Johnston v Blue Mountains City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Johnston v Blue Mountains City Council [2011] NSWLEC 1220
Hearing dates:	19, 20, 23 May 2011
Decision date:	08 July 2011
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to conditions
Catchwords:	Development application; subdivision; access to bush fire prone land; tree removal and zone objectives
Legislation Cited:	Environmental Planning & Assessment Act 1979 Blue Mountains Local Environmental Plan 2005 Rural Fires Act 1997 State Environmental Planning Policy No 1: Development Standards Dividing Fences Act 1991 Conveyancing Act 1919
Cases Cited:	BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399 Cecil D Barker & Co v Blue Mountains City Council [2001] NSWLEC 244 Winton Property Group Ltd v North Sydney Council [2001] NSWLEC 46 Wehbe v Pittwater Council [2007] NSWLEC 827 Allen and anor v Cessnock City Council [2010] NSWLEC 1179
Texts Cited:	Planning for Bushfire Protection 2006
Category:	Principal judgment
Parties:	Ms B Johnston (Applicant) Blue Mountains City Council (Respondent)
Representation:	Counsel Mr O'Gorman-Hughes (Applicant) Solicitors Yates Beaggi Lawyers (Applicant) Mr A Seton (Respondent) Marsdens Law Group
File Number(s):	10079 of 2011

Judgment

1. This is an appeal pursuant to s 97(1)(b) of the Environmental Planning & Assessment Act 1979 (the Act) against the refusal by Blue Mountains City Council (the council) of Development Application No. S/56/2008 for a 10 lot subdivision of Lot 27 DP 212973 112 Cleopatra Street, Blackheath (the site).

1. The contentions raised by the council can be summarised as:

• Non-compliance with the development standard for road access to bush fire prone land in cl 84(3) of the Blue Mountains Local Environmental Plan 1995 (BLEP)
• Adverse impact on the landscape character and traditional garden setting of the locality because of the proposed extensive removal of trees and is thus inconsistent with the objectives of the zone
• Unacceptable impacts on trees on adjoining properties resulting from the removal of trees from the site
• Not in the public interest because of the risks and burdens imposed on the owners of adjoining properties.

The site and the locality

1. The site occupies an irregularly shaped central portion of the block bounded by Cleopatra, Cross and Romaine Streets and Govetts Leap Road Blackheath. The site is 1.66 ha with a street frontage of 18.9m to Cleopatra Street and a 22.5m frontage to Cross Street. The long axis of the site runs from northwest to southeast.

1. A two storey dwelling with driveway access off Cleopatra Street currently exists on the site. The site is surrounded by residential development of single dwellings on generally large blocks of land with established trees. Two heritage items listed in Schedule 6 of the BLEP adjoin the site; 'Cleopatra' to the south and 'Balquhain' to the west.

1. The site is dominated by mature Pinus radiata trees and a weedy understorey. There is some native vegetation in the northern corner of the site and a domestic garden adjacent to the dwelling. There are some mature deciduous and other exotic trees to the northeast of the 'Cleopatra'…