Williams v Blue Mountains City Council - [2009] NSWLEC 1261

Land and Environment Court

of New South Wales

CITATION: Williams v Blue Mountains City Council [2009] NSWLEC 1261

PARTIES:
APPLICANT
Ralph Douglas Williams
RESPONDENT
Blue Mountains City Council

FILE NUMBER(S): 11243 of 2008

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Whether subdivision controls represent a prohibition or development standards

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Blue Mountains Local Environmental Plan 1991

CASES CITED: Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331
Strathfield Municipal Council v Poynting [2001] NSWCA 270
Bell v Shellharbour Municipal Council (1993) LGERA 429

DATES OF HEARING: 28 July 2009

DATE OF JUDGMENT:
7 August 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr I Hemmings (barrister)
SOLICITOR
Mr T Cork (solicitor)
of McPhee Kelshaw Conveyancers
RESPONDENT
Mr F Hicks (barrister)
SOLICITOR
Mr F Airbeaggi (solicitor)
of Yates Beaggi Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

7 August 2009

11243 of 2008 Ralph Douglas Williams v Blue Mountains City Council
JUDGMENT

1 This appeal was lodged against council’s deemed refusal of a development application for a 6 lot residential subdivision and associated works at 53 Coughlan Road, Blaxland. A number of issues were identified for the appeal, which are summarised as follows:

Whether the development is prohibited?
Adequacy of information.
Bushfire risks.

2 During the appeal process, the applicant has applied to have the proposed number of lots reduced to 5. Also, the parties agreed to the appeal being undertaken in 2 stages with the initial stage being the determination of the first issue as to whether the proposal, in principle is prohibited.

3 This issue arises from the provisions of the Blue Mountains LEP dealing with subdivisions. In particular, whether those controls present a prohibition for the type of subdivision proposed, or whether the control is a development standard that is amenable to the application of a SEPP 1 objection. In this regard, reference was made to a number of authorities on this question, from which an important element concerns the identification of the development.

The site

4 The subject site is described as Lot 5 in DP 1036777 and it has a total area of 133,690.21sq m. This lot was created in 2002 by way of subdivision of an original land parcel being Lots 281 and 282 DP 703293, then owned by Mr and Mrs Williams in 1998.

5 There have been a number of successive subdivisions of this original parcel as follows:

DP Reference No of Lots

6 The site is located on the western end of Coughlan Road. It comprises a relatively level plateau on which a dwelling house, garage and workshop are presently located. The site falls to the north, west and south of this plateau. To the east, other residential lots previously subdivided from the original land border the site.

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.

Keep reading for free

Create a free CaseChat account to read Williams v Blue Mountains City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWLEC 1261
Decision Date: 7 August 2009

CaseChat Overview and Summary

Williams v Blue Mountains City Council concerned a development application for a six-lot residential subdivision and associated works at 53 Coughlan Road, Blaxland. The applicant, Ralph Douglas Williams, sought to appeal the council's deemed refusal of the application. The key issue before the court was whether the proposed subdivision was prohibited under the Blue Mountains Local Environmental Plan 1991 (LEP) or if the subdivision controls represented development standards that could be subject to an objection under the State Environment Planning Policy 1 (SEPP 1). The applicant also sought to reduce the number of proposed lots from six to five during the appeal process.

The court considered the zoning criteria and development standards outlined in the Blue Mountains LEP and the Environmental Planning and Assessment Act 1979. The applicant argued that the subdivision controls were development standards, while the council argued that they represented a prohibition on the proposed development. The court referred to previous cases, including Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331, Strathfield Municipal Council v Poynting [2001] NSWCA 270, and Bell v Shellharbour Municipal Council (1993) LGERA 429, to assist in determining the issue.

After considering the submissions and relevant authorities, the court found that the zoning subscript in the Blue Mountains LEP could be distinguished from the findings in the Laurence Browning case, as there was no 'pre-condition' to development in the current matter. The court concluded that the proposed development was for a subdivision, which was permitted development according to the Section 9 Table of the Blue Mountains LEP. The provisions of clause 34 of the LEP then regulated the detail of any such subdivision, in a similar manner to the Bell finding, in the court's assessment. Consequently, the court found that clauses 34.4(a) and 34.1(b) of the BMCC LEP were development standards, and a SEPP 1 objection could be lodged in respect of any development standard, which could then be determined on its merits.

Orders