Reported Decision : 120 LGERA 1 Land and Environment Court of New South Wales CITATION : Blaxland Park Pty Limited v Blue Mountains City Council [2001] NSWLEC 156 APPLICANT: Blaxland Park Pty Limited PARTIES : RESPONDENT: Blue Mountains City Council FILE NUMBER(S) : 11115 of 2000 CORAM: Talbot J KEY ISSUES: Development Application :- original plan for conventional subdivision - substitute subdivision plan for purpose of cluster housing development and community title - whether substitute plan can be regarded as an amendment - question of whether leave should be granted to rely on amended plans. LEGISLATION CITED: Land and Environment Court Act 1979 s 39(2) Blue Mountains Local Environmental Plan 1991 CASES CITED: DATES OF HEARING: 12/07/01 DATE OF JUDGMENT: 07/23/2001 APPLICANT: Mr C C Gough (Solicitor) SOLICITORS: Storey & Gough LEGAL REPRESENTATIVES: RESPONDENT: Mr J E Robson (Barrister) SOLICITORS: McPhee Kelshaw JUDGMENT: IN THE LAND AND Matter No. 11115 of 2000 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 23 July 2001 Blaxland Park Pty Limited Applicant v Blue Mountains City Council Respondent REASONS FOR JUDGMENT 1. On or about 28 April 2000, Blaxland Park Pty Limited (the applicant) lodged a development application with the respondent council seeking approval for a 37 lot residential subdivision with two public reserve lots in relation to land in Winnicoopa Road, Blaxland. 2. The applicant lodged substitute drawings in September 2000. 3. These proceedings were commenced by way of an appeal against the deemed refusal of the development application by the filing of a class 1 application on 24 November 2000. 4. On 18 April 2001 the council notified the applicant that the application for subdivision was refused. 5. By notice of motion dated 18 June 2001 the applicant is seeking leave to amend the development application and to rely on a revised set of plans. The revised proposal is for subdivision of the land into 37 lots for the purposes of a community title cluster housing development pursuant to cl 34.1(d) of the Blue Mountains Local Environmental Plan 1991 ("the LEP"). 6. The council opposes the application on two grounds:- (1) the revised proposal is not an amendment of the original development application but seeks to substitute for a conventional subdivision a development that is so different that council should be given the opportunity to consider it as a fresh application. (2) that even if the revised proposal is an amendment of the original application nevertheless the Court should not grant leave for the applicant to rely on the amended plans. 7. Cluster housing development is defined in the LEP as follows:- "Cluster housing development" means the development of land, containing an area of development excluded land, designed and for which consent is granted as an integrated whole and involving: (a) the concentration of the development on land within the development site that is most suited to development; and (b) the subdivision of land into five or more lots; and (c) the erection of a dwelling house on each lot (other than on any neighbourhood or common property lot or lots); and (d) at a minimum, the consolidation of the major part of the development excluded land within a neighbourhood or a common property lot; and (e) the implementation of management measures approved by the Council, to create and maintain fire protection zones, and to protect and enhance the environmental value of the development excluded land referred to in paragraph (d) and any other natural areas within the development site, that is subject to a scheme for joint ownership or a neighbourhood or a strata scheme. 8. Mr Robson submits on behalf of the council that the definition requires an application to deal with the separate elements of the definition in an holistic way. Accordingly, in order to have a proper application for cluster housing the applicant must show the inter-relationship between the proposed buildings. The reference to the granting of consent "as an integrated whole" and involving the specified elements, one of which is subdivision, leads to the inevitable conclusion that an application for cluster housing development is a distinct and different application to an application for approval for subdivision in the ordinary sense. It is the council's case, therefore, that the application for subdivision for the purpose of a cluster housing development is different in character and category to the original application made to the council. 9. The council puts its case, in this respect, in its written submissions as follows:- The Respondent submits that the newly adopted definition of "cluster housing development" requires that consent be granted for the development as a whole. One of the development components for which development consent is required is the erection of a dwelling house on each lot. Not only is development consent for each component of the development required but the development must also be designed "as an integrated whole". In other words, the housing component and all other components of the development, including the subdivision of land, must all be designed concurrently and must be submitted to the Respondent for assessment concurrently. 10. The reference to "the newly adopted definition" is a reference to its insertion in the LEP by Amendment No 25 on 23 March 2001. At the same time cl 34.1 was introduced. This clause provides in subclause (c) that the council may consent to subdivision of any land that is zoned Bushland Conservation or Residential Bushland Conservation only if each new lot proposed to be created and intended to be the site of a dwelling house includes land with a minimum area of 750m 2 , no part of which is development excluded land. However, subclause (c) does not apply to lots created as part of a cluster housing development. 11. Subclause (d) of cl 34.1 makes provision in respect of cluster housing development as follows:- The Council may consent to subdivision of any land for the purpose of cluster housing development only if it is satisfied that: (i) all development for the purpose of any dwelling house proposed to be erected as part of the cluster housing development; and (ii) all development ordinarily incidental and ancillary to a dwelling house, is not to be located on any development excluded land. 12. The council does not contend that cl 34.1(c) prohibits cluster housing development in the Bushland Conservation or Residential Bushland Conservation zones within which the subject land is situated. The subject land does, however, contain "development excluded land" . 13. The council concedes that the layout of the lots in the revised plan of subdivision is substantially the same as the layout in the original plan of subdivision. Mr Gough, who appears for the applicant, recognises that whereas public roads would have been created upon registration of the original subdivision plan the whole of the land, including access, will now remain in private ownership pursuant to the cluster housing scheme. 