Williams v Blue Mountains City Council - [2010] NSWLEC 92

Land and Environment Court

of New South Wales

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

PARTIES:
APPLICANT:
Ralph Douglas Williams
RESPONDENT:
Blue Mountains City Council

FILE NUMBER(S): 11243 of 2008

CORAM: Biscoe J

KEY ISSUES: DEVELOPMENT APPLICATION :- residential subdivision - applicant and council agree that development application be approved subject to conditions - objectors object - whether proposal breaches density control provision of local environmental plan - merit considerations

LEGISLATION CITED: Blue Mountains Local Environmental Plan 1991
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1- Development Standards

CASES CITED: Agostino v Penrith City Council [2010] NSWCA 20, 172 LGERA 380
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

DATES OF HEARING: 15 February 2010, 21 April 2010, 31 May 2010

DATE OF JUDGMENT:
8 June 2010

LEGAL REPRESENTATIVES: APPLICANT:
Mr A Pickles
SOLICITORS:
Yates Beaggi

RESPONDENT:
Mr I Hemmings
SOLICITORS:
McPhee Kelshaw

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

8 June 2010

11243 of 2008

RALPH DOUGLAS WILLIAMS v BLUE MOUNTAINS CITY COUNCIL

JUDGMENT

1 HIS HONOUR: This is a merits appeal under the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant, Ralph Williams, against the respondent Blue Mountains City Council’s deemed refusal of his development application for a subdivision and associated works at 53 Coughlan Road, Blaxland.

2 The development application described the location as Lot 5 in DP 103697, which has a total area of approximately 133,690.12m². The proposed subdivision in its final form, as amended during the hearing, is to create three new adjacent residential lots on a relatively small part of the land.

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…

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: [2010] NSWLEC 92
Decision Date: 8 June 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Ralph Douglas Williams, the applicant, filed an appeal against the Blue Mountains City Council's deemed refusal of his development application for a residential subdivision at 53 Coughlan Road, Blaxland. The applicant and the council agreed that the development application should be approved subject to certain conditions, but objectors raised concerns about the proposal. The court was required to decide whether the proposal breached the density control provision of the local environmental plan and to consider merit considerations.

The court examined the Blue Mountains Local Environmental Plan 1991, the Environmental Planning and Assessment Act 1979, and the State Environmental Planning Policy No 1 - Development Standards. The court also referred to previous case law, including Agostino v Penrith City Council, Blue Mountains City Council v Williams, and Issa v Burwood Council. After hearing arguments from both parties and considering the objectors' submissions, the court found that the proposal for three new lots did not breach the density control provisions of the LEP. The court also determined that the visual impact, parking and traffic issues, fire risk, and loss of vegetation and fauna were not significant enough to warrant refusal of the application.

The court granted the applicant's appeal and approved the development application, subject to the agreed-upon conditions. The applicant was ordered to pay the council's costs incurred in the assessment and proceedings, excluding the hearing before the commissioner. The court also granted liberty to restore and allowed the exhibits to be returned, except for specific exhibits.

Orders