Leaney v Blue Mountains City Council [2012] NSWLEC 1090

Leaney v Blue Mountains City Council [2012] NSWLEC 1090

The subdivision proposal does not comply with cl 90(9) of the Blue Mountains Local Environmental Plan 2005 because the required development spaces for the new lots are wholly situated on development excluded land, specifically land comprising a significant vegetation community (SSTF) as defined by subclauses (d) and (e) of the LEP. The adverse impact test in cl 44(2) does not override this mandatory requirement, and there is no hierarchy among the categories of development excluded land. As a result, consent for subdivision cannot be granted.

Jurisdiction
Australia
Judgment Date
04 April 2012
Procedural Posture
Appeal / Judgment After Hearing
Outcome
Appeal dismissed
Legal Topics
['development Application' 'subdivision' 'endangered Ecological Communities' 'asset Protection Zone' 'bushfire Protection' 'local Environmental Plan' 'development Excluded Land']
['environmental Law' 'planning Law'] ['development Application' 'subdivision' 'endangered Ecological Communities' 'asset Protection Zone' 'bushfire Protection' 'local Environmental Plan' 'development Excluded Land']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the subdivision proposal provides for an adequate development space not on development excluded land under the Blue Mountains Local Environmental Plan 2005 (BMLEP)' 'Whether the proposal complies with cl 90(9) of BMLEP requiring development space not to be on development excluded land' 'Whether asset protection zones (APZ) and associated clearing have an adverse environmental impact on the Shale Sandstone Transition Forest (SSTF) Endangered Ecological Community and the Glossy Black Cockatoo' 'Interpretation and application of the definition of development excluded land' 'Whether approval would create an unacceptable precedent']

Ratio Decidendi

The subdivision proposal does not comply with cl 90(9) of the Blue Mountains Local Environmental Plan 2005 because the required development spaces for the new lots are wholly situated on development excluded land, specifically land comprising a significant vegetation community (SSTF) as defined by subclauses (d) and (e) of the LEP. The adverse impact test in cl 44(2) does not override this mandatory requirement, and there is no hierarchy among the categories of development excluded land. As a result, consent for subdivision cannot be granted.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'Development Application No. S/21/2011 for a three-lot subdivision of Lot 12 in DP 255826 known as 9 Bellata Court (also known as 4 Turella Street) Glenbrook is determined by refusal.' 'All exhibits except 1, 9 and E are returned.']