Conway v Blue Mountains City Council

[2006] NSWLEC 280

Land and Environment Court

of New South Wales

CITATION:	Conway v Blue Mountains City Council [2006] NSWLEC 280
PARTIES:	Applicant: Brian and Vashti Conway Respondent: Blue Mountains City Council
FILE NUMBER(S):	10052 of 2006
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- reasonableness of conditions
DATES OF HEARING:	25/05/2006
EX TEMPORE JUDGMENT DATE:	05/25/2006
LEGAL REPRESENTATIVES:	Applicant: Mr R O'Gorman-Hughes, solicitor of Yates Biaggi Lawyers Respondent: Mr A Seton, solicitor of Marsdens

JUDGMENT:

- 4 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

25 May 2006

10052 of 2006 Brian and Vashti Conway v Blue Mountains City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against Conditions 1 and 2 of development consent S05/0036 issued by the Blue Mountains City Council on 14 February 2006 in respect of a boundary adjustment of lots 3 and 4 DP 882986, 241 Great Western Highway, Warrimoo. The conditions appealed against are

1. The vehicular access shall be constructed in accordance with the requirements of Australian Standards AS 2890.1 (1993) Section 3.2.2, which requires a minimum construction width of 5.5m for at least the first 6m from the frontage roadway.
and
2. The existing driveway entry layback is to be widened to 6m.

2 The allotments are vacant. The access to the two allotments, both in their existing and their proposed form, is off a cul-de-sac that connects to the Great Western Highway. There is an existing 4m wide layback to one of the allotments. A right-of-way exists to two other allotments, neither of which has a dwelling on it, though there is an application before the council for a dwelling on one of them. A 3.5m wide driveway is built a certain, but not the full length of the right-of-way.

3 The applicant argues that the boundary adjustment of two allotments without dwellings does not give rise to the need for either a driveway or the widening of the existing layback.

4 The council justifies its decision on the basis of Local Environmental Plan 4 (LEP 4) and the Better Living Development Control Plan (the DCP). Clause 42(f) of LEP 4 requires the council, when assessing certain factors of an application for subdivision, to consider:

Whether adequate provision has been made, in the opinion of the council, for access on to the land from a public road.

5 The Subdivision Section of the DCP under the heading Location of Driveway Access D8.11.12 states:

All lots should identify possible driveway locations. If there is only one possible or likely location, then the driveway shall be constructed as part of the subdivision works.

6 Before turning to a resolution of matter, I note that the scope of the dispute is minor. While I was not able to get reasonable information on the cost of meeting conditions 1 and 2, I suspect that it is small. I am surprised that it justifies the cost of litigation. However, now that the dispute is before me, my duty is to resolve it as quickly and cheaply as possible.

7 In my opinion, the two conditions are not imposed reasonably and are not required at this stage. My reasons are as follows:

· Section 80A(1)(a) of the Environmental Planning and Assessment Act 1979 allows the imposition of conditions if they relate to any matter referred to in s79C(1). The most relevant part of s79C(1) is the reference to any environmental planning instrument or development control plan. Therefore I must consider cl 42(f) of LEP 4 and D8.11.12 of the DCP.

· Clause 42(f) of LEP 4 requires adequate provision for access from a public road. The existing layback and the existing driveway are adequate provision, so long as the allotments remain without dwellings. Both the layback and the driveway will have to be upgraded when and if a house is built on one or both of them.

· The intent of D8.11.12 of the DCP is met by the existing layback and driveway. These features fix the position of a future layback and driveway. If they need to be upgraded as a result of an application for a dwelling on any of the four allotments served by the layback and the driveway, this can be required as a condition of consent to any or all those applications.

8 It is a general principle established in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599-600) that a condition of consent must meet three tests, namely:

· It must be for a planning purpose;

· It must relate fairly and reasonably to the development; and

· It must not be so unreasonable that no reasonable authority would have imposed it.

9 In my opinion, the two conditions appealed against meet the first test only partially, and they do not meet the second test. While the widening of the layback and driveway may serve a planning purpose ultimately (ie when the first house is built on one of the four allotments), it does not serve a planning purpose now, when there are no houses on any of them. This was clear from the evidence of Mr B Tully, a senior planner with the council, who agreed that, until at least one house is built, there will be no use of, and no need for, the driveway.

10 The conditions do not meet the second test, in that they do not relate fairly and reasonably to the development. The development is the adjustment of boundaries. The adjustment of boundaries by itself does not give rise for the use of the layback or the driveway.

11 The third test of reasonability arises only if the first two tests are met.

12 I note that the boundary adjustment cannot properly be called a subdivision. It turns two allotments of a certain size into two allotments of different size. As a result planning controls and requirements that are intended for subdivision should be applied judiciously.

13 For the above reasons, the appeal is allowed.

Orders

1. The appeal is upheld.

2. Conditions 1 and 2 of development consent S05/0036 issued by the Blue Mountains City Council on 14 February 2006 in respect of a boundary adjustment of lots 3 and 4 DP 882986, 241 Great Western Highway, Warrimoo are deleted.

3. The exhibits are returned.

____________________
Dr John Roseth
Senior Commissioner