14. The applicant does not intend to provide specification of the proposed housing in support of the revised development proposal (even to the extent of an indicative concept). The council regards such a concept as a minimum requirement for a proper consideration of cluster housing development. 15. It is the council's position, therefore, that before it can entertain an application for cluster housing development it must have available to it the information required to enable it to establish compliance with the prescribed elements in the definition of cluster housing development. 16. It is not necessary to determine to what extent the applicant is required to provide the information at this stage in the proceedings. The point is that if the council is right the nature and character of the revised development proposal is so different to the original proposal that it must be categorised as a different development. 17. In order to demonstrate the point the council submits that the following additional supporting information is required from the applicant: (a) indicative plans of each dwelling proposed to be erected on each lot, including floor plans, elevations and cross-sections; (b) a plan of each lot, showing the location of the proposed dwelling within the lot boundaries, and the distances from the external walls of the proposed dwelling to the boundaries of each lot; (c) details of the proposed methods of construction of each dwelling, and of the materials and external finishes to be used (having regard to the zone objectives of the Residential Bushland Conservation zone); (d) details of the energy efficiency assessment for each of the proposed dwellings to identify the proposed rating of that dwelling (rather than the way in which the rating would be achieved); (e) additional information in the statement of environmental effects, addressing the private open space areas of each proposed dwelling and issues of overshadowing and solar access for each dwelling; (f) identification of the "development excluded land" within the lot, including proposed buffers around the Environmental Constraint Area, the Schedule 3 environmentally sensitive vegetation units, the rare species of flora and the watercourses on the site, together with details of any significant landscape or special features that are worthy of preservation; (g) the management measures proposed by the Applicant to protect the development excluded land that is to be consolidated within any proposed neighbourhood or common property lot, and to create and maintain Fire Protection Zones and any other natural areas within the development site; and (h) details of the way in which both the individual lots and the community areas, other than natural areas, will be landscaped. 18. Moreover, if the proposed development is to be regulated under community title, as the description of the amended proposal suggests, then the council says that it will require the following further information in that respect:- (a) details of the way in which public access through the site, to existing public land beyond the site, and to Reserve Avenue/Western Avenue and Gullalie Place, would be maintained; (b) details of domestic waste removal proposals; (c) details of road maintenance proposals, given that the roads will be the property of the community body; (d) details of the way in which the obligations that will be imposed upon the community body, and on individual lots within the development, will be communicated to prospective purchasers of land; (e) confirmation of whether there will be one community association or a number of precinct or neighbourhood associations; (f) details of the proposed staging of the development, and whether limited subdivision releases will be required at different stages; and (g) architectural and landscape controls (assuming that the development is not "cluster housing development", as defined in the LEP), in relation to the individual lots within the community scheme. 19. The degree of change to the boundaries of the individual lots, on its face, justifies regarding the proposed plans as an amendment of the original subdivision proposal. Nevertheless, a consideration of the surrounding circumstances of the proposed amendments to the development application, in particular, the wider ambit of supporting material required and the changed category or character of the whole development, leads the Court to the inevitable conclusion that the development now proposed by the applicant is a new development proposal demanding a fresh application. 20. The Court has no power and hence lacks jurisdiction to entertain a new development application. Even if that is not correct it would not be appropriate to usurp the council's role and thereby foreclose the opportunity for it to initially consider and determine the application as an application for development consent to subdivision for a cluster housing and community title development. Furthermore, it is imperative that the members of the public be afforded the prospect of considering any revised proposal for development of a site that has, according to council, already attracted widespread controversy. 21. It follows, therefore, that the applicant is not able to proceed with an application for subdivision for the purposes of a community title cluster housing development unless it lodges a separate development application in respect thereof. 22. It is not sufficient, as Mr Gough contends, to proceed with the application for consent to subdivision without concurrently considering, at least, the proposed cluster housing development and probably also the community title. It would be unrealistic to simply deal with those aspects by way of conditions of consent, to the effect that the subdivision is not to proceed unless the proposal for cluster housing and community title is subsequently approved. All three elements are so entwined that an integrated development application is required. The subdivision is but one of the critical elements in the concept of cluster housing. The wider enquiry is also demanded by cl 34.1(d)(i) and (ii). 23. In the circumstances, the Court is not prepared to exercise its power pursuant to s 39(2) of the Land and Environment Court Act 1979 to consent to the amendment or variation of the development application as proposed by the applicant. Furthermore, it is the view of the Court that the applicant should not be entitled to rely upon the amended plans even if they could be regarded as being in the same context as the original development application. 24. The Court makes the following orders:- 1. The notice of motion dated 18 June 2001 is dismissed. 2. The exhibits may be returned. 3. The matter to be listed for further callover before the Registrar at a date convenient to the parties and the Court. 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