Blue Mountains City Council v Ralph Douglas Williams
[2009] NSWLEC 223
•9 December 2009
Land and Environment Court
of New South Wales
CITATION: Blue Mountains City Council v Ralph Douglas Williams [2009] NSWLEC 223 PARTIES: APPELLANT
RESPONDENT
Blue Mountains City Council
Ralph Douglas WilliamsFILE NUMBER(S): 10626 of 2009 CORAM: Preston CJ KEY ISSUES: APPEAL :- s 56A appeal - appeal against decision of commissioner on question of law - decision on separate questions - whether provisions of local environmental plan are development standards - decision based on agreed facts - agreed facts erroneous on a fundamental matter - error material to decision - parties agree decision should be set aside and matter redetermined on correct facts - direction for separate questions revoked - whole of proceedings fixed for final hearing. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 56A
Local Government Act 1919, s 327AADATES OF HEARING: 9 December 2009 EX TEMPORE JUDGMENT DATE: 9 December 2009 LEGAL REPRESENTATIVES: APPELLANT
Mr T I Cork (solicitor)SOLICITORS
McPhee KelshawRESPONDENT
SOLICITORS
Mr F P Hicks (barrister)
Yates Beaggi Lawyers Pty Ltd
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPRESTON CJ
9 DECEMBER 2009
10626 OF 2009
JUDGMENTBLUE MOUNTAINS CITY COUNCIL V RALPH DOUGLAS WILLIAMS
1 HIS HONOUR: The acting registrar made directions under Pt 28 r 28.2 of the Uniform Civil Procedure Rules 2005 that certain questions concerning whether cll 34.1(b) and 34.4(a) and of the Blue Mountains Local Environmental Plan 1991 (“LEP”) are development standards under the Environmental Planning and Assessment Act 1979, be decided separately from other questions in the proceedings.
2 Those separate questions were listed for hearing and determination before Commissioner Hussey on 28 July 2009. Commissioner Hussey gave judgment on 7 August 2009. The parties had agreed on certain facts necessary for the determination of the separate questions. These related to the potential lot yield from the lot that was to be subdivided as part of the development proposal. The commissioner determined the separate questions on the basis of these agreed facts.
3 On the hearing of the appeal under s 56A of the Land and Environment Court Act 1979 brought by the Council against Commissioner Hussey’s decision it became clear that the facts that the parties had agreed should form the basis of the hearing and determination of the separate questions were erroneous in a fundamental way. The consequence is that the factual basis for the hearing and determination of the separate questions has been undermined. The problem can be seen with a short explanation.
4 Clause 34.1(b) of the LEP provides that:
- “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 notional development 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.”
5 Clause 34.4(a) of the LEP provides:
“Where a Density Control Provision is shown on the Map, subdivision of the land, in accordance with clause 34.1, to a density exceeding that shown is prohibited.”
6 It can be seen that these provision turn on the concept of the “original lot”. This is defined in cl 19 and the interpretation provisions in Schedule 4 in the LEP to mean “a lot in a current plan (within the meaning of s 327AA(1) of the Local Government Act 1919) existing as at 27 December 1991.”
7 It is agreed between the parties that as at 27 December 1991, on Mr Williams’ land, there were two lots, Lot 281 and Lot 282 in DP 703293. Hence, in order to determine the number of lots that can be yielded by a subdivision of the original lot pursuant to cl 34.1(b) of the LEP, two sets of calculations need to be done, one, for the original of Lot 281 and the other for the original lot of Lot 282. Unfortunately, the hearing and determination of the separate questions proceeded on the erroneous basis that there was only one amalgamated original lot rather than on the correct basis that there were two original lots. This error had important consequences because, over time, the original lots of Lot 281 and Lot 282 had been subdivided, but with different numbers of lots in each of the two original lots. This affects the determination of whether there is any spare capacity for further subdivision and creation of lots.
8 In these proceedings, Mr Williams is proposing a further subdivision of what was originally the original lot of Lot 281 to create a further four lots. In order to understand whether this further subdivision would cause the number of lots to exceed the maximum number of lots in the control in cl 34.1(b) of the LEP, it is necessary to do the calculation using the original lot of Lot 281 and not an amalgamation of Lots 281 and 282.
9 As I have said, Commissioner Hussey determined the separate questions that had been fixed for trial on the basis of the assumed fact that the original lot was an amalgamation of Lots 281 and 282 rather than the correct fact that the original lot was only Lot 281 and then assessing what would be the consequence in terms of the control in cl 34.1(b) of the LEP if there were to be the subdivision proposed by Mr Williams.
10 In these circumstances, the parties now agree that it is appropriate that the decision of Commissioner Hussey be set aside as being based upon erroneous facts. The matter should then be redetermined on the basis of the correct facts.
11 As events have unfolded, it now seems that a number of other issues, that is to say, issues other than the issue concerning cll 34.1(b) and 34.4(a) of the LEP, have largely been resolved. There is one potential issue in relation to bushfire risk, but that may be able to be resolved with joint conferencing of the parties’ respective bushfire experts.
12 It now seems that the original order that there be a separation of questions from other questions may no longer be appropriate and instead it would be appropriate for the whole proceedings to be listed for final hearing. The parties therefore agree that the previous order separating questions should be revoked and the matter should be fixed for a final hearing of all questions in issue.
13 In the circumstances, it is appropriate that the 56A appeal be upheld and the decision of Commissioner Hussey of 7 August 2009 be set aside. In doing so, there is no determination of the correctness of the interpretation of Commissioner Hussey that cll 34.1(b) and 34.4(a) of the LEP are development standards. It is simply a recognition that the separate questions were determined on facts which are erroneous and that instead there should be a redetermination of the questions based upon the correct facts. If the proposed subdivision is in breach of cll 34.1(b) and 34.4(a) of the LEP, the question of whether these provisions are development standards will be a matter for determination by the Court at the final hearing of these proceedings.
14 For these reasons, the Court makes the following orders:
1. The appeal is upheld.
2. The decision of Commissioner Hussey of 7 August 2009 is set aside.
3. The order in proceedings no 11243 of 2008, that the questions concerning whether cll 34.1(b) and 34.4(a) of Blue Mountains Local Environmental Plan 1991 are development standards be decided separately from other questions in the proceedings, is revoked.
4. The whole of the proceedings in proceedings no 11243 of 2008 are fixed for final hearing on 15 February 2010 before a judge.
5. Blue Mountains City Council is to file and serve its amended statement of facts and contentions in proceedings no 11243 of 2008 on or before 14 December 2009.
6. Mr Williams is to file any response to the amended statement of facts and contentions on or before 21 December 2009.
8. Each party is to bear their own costs of this appeal and the hearing and determination of the separate questions before Commissioner Hussey.7. The parties’ respective bushfire experts are to jointly confer and produce to the parties a joint conference report by 23 December 2009.
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