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

Clause 8 of the LEP was descriptive and definitional, not a substantive prohibition, and cl 34.4(c)(i) applied to the proposal because subdivision of land shown RES-BC (NS) was proposed even though the application also related to land in other zones. However, the proposal was not a subdivision for a boundary adjustment: it consolidated lot 7 into lot 1 and then subdivided the enlarged lot 1 into two lots, with a new boundary bearing no relationship to the existing boundary and with proposed lots bearing no resemblance to the existing lots. Clause 34.4(c)(i), read with cll 8, 9.1 and 9.2, defined the permissible class of subdivision on RES-BC (NS) land as subdivision for a boundary...

Jurisdiction: Australia
Judgment Date: 24 April 2006
Procedural Posture: Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application S/32/2004 for a 2 Into 2 Lot Subdivision (boundary Adjustment). / Separate Determination of Questions of Law/issues Concerning Whether Clauses 34.4(c)(i) and 34.11 of the Blue Mountains Local Environmental Plan 1991 Applied, Whether the Proposal Was a Boundary Adjustment, Whether the Proposal Was Prohibited, and Whether the Clauses Were Development Standards Amenable to SEPP 1 Objections.
Outcome: Separate questions answered against the applicants on the critical issues; the proposed development was held to be prohibited development, and the Court stated that, subject to any submission to the contrary, orders should be made dismissing the appeal.
Legal Topics: ['development Consent' 'prohibited Development' 'boundary Adjustment' 'development Standards' 'state Environmental Planning Policy No 1—development Standards' 'blue Mountains Local Environmental Plan 1991']

['planning and Environment Law' 'land Subdivision' 'statutory Interpretation'] ['development Consent' 'prohibited Development' 'boundary Adjustment' 'development Standards' 'state Environmental Planning Policy No 1—development Standards' 'blue Mountains Local Environmental Plan 1991']

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Procedural Posture

Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application S/32/2004 for a 2 Into 2 Lot Subdivision (boundary Adjustment). / Separate Determination of Questions of Law/issues Concerning Whether Clauses 34.4(c)(i) and 34.11 of the Blue Mountains Local Environmental Plan 1991 Applied, Whether the Proposal Was a Boundary Adjustment, Whether the Proposal Was Prohibited, and Whether the Clauses Were Development Standards Amenable to SEPP 1 Objections.

Legal Issues

1 ['Whether cl 34.4(c)(i) of the Blue Mountains Local Environmental Plan 1991 applied to the proposed development.' 'Whether the proposal constituted a boundary adjustment under cl 34.4(c)(i).' 'If not, whether the proposal was prohibited by cl 34.4(c) of the Blue Mountains Local Environmental Plan 1991.' 'Whether cl 34.4(c) was a development standard in respect of which a SEPP 1 objection could be lodged.' 'Whether the proposal constituted a boundary adjustment under cl 34.11 of the Blue Mountains Local Environmental Plan 1991.' 'If not, whether the proposal was prohibited by cl 34.11 of the Blue Mountains Local Environmental Plan 1991.' 'Whether cl 34.11 was a development standard in respect of which a SEPP 1 objection could be lodged.']

Ratio Decidendi

Court Disposition

Separate questions answered against the applicants on the critical issues; the proposed development was held to be prohibited development, and the Court stated that, subject to any submission to the contrary, orders should be made dismissing the appeal.

Orders

['Q. 1A: Yes.' 'Q. 1: No.' 'Q. 2: Yes.' 'Q. 3: No.' 'Q. 4: No.' 'Q. 5: Yes.' 'Q. 6: No.']