposed lot - No 1004 with an area of 1984m2 - is at the western cul-de-sac end, and has vehicular access to, Rock Wallaby Way. Those two streets and a third cul-de-sac, Honeyeater Crescent, are roughly parallel and form the head of a trident running in a general east to west direction. Coughlan Road is the central prong of the trident, Rock Wallaby Road is the southern prong and Honeyeater Crescent is the northern prong. There are existing residential lots between these three streets which, towards their cul-de-sac ends, are not dissimilar in area to the area of the three new proposed lots. The surrounding area is bushland. 4 Originally in the proceedings the proposal was to create four new residential lots. At that time, one of the council's contentions was that this breached the density control provisions of cl 34.1 of the Blue Mountains Local Environmental Plan 1991 (LEP) and was prohibited by cl 34.4. The applicant contended that there was no breach of cl 34.1. Alternatively, the applicant submitted that (a) the breach was only to the extent of one residential lot; (b) cl 34.1 was a "development standard"; and (c) the applicant's objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) that compliance with the development standard was unreasonable or unnecessary in the circumstances of the case was well founded and development consent should be granted. There was an issue whether, as the applicant submitted, part lots should be ignored for the purposes of deriving the maximum number of lots per hectare required by cl 34.1, which involved consideration of Issa v Burwood Council [2005] NSWCA 38, 137 LGERA 221.

5 A preliminary question whether cl 34.1(b) of the LEP is a development standard was answered in the affirmative by a commissioner of the Court: Williams v Blue Mountains City Council [2009] NSWLEC 1261.

6 On the council's appeal on a question of law, the parties agreed that the commissioner's decision was based on assumed facts which were erroneous and, by consent, Preston CJ upheld the appeal, set aside the commissioner's determination and remitted the whole of the proceedings to be heard by a judge: Blue Mountains City Council v Williams [2009] NSWLEC 223. That is how the matter came before me.

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