Blue Mountains City Council v Ralph Douglas Williams [2009] NSWLEC 223

Blue Mountains City Council v Ralph Douglas Williams [2009] NSWLEC 223

Commissioner Hussey's decision was set aside because the separate questions were heard and determined on a fundamentally erroneous factual basis: the parties had proceeded as if there were one amalgamated original lot, when the correct fact was that as at 27 December 1991 there were two original lots, Lot 281 and Lot 282 in DP 703293. That error undermined the calculation required by cl 34.1(b) and was material to whether further subdivision capacity existed. The appeal was therefore upheld, the separation order revoked, and the whole proceedings fixed for final hearing.

Jurisdiction
Australia
Judgment Date
09 December 2009
Procedural Posture
S 56 a Appeal / Appeal Against Commissioner Hussey's Decision on Separate Questions
Outcome
Appeal upheld; Commissioner Hussey's decision of 7 August 2009 set aside; order for separate questions revoked; whole proceedings fixed for final hearing.
Legal Topics
['development Standards' 'subdivision' 'separate Questions' 'appeal on Question of Law' 'erroneous Agreed Facts' 'bushfire Risk']
['environmental Planning and Development' 'land and Environment Court Procedure'] ['development Standards' 'subdivision' 'separate Questions' 'appeal on Question of Law' 'erroneous Agreed Facts' 'bushfire Risk']

Case Brief

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Procedural Posture

S 56 a Appeal / Appeal Against Commissioner Hussey's Decision on Separate Questions

Legal Issues

  1. 1 ['Whether cll 34.1(b) and 34.4(a) of the Blue Mountains Local Environmental Plan 1991 are development standards under the Environmental Planning and Assessment Act 1979.' "Whether Commissioner Hussey's decision on the separate questions should be set aside because it was based on agreed facts that were erroneous in a fundamental way." 'Whether the order separating questions from other questions should be revoked and the whole proceedings fixed for final hearing.']

Ratio Decidendi

Commissioner Hussey's decision was set aside because the separate questions were heard and determined on a fundamentally erroneous factual basis: the parties had proceeded as if there were one amalgamated original lot, when the correct fact was that as at 27 December 1991 there were two original lots, Lot 281 and Lot 282 in DP 703293. That error undermined the calculation required by cl 34.1(b) and was material to whether further subdivision capacity existed. The appeal was therefore upheld, the separation order revoked, and the whole proceedings fixed for final hearing.

Court Disposition

Appeal upheld; Commissioner Hussey's decision of 7 August 2009 set aside; order for separate questions revoked; whole proceedings fixed for final hearing.

Orders

  • ['The appeal is upheld.' 'The decision of Commissioner Hussey of 7 August 2009 is set aside.' 'The order in proceedings no 11243 of 2008, that the questions concerning whether cll 34.1(b) and 34.4(a) of Blue Mountains Local Environmental Plan 1991 are development standards be decided separately from other questions...