Blaxland Park Pty Ltd v Blue Mountains City Council & Anor. [2005] NSWLEC 631

Blaxland Park Pty Ltd v Blue Mountains City Council & Anor. [2005] NSWLEC 631

On the true meaning of clause 34.1(d), the proposed accessways were not development for the purpose of any dwelling-house proposed as part of the cluster housing development, and the location of parts of those accessways on development excluded land was not contrary to the clause. It was therefore open to the Council, and to the Court on appeal, to grant development consent for the amended subdivision proposal.

Jurisdiction
Australia
Judgment Date
11 September 2005
Procedural Posture
Question of Law Concerning Development Application for Cluster Housing Subdivision / Determination of Questions of Law Raised by the Second Respondent
Outcome
Questions 1 and 2 answered in the negative; Questions 3 and 4 not required to be answered; proceedings stood over and costs reserved.
Legal Topics
['development Application' 'cluster Housing Subdivision' 'private Accessways' 'blue Mountains Local Environmental Plan 1991 Cl 34.1(d)' 'development Excluded Land' 'development Standard or Prohibition']
['planning and Environment Law'] ['development Application' 'cluster Housing Subdivision' 'private Accessways' 'blue Mountains Local Environmental Plan 1991 Cl 34.1(d)' 'development Excluded Land' 'development Standard or Prohibition']

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Procedural Posture

Question of Law Concerning Development Application for Cluster Housing Subdivision / Determination of Questions of Law Raised by the Second Respondent

Legal Issues

  1. 1 ['Whether accessways within the development are "development for the purpose of any dwelling house proposed to be erected as part of the cluster housing development" within the meaning of clause 34.1(d) of the LEP.' 'Whether accessways within the development located on development excluded land are contrary to clause 34.1(d)(i).' 'Whether clause 34.1(d) is a prohibition or a development standard.' 'If clause 34.1(d) is a development standard, whether variation of it under SEPP 1 or exhibited draft SEPP 1 (Amendment No. 4) to permit the proposed accessways is capable of promoting the underlying purpose of the development standard or being consistent with the aims or objectives of the LEP.']

Ratio Decidendi

On the true meaning of clause 34.1(d), the proposed accessways were not development for the purpose of any dwelling-house proposed as part of the cluster housing development, and the location of parts of those accessways on development excluded land was not contrary to the clause. It was therefore open to the Council, and to the Court on appeal, to grant development consent for the amended subdivision proposal.

Court Disposition

Questions 1 and 2 answered in the negative; Questions 3 and 4 not required to be answered; proceedings stood over and costs reserved.

Orders

  • ['Determine that the Questions of Law raised by the second Respondent be answered as follows: Question 1: No; Question 2: The location of parts of the proposed accessways on "development excluded land" is not contrary to s 34.1(d); Question 3: In view of the answers to questions 1 and 2 this question is not required...