McCabe v Blue Mountains City Council - [2006] NSWLEC 176

Reported Decision: (2006) 145 LGERA 86

Land and Environment Court

of New South Wales

CITATION: McCabe & Others v Blue Mountains City Council [2006] NSWLEC 176

PARTIES:
APPLICANTS
William McCabe and Maria McCabe
RESPONDENT
Blue Mountains City Council

FILE NUMBER(S): 11601 of 2005

KEY ISSUES: Development Standards - Question of Law :- Whether proposed development is a subdivision for a boundary adjustment; If not, whether provision of the environmental planning instrument is a development standard

LEGISLATION CITED: Blue Mountains Local Environmental Plan 1991
Environmental Planning and Assessment Act 1979 s 4, s 8, s 26(1), s 31, s 76A, s 76B, s 97, s 122, s 125
Interpretation Act 1987 s 11, s 33
Land and Environment Court Rules 1996 Pt 1 r 5A
State Environmental Planning Policy No 1—Development Standards
State Environmental Planning Policy No 4 – Development Without Consent

CASES CITED: Boast v Eurobodalla Shire Council, Cripps J, NSWLEC, 22 November 1991, unreported;
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389;
Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of The Commonwealth of Australia (1981) 147 CLR 297;
Gibb v The Commissioner of Taxation of The Commonwealth of Australia (1966) 118 CLR 628;
Greg Young v Parramatta City Council [2006] NSWLEC 116;
House of Peace Pty Ltd and Another v Bankstown City Council (2000) 48 NSWLR 498;
Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74;
Lowy v The Land and Environment Court of NSW and Others (2002) 123 LGERA 179;
Lyne v Moree Plains Shire Council (1999) 110 LGERA 120;
Malas Development Pty Ltd v Sutherland Shire Council (1999) 102 LGERA 303;
Maunsell v Olins and Another [1975] AC 373;
Ousley Pty Ltd v Warringah Shire Council (No 2) (1999) 104 LGERA 250;
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355;
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305;
Shire of Perth v O’Keefe and Another (1964) 110 CLR 529;
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319;
The Commonwealth v Baume (1905) 2 CLR 405;
Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138;
Woollahra Municipal Council v Carr (1985) 62 LGRA 263;
Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707

DATES OF HEARING: 14/03/2006

DATE OF JUDGMENT:
04/24/2006

LEGAL REPRESENTATIVES: APPLICANTS
M Carpenter
SOLICITORS
G J Harris & Co
RESPONDENT
J Robson SC
SOLICITORS
McPhee Kelshaw

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

24 April 2006

11601 of 2005

WILLIAM McCABE & MARIA McCABE
Applicant

BLUE MOUNTAINS CITY COUNCIL
Respondent
JUDGMENT

Jagot J:
Introduction

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the “EPA Act”) against the respondent’s refusal of development application S/32/2004. The development application relates to land known as 178 – 186…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLEC 176
Decision Date: 04/24/2006

CaseChat Overview and Summary

McCabe v Blue Mountains City Council is an appeal against the refusal of a development application by the Blue Mountains City Council. The applicants, William McCabe and Maria McCabe, sought to consolidate and subdivide land in Wentworth Falls, New South Wales. The applicants argued that the proposed development was a boundary adjustment, whereas the council argued that it was not. The applicants also argued that certain clauses in the Blue Mountains Local Environmental Plan 1991 were not development standards. The court considered the nature of the proposed development and the relevant clauses in the environmental planning instrument. The court found that the proposed development was not a boundary adjustment, and that the clauses in question were not development standards. Consequently, the appeal was dismissed, and the proposed development was deemed prohibited.

Orders