BLUE MOUNTAINS CITY COUNCIL v LAURENCE BROWNING PTY LTD [2006] NSWCA 331

BLUE MOUNTAINS CITY COUNCIL v LAURENCE BROWNING PTY LTD [2006] NSWCA 331

Clause 29.2 was not a development standard because the consolidation requirement was imposed as part of the zoning under the LEP, precluded all forms of development absent compliance, required consolidation of lots as a precondition to any permissible development, did not identify any aspect of a particular development or fix a standard or specify a requirement with respect to it, and applied indiscriminately to every permissible development within the area covered. State Environmental Planning Policy No. 1 – Development Standards therefore did not apply.

Jurisdiction
Australia
Judgment Date
27 November 2006
Procedural Posture
Appeal Concerning Environmental Planning and Development Standards / Application for Leave to Appeal and Appeal From the Land and Environment Court's Determination of a Separate Question
Outcome
Leave to appeal granted; appeal allowed; judgment below set aside; separate question answered No.
Legal Topics
['development Standards' 'environmental Planning and Assessment Act 1979 (nsw) S 4(1)' 'state Environmental Planning Policy No. 1 – Development Standards' 'blue Mountains Local Environmental Plan 1991 Cl 29.2' 'zoning Criteria' 'consolidation Requirement']
['environmental Planning' 'statutory Construction'] ['development Standards' 'environmental Planning and Assessment Act 1979 (nsw) S 4(1)' 'state Environmental Planning Policy No. 1 – Development Standards' 'blue Mountains Local Environmental Plan 1991 Cl 29.2' 'zoning Criteria' 'consolidation Requirement']

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Procedural Posture

Appeal Concerning Environmental Planning and Development Standards / Application for Leave to Appeal and Appeal From the Land and Environment Court's Determination of a Separate Question

Legal Issues

  1. 1 ['Whether cl 29.2 of the Blue Mountains Local Environmental Plan 1991 is a development standard as defined in s 4(1) of the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether the consolidation requirement was a zoning criterion or prohibition rather than a requirement or standard in respect of an aspect of the proposed development.' 'Whether State Environmental Planning Policy No. 1 – Development Standards could be applied to permit an objection to non-compliance with cl 29.2.']

Ratio Decidendi

Clause 29.2 was not a development standard because the consolidation requirement was imposed as part of the zoning under the LEP, precluded all forms of development absent compliance, required consolidation of lots as a precondition to any permissible development, did not identify any aspect of a particular development or fix a standard or specify a requirement with respect to it, and applied indiscriminately to every permissible development within the area covered. State Environmental Planning Policy No. 1 – Development Standards therefore did not apply.

Court Disposition

Leave to appeal granted; appeal allowed; judgment below set aside; separate question answered No.

Orders

  • ['Grant leave to Blue Mountains City Council to appeal from the judgment of the Land and Environment Court given on 27 February 2006.' 'Allow the appeal and set aside the judgment below.' 'In lieu thereof, answer the separate question as follows: Question: Is clause 29.2 [of the Blue Mountains Local Environmental...