Dunn v Blue Mountains City Council [2006] NSWLEC 521

Dunn v Blue Mountains City Council [2006] NSWLEC 521

Although the proposal complied with Blue Mountains Local Environmental Plan No 4 and was saved by cl 6(4) of Blue Mountains Local Environmental Plan 2005, LEP 2005 had been gazetted and was to be given considerable weight. The proposed subdivision was inconsistent with the planning approach in LEP 2005 because the site was constrained by slope and a gully, the proposed lots would have significantly less unconstrained development space than required, and the applicant did not demonstrate that two dwellings could be placed on the site while maintaining its bushland character. The appeal therefore failed and the development application was refused.

Jurisdiction
Australia
Judgment Date
11 August 2006
Procedural Posture
Appeal Against Refusal of Development Application for Subdivision / Ex Tempore Judgment
Outcome
Appeal dismissed; development application refused.
Legal Topics
['subdivision' 'weight to Be Given to Draft Lep' 'minimum Allotment Size' 'minimum Frontage Width' 'development Excluded Land' 'bushland Conservation Zoning']
['planning Law' 'environmental Law' 'development Consent'] ['subdivision' 'weight to Be Given to Draft Lep' 'minimum Allotment Size' 'minimum Frontage Width' 'development Excluded Land' 'bushland Conservation Zoning']

Case Brief

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Procedural Posture

Appeal Against Refusal of Development Application for Subdivision / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the development application to subdivide one existing allotment into two allotments should be approved despite non-compliance with controls in Blue Mountains Local Environmental Plan 2005.' 'What weight should be given to Blue Mountains Local Environmental Plan 2005 under the savings provisions where the application was lodged before that plan was gazetted.' 'Whether the proposed lots provided sufficient unconstrained development space to maintain the bushland character and low density planning approach for the Living - Bushland Conservation zone.']

Ratio Decidendi

Although the proposal complied with Blue Mountains Local Environmental Plan No 4 and was saved by cl 6(4) of Blue Mountains Local Environmental Plan 2005, LEP 2005 had been gazetted and was to be given considerable weight. The proposed subdivision was inconsistent with the planning approach in LEP 2005 because the site was constrained by slope and a gully, the proposed lots would have significantly less unconstrained development space than required, and the applicant did not demonstrate that two dwellings could be placed on the site while maintaining its bushland character. The appeal therefore failed and the development application was refused.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development application (DAS/29/2004) to subdivide one existing allotment into two allotments at 40 Prince Street, Glenbrook (Lot 5 DP758448) is refused.' 'The exhibits may be returned.']